AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 8, 2003
REGISTRATION NO. 333-105876
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
INTERACTIVECORP
(Exact name of Registrant as Specified in its Charter)
DELAWARE 59-2712887
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
152 WEST 57TH STREET
NEW YORK, NEW YORK 10019
(Address of Principal Executive
Offices and Zip Code)
AMENDED AND RESTATED 2001 STOCK INCENTIVE PLAN OF LENDINGTREE,
INC.
AMENDED AND RESTATED 1999 STOCK INCENTIVE PLAN OF LENDINGTREE,
INC.
1998 STOCK OPTION PLAN OF LENDINGTREE, INC.
1997 STOCK OPTION PLAN OF CREDITSOURCE USA, INC., FORMERLY KNOWN
AS LEWISBURG VENTURES, INC.
(FULL TITLE OF PLANS)
----------------------
DAVID ELLEN, ESQ.
VICE PRESIDENT, ACTING GENERAL COUNSEL AND SECRETARY
INTERACTIVECORP
152 WEST 57TH STREET
NEW YORK, NEW YORK 10019
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(212) 314-7300
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO EMPLOYEES: From time
to time after the effective date of this Registration Statement and the
effective time of the merger of a wholly owned subsidiary of InterActiveCorp
with and into LendingTree, Inc.
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO MAXIMUM MAXIMUM AMOUNT
SECURITIES TO BE BE OFFERING AGGREGATE OF
REGISTERED REGISTERED PRICE OFFERING REGISTRATION
PER SHARE PRICE FEE
- ---------------------------------------------------------------------------
Common Stock, $0.01 par 3,419,514 (1) N/A N/A N/A (2)
value
- ---------------------------------------------------------------------------
(1)This Post-Effective Amendment No. 1 on Form S-8 covers up to 3,419,514
shares of common stock, par value $0.01 per share ("IAC Common Stock"), of
InterActiveCorp ("IAC"), formerly USA Interactive, of which 3,419,514 shares
of IAC Common Stock were originally registered on IAC's Registration
Statement on Form S-4 (File No. 333-105876), as amended, initially filed with
the Securities and Exchange Commission on June 5, 2003, to which this
Amendment relates (the "Registration Statement").
(2)Not applicable. All filing fees payable in connection with the registration
of these securities were paid in connection with the Registration Statement.
EXPLANATORY NOTE
InterActiveCorp ("IAC" or the "Registrant"), formerly USA Interactive,
hereby amends its Registration Statement on Form S-4 (File No. 333-105876) (the
"Form S-4") by filing this Post-Effective Amendment No. 1 on Form S-8 to Form
S-4 (this "Amendment") relating to up to (i) 1,937,386 shares of common stock,
par value $0.01 per share, of IAC ("IAC Common Stock") issuable by IAC in
connection with the Amended and Restated 2001 Stock Incentive Plan of
LendingTree, Inc. ("LendingTree") (the "2001 Plan"), (ii) 809,732 shares of IAC
Common Stock issuable by IAC in connection with the Amended and Restated 1999
Stock Incentive Plan of LendingTree (the "1999 Plan"), (iii) 354,688 shares of
IAC Common Stock issuable by IAC in connection with the 1998 Stock Option Plan
of LendingTree (the "1998 Plan") and (iv) 317,708 shares of IAC Common Stock
issuable by IAC in connection with the 1997 Stock Option Plan of CreditSource
USA, Inc., formerly known as Lewisburg Ventures, Inc. (the "1997 Plan" and,
together with the 2001 Plan, the 1999 Plan and the 1998 Plan, the "Plans"). All
of such shares of IAC Common Stock were originally registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to the Form
S-4.
On August 8, 2003, Forest Merger Corp., a Delaware corporation and a
wholly owned subsidiary of IAC ("Forest Merger Corp."), merged (the "Merger")
with and into LendingTree, pursuant to the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of May 5, 2003, by and among IAC, Forest Merger
Corp. and LendingTree. Pursuant to the Merger Agreement, at the time the Merger
was consummated, each share of common stock, par value $0.01 per share, of
LendingTree ("LendingTree Common Stock") issued and outstanding immediately
prior to the time the Merger was consummated (other than LendingTree Common
Stock (i) held by LendingTree as treasury stock or (ii) owned by IAC immediately
prior to the time the Merger was consummated) was converted into the right to
receive (i) 0.6199 (the "Exchange Ratio") of a fully paid and nonassessable
share of IAC Common Stock and (ii) cash instead of any fractional share of IAC
Common Stock that would otherwise have been issued, without interest. Pursuant
to the Merger Agreement, at the time the Merger was consummated, each share of
Series A 8% Convertible Preferred Stock, par value $0.01 per share, of
LendingTree ("LendingTree Preferred Stock") (other than LendingTree Preferred
Stock (i) held by LendingTree as treasury stock, (ii) owned by IAC immediately
prior to the time the Merger was consummated or (iii) as to which appraisal
rights have been perfected under Delaware law) was converted into the right to
receive (i) the number of shares of IAC Common Stock that each share of
LendingTree Preferred Stock would have had a right to receive under the Merger
Agreement had such LendingTree Preferred Stock been converted into LendingTree
Common Stock immediately before the filing by LendingTree of a properly executed
certificate of merger (the "Certificate of Merger") or at such later time as
agreed to by the parties to the Merger Agreement and set forth in the
Certificate of Merger, and (ii) cash instead of any fractional share of IAC
Common Stock that would otherwise have been issued, without interest. Pursuant
to the Merger Agreement, the outstanding stock options granted under the Plans
are no longer exercisable for shares of LendingTree Common Stock but, instead,
are exercisable for shares of IAC Common Stock based on the Exchange Ratio, as
set forth in the Merger Agreement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
All information required by Part I to be contained in the prospectus is
omitted from this Amendment in accordance with Rule 428 under the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
_______________________________________
The following documents previously filed by IAC with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated herein by reference:
(a) IAC's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002.
(b) IAC's Quarterly Report on Form 10-Q for the quarter ended March
31, 2003.
(c) IAC's Current Reports on Form 8-K filed on January 21, 2003,
February 7, 2003, two filed on February 12, 2003, two filed on February 26,
2003, March 19, 2003, March 25, 2003, March 26, 2003, April 9, 2003, April 10,
2003, April 15, 2003, May 2, 2003, May 5, 2003, June 4, 2003, June 19, 2003,
June 23, 2003, August 5, 2003 and August 8, 2003 (in each case other than
information furnished under Regulation FD).
(d) Amendment No. 1 to Registration Statement on Form S-4 (file no.
333-105876) filed on July 10, 2003 (only with respect to the sections entitled
"SUMMARY--Selected Unaudited Pro Forma Combined Condensed Financial Information
of IAC," "UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL INFORMATION OF IAC"
and "DESCRIPTION OF IAC CAPITAL STOCK").
All documents subsequently filed by IAC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
_________________________
Not applicable.
2
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
______________________________________
The legality of the shares of IAC Common Stock to be issued in
connection with the Plans has been passed upon for IAC by Wachtell, Lipton,
Rosen & Katz, New York, New York.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
_________________________________________
The Registrant's Restated Certificate of Incorporation, as amended,
limits, to the maximum extent permitted by Delaware law, the personal liability
of directors for monetary damages for breach of their fiduciary duties as a
director. The Registrant's Amended and Restated By-Laws provide that the
directors and officers (and legal representatives of such directors and
officers) will be indemnified to the fullest extent authorized by the General
Corporation Law of the State of Delaware (the "DGCL") with respect to
third-party actions, suits, investigations or proceedings provided that any such
person has met the applicable standard of conduct set forth in the DGCL
described below. The Registrant's Amended and Restated By-Laws further provide
that directors and officers (and legal representatives of such directors and
officers) will be indemnified with respect to actions or suits initiated by such
person only if such action was first approved by the board of directors. The
Registrant's Amended and Restated By-Laws allow the Registrant to pay all
expenses incurred by a director or officer (or legal representatives of such
directors or officers) in defending any proceeding in which the scope of the
indemnification provisions as such expenses are incurred in advance of its final
disposition, upon an undertaking by such party to repay such expenses, if it is
ultimately determined that such party was not entitled to indemnity by the
Registrant. From time to time, officers and directors may be provided with
indemnification agreements that are consistent with the foregoing provisions.
The Registrant has policies of directors' and officers' liability insurance
which insure directors and officers against the costs of defense, settlement
and/or payment of judgment under certain circumstances. The Registrant believes
that these agreements and arrangements are necessary to attract and retain
qualified persons as directors and officers.
Section 145 of the DGCL provides that a corporation may indemnify a
director, officer, employee or agent who was or is a party, or is threatened to
be made a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he was a director,
officer, employee or agent of the corporation or was serving at the request of
the corporation against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
___________________________________
Not Applicable.
ITEM 8. EXHIBITS
________
See Exhibit Index.
3
ITEM 9. UNDERTAKINGS
____________
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1) (ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
4
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Amendment to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of New York, State of New York, on this 8th day of August, 2003.
INTERACTIVECORP
By: /s/ Dara Khosrowshahi
--------------------------------------
Name: Dara Khosrowshahi
Title: Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated
as of August 8, 2003.
SIGNATURE TITLE
/s/ Barry Diller* Chairman of the Board, Chief
________________________________ Executive
Barry Diller
/s/ Victor A. Kaufman*
________________________________
Victor A. Kaufman Vice Chairman and Director
/s/ William J. Severance*
________________________________
William J. Severance Vice President and Controller
(Chief Accounting Officer)
/s/ Dara Khosrowshahi
________________________________
Dara Khosrowshahi Executive Vice President
and Chief Financial Officer
/s/ Richard N. Barton*
________________________________
Richard N. Barton Director
/s/ Robert R. Bennett*
________________________________
Robert R. Bennett Director
/s/ Edgar Bronfman, Jr.*
________________________________
Edgar Bronfman, Jr. Director
/s/ Donald R. Keough* Director
________________________________
Donald R. Keough
/s/ Marie-Josee Kravis*
________________________________
Marie-Josee Kravis Director
/s/ John C. Malone*
________________________________
John C. Malone Director
/s/ Gen. H. Norman Schwarzkopf*
________________________________
Gen. H. Norman Schwarzkopf Director
/s/ Alan Spoon*
________________________________
Alan Spoon Director
/s/ Diane Von Furstenberg*
_______________________________
Diane Von Furstenberg Director
* By: /s/ Dara Khosrowshahi
________________________________
Dara Khosrowshahi
Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
________________ ______________________________________________________________
5.1 Opinion of Wachtell, Lipton, Rosen & Katz as to the validity
of the shares being issued.
23.1 Consent of Ernst & Young LLP.
23.3 Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit
5.1 hereto).
24.1 Powers of Attorney.*
99.11 Amended and Restated 2001 Stock Incentive Plan of LendingTree,
Inc. (previously filed as Appendix A to the LendingTree, Inc.
Proxy Statement on Schedule 14A filed March 14, 2003).
99.12 Amended and Restated 1999 Stock Incentive Plan of LendingTree,
Inc. (previously filed as Exhibit 10.17 to the LendingTree,
Inc. Registration Statement on Form S-1/A filed January 27,
2000).
99.13 1998 Stock Option Plan of LendingTree, Inc. (previously filed
as Exhibit 10.4 to the LendingTree, Inc. Registration
Statement on Form S-1/A filed January 11, 2000).
99.14 1997 Stock Option Plan of CreditSource USA, Inc., formerly
known as Lewisburg Ventures, Inc. (previously filed as Exhibit
10.5 to the LendingTree, Inc. Registration Statement on Form
S-1/A filed January 11, 2000).
* Previously filed on June 5, 2003.
Exhibit 5.1
[Wachtell, Lipton, Rosen & Katz Letterhead]
August 8, 2003
InterActiveCorp
152 West 57th Street
New York, New York 10019
Re: Post-Effective Amendment No. 1 on Form S-8
to Registration Statement on Form S-4 (File No. 333-105876)
___________________________________________________________
Ladies and Gentlemen:
We have acted as special counsel to InterActiveCorp, a
Delaware corporation (the "Company"), in connection with the preparation and
filing of Post-Effective Amendment No. 1 on Form S-8 (the "Post-Effective
Amendment") to the registration statement on Form S-4 (File No. 333-105876) of
IAC (as amended, the "Registration Statement") relating to up to 3,419,514
shares of common stock, par value $0.01 per share (the "Common Stock"), of the
Company issuable by the Company pursuant to the Amended and Restated 2001 Stock
Incentive Plan of LendingTree, Inc., the Amended and Restated 1999 Stock
Incentive Plan of LendingTree, Inc., the 1998 Stock Option Plan of LendingTree,
Inc. and the 1997 Stock Option Plan of CreditSource USA, Inc., formerly known as
Lewisburg Ventures, Inc. (collectively, the "Plans").
In rendering this opinion, we have examined such corporate
records and other documents (including the Company's amended and restated
certificate of incorporation, as amended, amended and restated bylaws, the
Registration Statement and the Plans), and we have reviewed such matters of law,
as we have deemed necessary or appropriate. In rendering this opinion, we have,
with your consent, relied upon oral and written representations of officers of
the Company and certificates of officers of the Company and public officials
with respect to the accuracy of the factual matters addressed in such
representations and certificates. In addition, in rendering this opinion we
have, with your consent, assumed the genuineness of all signatures or
instruments relied upon by us, and the conformity of certified copies submitted
to us with the original documents to which such certified copies relate.
We are members of the Bar of the State of New York and we
express no opinion as to the laws of any jurisdiction other than the federal
laws of the United States, the General Corporation Law of the State of Delaware
and the laws of the State of New York.
Based on and subject to the foregoing, we are of the opinion
that the Common Stock will be, upon issuance and delivery pursuant to the terms
and conditions set forth in the Registration Statement and the Plans, legally
issued, fully paid and nonassessable.
[Wachtell, Lipton, Rosen & Katz Letterhead]
August 8, 2003
Page 2
We hereby consent to be named in the Registration Statement
and in the related prospectus contained therein as the attorneys who passed upon
the legality of the Common Stock and to the filing of a copy of this opinion as
Exhibit 5.1 to the Registration Statement. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Post-Effective Amendment No. 1 on Form S-8 to Form S-4 No. 333-105876) of
InterActiveCorp (formerly USA Interactive) of our report dated February 6, 2003,
with respect to the consolidated financial statements and schedule of USA
Interactive (presently InterActiveCorp) included in its Annual Report (Form
10-K) for the year ended December 31, 2002, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
August 7, 2003