AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 2003
REGISTRATION NO. 333-104973
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
ON FORM S-8
TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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 10019
OFFICES) (ZIP CODE)
EXPEDIA, INC. 1999 AMENDED AND RESTATED STOCK OPTION PLAN
EXPEDIA, INC. 1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
EXPEDIA, INC. AMENDED AND RESTATED 2001 STOCK PLAN
(FULL TITLE OF PLANS)
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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)
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Calculation of Registration Fee
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT
TITLE OF EACH CLASS OF AMOUNT TO OFFERING AGGREGATE OF
SECURITIES TO BE BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE
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- --------------------------------------------------------------------------------
Common Stock, $0.01 38,146,368 (1) N/A N/A N/A (2)
par value
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(1) This Post-Effective Amendment No. 2 on Form S-8 covers up to 38,146,368
shares of common stock, par value $0.01 per share ("IAC Common Stock"), of
InterActiveCorp ("IAC"), formerly USA Interactive, of which 38,146,368 shares
IAC Common Stock were originally registered on IAC's Registration Statement
on Form S-4 (File No. 333-104973), as amended, initially filed with the
Securities and Exchange Commission on May 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 (the "Form S-4") by filing
this Post-Effective Amendment No. 2 on Form S-8 to Form S-4 (this "Amendment")
relating to up to (i) 27,195,924 shares of common stock, par value $0.01 per
share, of IAC ("IAC Common Stock") issuable by IAC in connection with the
exercise of options that have been granted under the Expedia, Inc. 1999 Amended
and Restated Stock Option Plan ("1999 Stock Plan"), (ii) 96,939 shares of IAC
Common Stock issuable by IAC in connection with the exercise of options that
have been granted under the Expedia, Inc. 1999 Stock Option Plan for
Non-Employee Directors ("Directors' Plan"), which, along with options issuable
under the 1999 Stock Plan, became options to purchase shares of IAC Common Stock
as described below, and (iii) 10,853,505 shares of IAC Common Stock issuable by
IAC in connection with the Amended and Restated 2001 Stock Plan ("2001 Plan"
and, together with the 1999 Stock Plan and Directors' 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, Equinox Merger Corp., a Washington corporation and a
wholly owned subsidiary of IAC, merged (the "Merger") with and into Expedia,
Inc., a Washington corporation ("Expedia"), pursuant to the Agreement and Plan
of Merger (the "Merger Agreement"), dated as of March 18, 2003, by and among USA
Interactive (now IAC), Equinox Merger Corp. and Expedia. At the time the Merger
was consummated (the "Effective Time"), among other things, each issued and
outstanding share of common stock, par value $.01 per share, of Expedia
("Expedia Common Stock"), other than shares held by IAC or Expedia, was
converted into 1.93875 (the "Exchange Ratio") shares of IAC Common Stock.
Pursuant to the Merger Agreement, the outstanding stock options and restricted
stock units granted under the Plans are no longer exercisable for or to be
settled in shares of Expedia Common Stock but, instead, are exercisable for or
to be settled in 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 Reports on Form 10-Q for the quarters ended March 31,
2003 and June 30, 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, August 8, 2003 and August 11, 2003 (in each case other than
information furnished under Regulation FD).
(d) Amendment No. 1 to Registration Statement on Form S-4 (file no.
333-104973) filed on June 9, 2003 (only with respect to pro forma financial
statement information and the description of capital stock contained therein).
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.
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 were 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 Delaware
General Corporation Law 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 Delaware General Corporation Law
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
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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 and, to the extent such officers and directors serve as executive
officers or directors of subsidiaries of the Registrant, consistent with the
indemnification provisions of the charter documents of such subsidiaries. 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 General Delaware General Corporation Law 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.
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;
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(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
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.
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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 13th day of August, 2003.
INTERACTIVECORP
By: /s/ Dara Khosrowshahi
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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 13, 2003.
SIGNATURE TITLE
/s/ Barry Diller* Chairman of the Board, Chief Executive
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Barry Diller
/s/ Victor A. Kaufman*
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Victor A. Kaufman Vice Chairman and Director
/s/ William J. Severance*
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William J. Severance Vice President and Controller
(Chief Accounting Officer)
/s/ Dara Khosrowshahi
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Dara Khosrowshahi Executive Vice President
and Chief Financial Officer
/s/ Richard N. Barton*
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Richard N. Barton Director
/s/ Robert R. Bennett*
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Robert R. Bennett Director
/s/ Edgar Bronfman, Jr.*
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Edgar Bronfman, Jr. Director
/s/ Donald R. Keough* Director
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Donald R. Keough
/s/ Marie-Josee Kravis*
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Marie-Josee Kravis Director
/s/ John C. Malone*
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John C. Malone Director
/s/ Gen. H. Norman Schwarzkopf*
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Gen. H. Norman Schwarzkopf Director
/s/ Alan Spoon*
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Alan Spoon Director
/s/ Diane Von Furstenberg*
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Diane Von Furstenberg Director
* By: /s/ Dara Khosrowshahi
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Dara Khosrowshahi
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ---------- --------------------------------------------------------------------
4.1 Restated Certificate of Incorporation of InterActiveCorp
(incorporated by reference to Exhibit 3.1 to InterActiveCorp's
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000).
4.2 Amendment to the Restated Certificate of Incorporation of
InterActiveCorp (incorporated by reference to Exhibit A of
InterActiveCorp's Definitive Information Statement filed on November
19, 2001).
4.3 Certificate of Ownership and Merger Merging Taiwan Travel, Inc.
into USA Networks, Inc. (incorporated by reference to
InterActiveCorp's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2002).
4.4 Certificate of Ownership and Merger Merging WLS Holdings, Inc. into
USA Interactive and Amendment Thereto (incorporated by reference to
Exhibit 4.4 to InterActiveCorp's Form S-8 filed on July 3, 2003).
4.5 Amended and Restated By-Laws of InterActiveCorp (incorporated by
reference to Exhibit 99.1 of InterActiveCorp's Current Report on
Form 8-K, filed on September 20, 2002).
4.6 Certificate of Designations of Series A Cumulative Convertible
Preferred Stock of InterActiveCorp (incorporated by reference to
Exhibit 4.3 to InterActiveCorp's Annual Report on Form 10-K for the
year ended December 31, 2001).
4.7 Expedia, Inc. 1999 Amended and Restated Stock Option Plan
(previously filed as Exhibit 99.1 to Expedia's Form S-8 filed on
November 9, 2001 and incorporated herein by reference).
4.8 Expedia, Inc. 1999 Directors' Stock Option Plan (previously filed
as a Exhibit 10.12 to Expedia's Form S-1, Registration No.
333-87623, filed on September 23, 1999 and incorporated herein by
reference).
4.9 Expedia, Inc. Amended and Restated 2001 Stock Plan (previously
filed as Exhibit 10.13 to Expedia's Form 10-K filed on March 31,
2001 and incorporated herein by reference).
5.1 Opinion of Wachtell, Lipton, Rosen & Katz as to the legality of the
shares to be issued.
23.1 Consent of Ernst & Young LLP, New York, New York.
23.2 Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1).
24.1 Powers of Attorney.*
* Previously filed on May 5, 2003.
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Exhibit 5.1
[Wachtell, Lipton, Rosen & Katz Letterhead]
August 13, 2003
InterActiveCorp
152 West 57th Street
New York, New York 10019
Re: Post-Effective Amendment No. 2 on Form S-8
to Registration Statement on Form S-4 (File No. 333-104973)
Ladies and Gentlemen:
We have acted as special counsel to InterActiveCorp, a Delaware corporation
(the "Company"), in connection with the preparation and filing of the
Post-Effective Amendment No. 2 on Form S-8 to the registration statement on Form
S-4 (File No. 333-104973) (as amended, the "Registration Statement") relating to
up to 38,146,368 shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Company to be issued by the Company pursuant to the Expedia,
Inc. 1999 Amended and Restated Stock Option Plan, Expedia, Inc. 1999 Stock
Option Plan for Non-Employee Directors and Expedia, Inc. Amended and Restated
2001 Stock Option Plan (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
August 13, 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. 2 on Form S-8 to Form S-4 No. 333-104973) 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