AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 2003
REGISTRATION NO. 333-105014
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
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)
HOTELS.COM 2000 STOCK PLAN
HOTELS.COM DIRECTORS' STOCK OPTION PLAN
HOTELS.COM 2003 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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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 Hotels.com.
CALCULATION OF REGISTRATION FEE
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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
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Common Stock, $0.01 par 6,731,280 (1) N/A N/A N/A (2)
value
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(1)This Post-Effective Amendment No. 1 on Form S-8 covers up to 6,731,280
shares of common stock, par value $0.01 per share ("IAC Common Stock"), of
InterActiveCorp ("IAC"), formerly USA Interactive, of which 6,686,676 shares
IAC Common Stock were originally registered on IAC's Registration Statement
on Form S-4 (File No. 333-105014), 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 the Form S-4 (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) 6,367,879 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 Hotels.com 2000 Stock
Plan, as amended ("2000 Plan"), (ii) 67,997 shares of IAC Common Stock issuable
by IAC in connection with the exercise of options that have been granted under
the Hotels.com Directors' Stock Option Plan ("Directors' Plan"), which, along
with shares issuable under the 2000 Plan, became options to purchase shares of
IAC Common Stock as described below and (iii) 295,404 shares of IAC Common Stock
issuable by IAC in connection with the Hotels.com 2003 Stock Plan ("2003 Plan"
and, together with the 2000 Plan and the 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 June 23, 2003, Hermitage Merger Corp., a Delaware corporation and a
wholly owned subsidiary of IAC, merged (the "Merger") with and into Hotels.com,
a Delaware corporation ("Hotels.com"), pursuant to the Agreement and Plan of
Merger (the "Merger Agreement"), dated as of April 9, 2003, by and among USA
Interactive, Hermitage Merger Corp. and Hotels.com. At the time the Merger was
consummated (the "Effective Time"), among other things, each issued and
outstanding share of Class A common stock, par value $.01 per share, of
Hotels.com ("Hotels.com Common Stock"), other than shares held by IAC or
Hotels.com, was converted into 2.4 (the "Exchange Ratio") shares of IAC Common
Stock, and each issued and outstanding share of Class B common stock, par value
$.01 per share, of Hotels.com was cancelled. 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 Hotels.com 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.
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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 and June 23, 2003 (in each case other than
information furnished under Regulation FD).
(d) Sections entitled "Summary-Selected Unaudited Pro Forma Combined
Condensed Financial Information of IAC" and "Unaudited Pro Forma
Combined Condensed Financial Statements of IAC" contained in IAC's
Registration Statement on Form S-4 (File No. 333-105014) filed on May
5, 2003, as amended May 21, 2003.
(e) The description of IAC common stock contained in IAC's Registration
Statement on Form S-4 (File No. 333-105876) filed on June 5, 2003,
including any amendment or report filed for the purpose of updating
such description.
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.
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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 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 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.
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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;
(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
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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 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 2nd day of July, 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 July 2, 2003.
SIGNATURE TITLE
/s/ BARRY DILLER*
-------------------------------- Chairman of the Board, Chief Executive
Barry Diller Officer and Director
/s/ VICTOR A. KAUFMAN*
-------------------------------- Vice Chairman and Director
Victor A. Kaufman
/s/ WILLIAM J. SEVERANCE*
-------------------------------- Vice President and Controller
William J. Severance (Chief Accounting Officer)
/s/ Dara Khosrowshahi
-------------------------------- Executive Vice President
Dara Khosrowshahi and Chief Financial Officer
/s/ RICHARD N. BARTON*
-------------------------------- Director
Richard N. Barton
/s/ ROBERT R. BENNETT*
-------------------------------- Director
Robert R. Bennett
/s/ EDGAR BRONFMAN, JR.*
-------------------------------- Director
Edgar Bronfman, Jr.
/s/ DONALD R. KEOUGH*
-------------------------------- Director
Donald R. Keough
/s/ MARIE-JOSEE KRAVIS*
-------------------------------- Director
Marie-Josee Kravis
/s/ JOHN C. MALONE*
-------------------------------- Director
John C. Malone
/s/ GEN. H. NORMAN SCHWARZKOPF*
-------------------------------- Director
Gen. H. Norman Schwarzkopf
/s/ ALAN SPOON*
-------------------------------- Director
Alan Spoon
/s/ DIANE VON FURSTENBERG*
-------------------------------- Director
Diane Von Furstenberg
* By:/s/ Dara Khosrowshahi
--------------------------
Dara Khosrowshahi
Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT DESCRIPTION
NUMBER
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.
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 2000 Stock Option Plan (previously filed on February 7, 2000 as an
exhibit to Hotels.com's Registration Statement on Form S-1, Amendment
No. 3, and incorporated herein by reference, Registration No.
333-90601).
4.8 Directors' Stock Option Plan (previously filed on February 7, 2000 as
an exhibit to Hotels.com's Registration Statement on Form S-1,
Amendment No. 3, and incorporated herein by reference, Registration
No. 333-90601).
4.9 2003 Stock Option Plan.
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.