As filed with the Securities and Exchange Commission on May 8, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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USA INTERACTIVE
(Exact name of Registrant as specified in its charter)
DELAWARE 59-2712887
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
152 WEST 57TH STREET
NEW YORK, NEW YORK 10019
(212) 314-7300
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
JULIUS GENACHOWSKI
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
USA INTERACTIVE
152 WEST 57TH STREET
NEW YORK, NEW YORK 10019
(212) 314-7300
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
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WITH A COPY TO:
PAMELA S. SEYMON
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6150
(212) 403-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: |_|
CALCULATION OF REGISTRATION FEE CHART
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Proposed Proposed
Maximum Maximum Amount
Amount to Offering Aggregate of
Title of each Class of be Price Per Offering Registration
Securities to be Registered(1) Registered Security Price Fee
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Common Stock, $0.01 par value. 4,400,000 $22.59(2) $99,396,000.00(3) $8,042(4)
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(1) This registration statement relates to the issuance of up to 4,400,000
shares of common stock, par value $.01 per share, of the Registrant ("USA
common stock") upon the exercise of options to acquire USA common stock
granted pursuant to the Stock Option Agreement, dated as of February 18,
2000, by and between the Registrant and Dr. Georg Kofler (the "Agreement").
This registration statement also relates to an indeterminable number of
additional shares of USA common stock that may become issuable pursuant to
the anti-dilution provisions of the Agreement.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to 457(h)(1) of the Securities Act of 1933, based on the current exercise
price of the options of $22.59 per share of USA common stock.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to 457(h)(1) of the Securities Act of 1933, based on the proposed maximum
offering price per security and the number of shares of USA common stock
being registered.
(4) Calculated by multiplying 0.00008090 by the proposed maximum aggregate
offering price.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROPSECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE SUCH OFFER AND SALE IS NOT PERMITTED.
PROSPECTUS
SUBJECT TO COMPLETION, DATED MAY 8, 2003
[USA INTERACTIVE LOGO]
4,400,000 SHARES OF USA COMMON STOCK
ISSUABLE UPON EXERCISE OF USA OPTIONS
This prospectus relates to the issuance by us of up to 4,400,000 shares of
common stock, par value $0.01 per share ("USA common stock"), of USA Interactive
("USA") upon the exercise of options issued by USA to Dr. Georg Kofler under the
Stock Option Agreement, dated as of February 18, 2000, by and between USA and
Dr. Kofler (the "Agreement"). This prospectus also relates to an indeterminable
number of additional shares of USA common stock that may become issuable
pursuant to the anti-dilution provisions of the Agreement. Throughout this
prospectus, we refer to the options granted under the Agreement as the
"Options." See "PLAN OF DISTRIBUTION," on page 6, for more information regarding
the terms and conditions of the Agreement and the Options.
Other than as described in this prospectus, we do not know whether or when
holders of the Options may exercise.
The current exercise price of the Options is $22.59 per share of USA common
stock, which exercise price is subject to adjustment in specified circumstances.
We will receive the cash exercise price of the Options to the extent that they
are exercised for cash.
USA common stock is quoted on the Nasdaq National Market under the symbol
"USAI." On , 2003, the last reported sale price of USA common stock prior to
printing of this prospectus was $ per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 TO READ ABOUT FACTORS YOU SHOULD
CONSIDER IN CONNECTION WITH PURCHASING USA COMMON STOCK.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES IN ANY JURISDICTION WHERE SUCH AN
OFFER OR SOLICITATION WOULD BE ILLEGAL.
The date of this prospectus is , 2003
TABLE OF CONTENTS
PAGE
ABOUT THIS PROSPECTUS........................................................1
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING INFORMATION..................1
WHERE YOU CAN FIND MORE INFORMATION..........................................2
SUMMARY......................................................................3
THE OFFERING.................................................................4
RISK FACTORS.................................................................4
USE OF PROCEEDS..............................................................6
PLAN OF DISTRIBUTION.........................................................6
DESCRIPTION OF USA COMMON STOCK..............................................7
CERTAIN MATERIAL UNITED STATES FEDERAL TAX CONSEQUENCES......................9
LEGAL MATTERS...............................................................12
EXPERTS.....................................................................12
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we are filing with
the Securities and Exchange Commission (the "SEC") utilizing a "shelf"
registration process. Under this shelf process, we may, from time to time until
the earlier of the expiration or exercise of all of the Options, issue shares of
USA common stock being offered under this prospectus upon the exercise of such
Options.
This prospectus provides you with a general description of the USA common
stock being offered hereunder. To the extent required, the number of shares of
USA common stock to be sold, purchase price, public offering price, the names of
any such agent or dealer and any applicable commission or discount will be set
forth in an accompanying prospectus supplement. You should read both this
prospectus and any prospectus supplement together with the additional
information described in the section "WHERE YOU CAN FIND MORE INFORMATION" on
page 2.
You should rely only on the information provided in this prospectus and in
any prospectus supplement, including the information incorporated by reference.
We have not authorized anyone to provide you with different information. We are
not offering the securities being offered by this prospectus in any state where
the offer is not permitted. You should not assume that the information in this
prospectus, or any supplement to this prospectus, is accurate at any date other
than the date indicated on the cover page of these documents.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING INFORMATION
This prospectus and the SEC filings that are incorporated by reference into
this prospectus contain "forward-looking statements" within the meaning of the
securities laws. These forward-looking statements include, but are not limited
to, statements relating to our industry, plans, objectives, expectations,
intentions, assumptions, anticipated financial performance, business prospects,
other statements contained in this prospectus that are not historical facts
and/or statements preceded by, followed by or that include the words the words
"believes," "could," "expects," "anticipates," "estimates," "intend," "plans,"
"projects," "seeks," or similar expressions. We have based these forward-looking
statements on our current expectations and projections about future events,
based on the information currently available to us. For those statements, we
claim the protection of the safe harbors for forward-looking statements
contained in the Private Securities Litigation Reform Act of 1995. These
forward-looking statements are subject to risks, uncertainties and assumptions,
including those described in the section "RISK FACTORS," that may affect the
operations, performance, development and results of our business. You are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date stated, or if no date is stated, as of the date of
this prospectus.
You should understand that the following important factors, in addition to
those discussed in the documents incorporated in this prospectus by reference,
could affect our future results and could cause those results to differ
materially from those expressed in such forward-looking statements:
o Material adverse changes in economic conditions generally, or in such
conditions affecting USA's markets or industries;
o Future regulatory and legislative actions and conditions affecting
USA's operating areas;
o Competition from others;
o Successful integration of our divisions' management structures;
o Product demand and market acceptance;
o The ability to protect proprietary information and technology or to
obtain necessary licenses on commercially reasonable terms;
o The ability to maintain the integrity of USA's systems and
infrastructure;
o The ability to expand into and successfully operate in foreign
markets;
o Obtaining and retaining key executives and employees;
o Acts of terrorism;
o War or political instability; and
1
o Other risks and uncertainties as may be detailed from time to time in
our public announcements and filings with the Securities and Exchange
Commission.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or any other
reason. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed in this prospectus may not occur.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC under the Exchange Act. You may read and copy this
information at the SEC's public reference room at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our SEC filings are also available to
you free of charge at the SEC's website at www.sec.gov.
As allowed by SEC rules, this prospectus does not contain all the
information you can find in the registration statement or the exhibits to the
registration statement. The SEC allows us to "incorporate by reference"
information into this prospectus, which means that we can disclose important
information to you by referring you to another document filed separately with
the SEC. The information incorporated by reference is deemed to be part of this
prospectus, except for any information superseded by information contained
directly in this prospectus. Information that we subsequently file with the SEC
will automatically update this prospectus. This prospectus incorporates by
reference the documents set forth below that we have previously filed with the
SEC. These documents contain important information about our company and its
financial condition.
1. Annual Report on Form 10-K for the year ended December 31, 2002, filed
on March 31, 2003.
2. Definitive proxy statement filed on April 30, 2002.
3. Current Reports on Form 8-K and amendments thereto filed on January
21, 2003, February 7, 2003, February 12, 2003, February 26, 2003,
March 19, 2003, March 25, 2003, March 26, 2003, April 9, 2003, April
10, 2003, April 15, 2003, May 2, 2003 and May 5, 2003 (in each case
other than information furnished under Regulation FD).
4. Registration Statement on Form 8-A filed on January 22, 2003.
5. Registration Statements on Form S-4 filed on May 2, 2003 and May 5,
2003 (in each case only with respect to pro forma financial statement
information).
All documents filed by USA with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this prospectus and prior to
the termination of the offering are incorporated by reference into this
prospectus.
You may request free copies of these filings by writing or telephoning us
at the following address:
USA Interactive
152 West 57th Street
New York, New York 10019
(212) 314-7300
Attention: Corporate Secretary
Information contained on our website is not part of this prospectus. You
should rely only on the information contained in this prospectus. We have not
authorized anyone to provide you with information different from that contained
in this prospectus. The information contained in this prospectus is accurate
only as of the date of this prospectus and, with respect to material
incorporated herein by reference, the dates of such referenced material.
2
SUMMARY
THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS PROSPECTUS AND MAY
NOT CONTAIN ALL THE INFORMATION THAT MAY BE IMPORTANT TO YOU. TO UNDERSTAND THE
TERMS OF THE USA COMMON STOCK BEING OFFERED BY THIS PROSPECTUS, YOU SHOULD READ
THIS ENTIRE PROSPECTUS AND THE DOCUMENTS IDENTIFIED UNDER THE CAPTION "WHERE YOU
CAN FIND MORE INFORMATION." IN THIS PROSPECTUS, THE TERMS "USA", "WE" AND "OUR"
REFER TO USA INTERACTIVE AND OUR SUBSIDIARIES, EXCEPT WHERE IT IS CLEAR THAT
SUCH TERMS MEAN ONLY USA INTERACTIVE.
USA INTERACTIVE
USA (Nasdaq: USAI) engages worldwide in the business of interactivity via
the Internet, the television and the telephone. USA's multiple brands are
organized across three areas: Electronic Retailing, Information & Services and
Travel Services. Electronic Retailing is comprised of HSN, America's Store,
HSN.com, and Home Shopping Europe and Euvia in Germany. Information & Services
includes Ticketmaster, Match.com, uDate, Citysearch, Entertainment Publications,
Evite, and Precision Response Corporation. Travel Services consists of Expedia
(Nasdaq: EXPE), Hotels.com (Nasdaq: ROOM), Interval International, TV Travel
Group and USA's forthcoming U.S. cable travel network.
USA is incorporated under the laws of the State of Delaware. Our executive
offices are located at 152 West 57th Street, New York, New York 10019 and our
telephone number is (212) 314-7300.
RECENT DEVELOPMENTS
LENDINGTREE. On May 6, 2003, USA announced that it had entered into an
agreement to acquire all of the outstanding capital stock of LendingTree, Inc.
in a stock-for-stock transaction valued in a range of approximately $626 million
to $734 million based on the closing prices of USA common stock between April
28, 2003 and May 2, 2003. Under the agreement, LendingTree shareholders will
receive 0.6199 of a share of USA common stock for each share of LendingTree
common stock that they own, and LendingTree preferred stockholders will receive
the same merger consideration, on an as-converted basis. The transaction is
subject to LendingTree shareholder approval and other customary conditions.
HOTELS.COM. On April 10, 2003, USA announced that it entered into an
agreement to acquire the shares of Hotels.com common stock that it does not
currently own in a stock-for-stock transaction valued at approximately $1.1
billion based on the closing price of USA common stock on April 9, 2003. Under
the agreement, Hotels.com shareholders will receive 2.4 shares of USA common
stock for each share of Hotels.com stock that they own. The transaction, which
is subject to customary conditions, is expected to be completed in the summer of
2003.
3
THE OFFERING
USA SECURITIES BEING OFFERED USA common stock issuable upon the
exercise of the Options
NUMBER OF SHARES OF USA COMMON 4,400,000 (subject to adjustment as
STOCK BEING OFFERED a result of the anti-dilution
provisions of the Agreement)
USA COMMON STOCK AUTHORIZED As of the date of this prospectus,
AND OUTSTANDING we are authorized to issue up to
1,600,000,000 shares of USA common stock.
As of May 1, 2003, there were 451,086,491
shares of USA common stock outstanding.
USE OF PROCEEDS Any proceeds received by USA in
respect of the cash exercise price
of Options exercised for cash will
be used for general corporate
purposes. USA will not receive any
proceeds from the sale of the
shares of USA common stock issued
in respect of the Options.
TRANSFER AGENT The Bank of New York
NASDAQ NATIONAL MARKET SYMBOL USAI
RISK FACTORS
AN INVESTMENT IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
CONSIDER THE FOLLOWING FACTORS CAREFULLY BEFORE DECIDING TO PURCHASE OUR
SECURITIES. ADDITIONAL RISKS NOT PRESENTLY KNOWN TO US OR THAT WE CURRENTLY DEEM
IMMATERIAL MAY ALSO IMPAIR OUR BUSINESS OPERATIONS.
USA DEPENDS ON ITS KEY PERSONNEL.
USA is dependent upon the continued contributions of its senior corporate
management, particularly Mr. Diller, the chairman and chief executive officer of
USA, and certain key employees for its future success. Mr. Diller does not have
an employment agreement with USA, although he has been granted options to
purchase a substantial number of shares of USA common stock.
If Mr. Diller no longer serves in his positions at USA, USA's business, as
well as the market price of USA common stock, could be substantially adversely
affected. USA cannot assure you that it will be able to retain the services of
Mr. Diller or any other members of its senior management or key employees.
USA IS CONTROLLED BY MR. DILLER AND IN HIS ABSENCE WILL BE CONTROLLED BY LIBERTY
MEDIA CORPORATION.
Subject to the terms of an amended and restated stockholders agreement,
dated as of December 16, 2001, among Universal Studios, Inc. ("Universal"),
Liberty Media Corporation ("Liberty"), Mr. Diller and Vivendi Universal, S.A.
("Vivendi"), Mr. Diller effectively controls the outcome of all matters
submitted to a vote or for the consent of USA's stockholders (other than with
respect to the election by the holders of USA common stock of 25% of the members
of USA's board of directors (rounded up to the nearest whole number) and matters
as to which a separate class vote of the holders of USA common stock or USA
preferred stock is required under Delaware law).
In addition, under an amended and restated governance agreement, dated as
of December 16, 2001, among USA, Vivendi, Universal, Liberty and Mr. Diller,
each of Mr. Diller and Liberty generally has the right to consent to limited
matters in the event that USA's ratio of total debt to EBITDA, as defined in the
governance agreement, equals or exceeds 4:1 over a continuous 12-month period.
USA cannot assure you that Mr. Diller and Liberty will consent to any such
matter at a time when USA is highly leveraged, in which case USA would not be
able to engage in such transaction or take such actions.
Upon Mr. Diller's permanent departure from USA, Liberty generally would be
able to control USA through its ownership of shares of USA Class B common stock.
4
USA'S SUCCESS DEPENDS ON MAINTAINING THE INTEGRITY OF ITS SYSTEMS AND
INFRASTRUCTURE.
A fundamental requirement for online commerce and communications is the
secure transmission of confidential information, such as credit card numbers or
other personal information, over public networks. USA's current security
measures may not be adequate and, if any compromise of USA's security were to
occur, it could have a detrimental effect on USA's reputation and adversely
affect its ability to attract customers. As USA's operations continue to grow in
both size and scope, USA will need to improve and upgrade its systems and
infrastructure. This may require USA to commit substantial financial,
operational and technical resources before the volume of business increases,
with no assurance that the volume of business will increase.
USA relies on its own affiliates' and third-party computer systems and
service providers to facilitate and process a portion of its transactions. Any
interruptions, outages or delays in these services, or a deterioration in their
performance, could impair USA's ability to process transactions for its
customers and the quality of service USA can offer to them. It is unlikely that
USA could make up for the level of orders lost in these circumstances by
increased phone orders.
SYSTEM INTERRUPTION AND THE LACK OF INTEGRATION AND REDUNDANCY IN OUR
INFORMATION SYSTEMS MAY AFFECT OUR BUSINESS.
USA's subsidiaries rely on computer and other systems in order to provide
their services to customers. At times, USA subsidiaries may experience
occasional system interruptions that make some or all systems unavailable or
prevent the subsidiaries from efficiently fulfilling orders or providing
services to third parties. To prevent system interruptions, USA and its
subsidiaries continually add additional software and hardware and upgrade
systems and network infrastructure to accommodate both increased traffic on
websites and increased sales volume. Computer and communications systems of USA
and its subsidiaries could be damaged or interrupted by fire, flood, power loss,
telecommunications failure, break-ins, earthquakes, acts of war or terrorism,
acts of God, computer viruses, physical or electronic break-ins and similar
events or disruptions. Any of these events could cause system interruption,
delays and loss of critical data, and could prevent USA subsidiaries from
providing services to third parties. While USA and its subsidiaries do have
backup systems for certain aspects of operations, the systems are not fully
redundant and disaster recovery planning may not be sufficient for all
eventualities. In addition, USA and its subsidiaries may have inadequate
insurance coverage or insurance limits to compensate for losses from a major
interruption. If any of this were to occur, it could damage the reputation of
USA and its subsidiaries and be expensive to remedy.
DECLINES OR DISRUPTIONS IN THE INDUSTRIES IN WHICH USA OPERATES, SUCH AS THOSE
CAUSED BY TERRORISM, WAR OR GENERAL ECONOMIC DOWNTURNS, COULD HARM USA'S
BUSINESSES. IN ADDITION, A NEGATIVE FINANCIAL PERFORMANCE OF COMPANIES IN WHICH
USA IS THE MAJORITY STOCKHOLDER CAN HAVE A NEGATIVE AFFECT ON USA'S STOCK PRICE.
USA's businesses in general are sensitive to trends or events that are
outside of USA's control. For example, adverse trends or events, such as general
economic downturns, decreases in consumer spending, work stoppages and political
instability, may reduce the popularity and frequency of the events to which USA
sells tickets, reduce travel and may affect call center and other operations in
areas where these trends or events occur. The occurrence of any of these adverse
trends or events could significantly impact USA's businesses, results of
operations or financial condition. In addition, USA's stock price may be
adversely affected by negative reports of the results of operations or declines
in the stock price of companies in which USA is a major stockholder, regardless
of the affect these negative reports or stock price declines may have on our
business, financial condition, results of operations or cash flow.
Travel is highly sensitive to traveler safety concerns, and thus declines
after acts of terrorism impact the perceived safety of travelers, could
significantly impact USA's businesses, results of operations or financial
condition. In the aftermath of the terrorist attacks of September 11, 2001, for
example, the travel industry experienced a protracted decrease in demand for air
travel due to fears regarding additional acts of terrorism and increased costs
and reduced operations by airlines due, in part, to new security directives
adopted by the Federal Aviation Administration. USA cannot predict the future
scope and effects of these changes, which could significantly impact USA's
long-term results of operations or financial condition.
5
USA MAY EXPERIENCE OPERATIONAL AND FINANCIAL RISKS IN CONNECTION WITH ITS
ACQUISITIONS. IN ADDITION, SOME OF THE BUSINESSES USA ACQUIRES MAY INCUR
SIGNIFICANT LOSSES FROM OPERATIONS OR EXPERIENCE IMPAIRMENT OF CARRYING VALUE.
USA's future growth may be a function, in part, of acquisitions. To the
extent that USA grows through acquisitions, it will face the operational and
financial risks commonly encountered with that type of a strategy. USA would
also face operational risks, such as failing to assimilate the operations and
personnel of the acquired businesses, disrupting its ongoing business,
dissipating its limited management resources and impairing its relationships
with employees and customers of acquired businesses as a result of changes in
ownership and management. Some of USA's acquisitions may not be successful and
their performances may result in the impairment of their carrying value.
CHANGING LAWS AND REGULATIONS, AND LEGAL UNCERTAINTIES, REGARDING THE INTERNET
MAY IMPAIR USA'S GROWTH AND HARM ITS BUSINESSES.
A number of proposed laws and regulations regarding the Internet, including
with respect to consumer privacy, have been proposed or considered that could
impact USA's businesses. USA cannot predict whether any of these types of laws
or regulations will be enacted or amended and what effect, if any, such laws or
regulations would have on its businesses, financial condition or results of
operations. In addition, the application of various sales, use and other tax
provisions under state and local law to USA's historical and new products and
services sold via the Internet, television and telephone is subject to
interpretation by the applicable taxing authorities. USA believes it is
compliant with these tax provisions, but there can be no assurances that taxing
authorities will not take a contrary position or that such positions will not
have a material adverse effect on USA's businesses, financial condition and
results of operations.
USE OF PROCEEDS
To the extent that Options are exercised for cash, we will receive the cash
exercise price of the Options upon exercise thereof (as such exercise price may
be adjusted under the anti-dilution provisions of the Agreement). As of the date
of this prospectus, the cash exercise price of the Options per share of USA
common stock is $22.59 per share. Any such proceeds received will be used for
general corporate purposes. USA will not receive any proceeds from the sale of
the shares of USA common stock issued in respect of the Options.
PLAN OF DISTRIBUTION
GENERAL
This prospectus relates to the issuance by us of up to 4,400,000 shares of
USA common stock upon the exercise of the Options. The Options were granted
under the Agreement and USA's 1999 Stock Option Plan (the "Plan"), and are
subject to the terms and conditions of the Agreement and the Plan. As of the
date hereof, Options to purchase 3,300,000 shares of USA common stock were
exercisable, and Options to purchase an additional 1,100,000 shares of USA
common stock will become exercisable on February 18, 2004. The Options expire on
February 18, 2010. This prospectus also relates to an indeterminable number of
additional shares that may become issuable pursuant to the anti-dilution
provisions of the Agreement.
Pursuant to the Agreement, the current exercise price of the Options is
$22.59 per share of USA common stock, which was the fair market value of the USA
common stock underlying the options on the date of grant (taking into account
the two-for-one USA common stock split announced on February 25, 2000). Subject
to applicable law (including applicable federal and state securities laws), the
Options are freely transferable by the holders of the Options by means of a
written notice to USA identifying the transferee of such Option, or by will or
the laws of decent and distribution or pursuant to a qualified domestic
relations order.
The Options were granted to Dr. Kofler on February 18, 2000 in
consideration of his entering into an employment arrangement with a German
affiliate of HSN. In July of 2000 (I.E., subsequent to the granting of the
Options), Dr. Kofler was elected to the board of directors of USA, from which he
resigned in February of 2002. As of the date of this prospectus, however, Dr.
Kofler is neither an officer nor employee of any USA affiliate. Dr. Kofler has a
current economic interest of 1.23% in the Italian home shopping business in
which USA is a passive minority partner and an expectation of an effective 3%
interest in USA-controlled Euvia.
6
During 2001, Dr. Kofler transferred Options to purchase an aggregate of
1,200,000 shares of USA common stock, of which Options to acquire 300,000 shares
of USA common stock vested and became exercisable on each of February 18, 2001,
February 18, 2002 and February 18, 2003 and Options to acquire 300,000 shares of
USA common stock will vest and become exercisable on February 18, 2004. As of
the date of this prospectus, Dr. Kofler held Options to acquire 3,200,000 shares
of USA common stock and Dr. Bernard Heiss held Options to acquire 1,200,000
shares of USA common stock.
This prospectus covers the offer and sale by us of USA common stock upon
exercise of the Options. We have filed with the Commission a registration
statement, of which this prospectus forms a part, with respect to the issuance
of USA common stock upon exercise of the Options from time to time under Rule
415 under the Securities Act.
PROCEEDS, COMMISSIONS AND EXPENSES
The aggregate proceeds to USA from the issuance of the USA common stock
offered under this prospectus will be the cash exercise price of the Options
relating to such shares of USA common stock.
USA will pay any printing costs, SEC filing fees and other fees,
disbursements and out-of-pocket expenses and costs incurred by us in connection
with the preparation of the registration statement of which this prospectus is a
part and in complying with all applicable securities and blue sky laws. Each
holder of any Options will pay for any fees and expenses incurred by such holder
in connection with the exercise of any Options, and any taxes required to be
withheld by USA upon the exercise of such Option.
NASDAQ LISTING STATUS
USA common stock is currently listed on the Nasdaq National Market under
the symbol "USAI."
DESCRIPTION OF USA COMMON STOCK
Set forth below is a description of USA's common stock. The following
statements are brief summaries of, and are subject to the provisions of, USA's
certificate of incorporation and by-laws, the USA preferred stock certificate of
designations, the USA warrant agreements and the relevant provisions of the
Delaware General Corporation Law, or the DGCL.
As of the date of this information statement/prospectus, the authorized
capital stock of USA consists of 1,600,000,000 shares of USA common stock, par
value $.01 per share, 400,000,000 shares of USA Class B common stock, par value
$.01 per share, and 100,000,000 shares of preferred stock, par value $.01 per
share, of which 13,125,000 shares have been designated Series A Cumulative
Convertible Redeemable Preferred Stock. As of May 1, 2003, there were
451,086,491 shares of USA common stock outstanding and 64,629,996 shares of USA
Class B common stock outstanding.
With respect to matters that may be submitted to a vote or for the consent
of USA stockholders, including the election of directors, each holder of USA
Class B common stock is entitled to ten votes for each share of USA Class B
common stock held and will vote together with the holders of USA common stock
and USA preferred stock as a single class, except as otherwise required by the
DGCL. Each holder of USA preferred stock is entitled to two votes for each share
of USA preferred stock held and each holder of USA common stock is entitled to
one vote for each share of USA common stock held. Notwithstanding the foregoing,
the holders of USA common stock, acting as a single class, are entitled to elect
25% of the total number of directors on the USA board of directors, and, in the
event that 25% of the total number of directors results in a fraction of a
director, then the holders of USA common stock, acting as a single class, are
entitled to elect the next higher whole number of directors on the USA board of
directors.
Shares of USA Class B common stock are convertible into shares of USA
common stock at the option of the holder thereof at any time on a
share-for-share basis. Such conversion ratio will in all events be equitably
preserved in the event of any recapitalization of USA by means of a stock
dividend on, or a stock split or combination of, outstanding USA common stock or
USA Class B common stock, or in the event of any merger, consolidation or other
reorganization of USA with another corporation. Upon the conversion of USA Class
B common stock into shares of USA common stock, those shares of USA Class B
common stock will be retired and will not be subject to reissue. Shares of USA
common stock are not convertible into shares of USA Class B common stock.
7
In all other respects, the USA common stock and the USA Class B common
stock are identical. The holders of USA common stock and the holders of USA
Class B common stock are entitled to receive, share-for-share, such dividends as
may be declared by the USA board of directors out of funds legally available
therefor. In the event of a liquidation, dissolution, distribution of assets or
winding-up of USA, the holders of USA common stock and the holders of USA Class
B common stock are entitled to share ratably in all the assets of USA available
for distribution to its stockholders, after the rights of the holders of the USA
preferred stock, if any, have been satisfied.
In connection with the VUE transaction, USA, Vivendi, Universal, Liberty
and Barry Diller entered into an amended and restated governance agreement,
which, among other things, retained Liberty's preemptive right to maintain its
percentage equity ownership in USA. This preemptive right generally provides
that following issuances of USA common shares exceeding 1% of the total
outstanding USA common shares, Liberty may elect to purchase a number of USA
common shares so that its percentage equity interest in USA after such issuances
will be the same as before such issuances. In connection with the merger,
Liberty has the right to maintain its percentage equity interest in USA
following the merger.
The USA certificate of incorporation provides that there can be no stock
dividends or stock splits or combinations of stock declared or made on USA
common stock or USA Class B common stock unless the shares of USA common stock
and USA Class B common stock then outstanding are treated equally and
identically.
The shares of USA common stock to be issued upon the exercise of any
Options will be validly issued, fully paid and non-assessable.
USA DIVIDEND POLICY
USA has paid no cash dividends on its common stock to date and does not
anticipate paying cash dividends on its common stock in the immediate future.
ANTI-TAKEOVER PROVISIONS IN USA'S BYLAWS
USA's bylaws contain provisions that could delay or make more difficult the
acquisition of USA by means of a hostile tender offer, open market purchases, a
proxy contest or otherwise. We also refer you to "Risk Factors" for information
on other factors which could impact a change of control. In addition, USA's
bylaws provide that, subject to the rights of holders of preferred stock, only
USA's chairman of the board of directors or a majority of USA's board of
directors may call a special meeting of stockholders.
EFFECT OF DELAWARE ANTI-TAKEOVER STATUTE
USA is subject to Section 203 of the DGCL, which regulates corporate
acquisitions. Section 203 generally prevents corporations from engaging in a
business combination with any interested stockholder for three years following
the date that the stockholder became an interested stockholder, unless that
business combination has been approved in one of a number of specific ways. For
purposes of Section 203, a "business combination" includes, among other things,
a merger or consolidation involving USA and the interested stockholder and a
sale of more than 10% of its assets. In general, the anti-takeover law defines
an "interested stockholder" as any entity or person beneficially owning 15% or
more of a company's outstanding voting stock and any entity or person affiliated
with or controlling or controlled by that entity or person. A Delaware
corporation may "opt out" of Section 203 with an express provision in its
original certificate of incorporation or an express provision in its certificate
of incorporation or bylaws resulting from amendments approved by holders of at
least a majority of a corporation's outstanding voting shares. USA has not
"opted out" of the provisions of Section 203.
ACTION BY WRITTEN CONSENT
Under the DGCL, unless a company's certificate of incorporation expressly
prohibits action by the written consent of stockholders, any action required or
permitted to be taken by its stockholders at a duly called annual or special
meeting may be taken by a consent in writing executed by stockholders possessing
the requisite votes for the action to be taken. USA's certificate of
incorporation does not expressly prohibit action by the written consent of
stockholders. As a result, Mr. Diller, who as of the date of this information
statement/prospectus controlled (through companies owned by Liberty and Mr.
Diller, his own holdings and pursuant to the Stockholders Agreement) a majority
of the outstanding total voting power of USA, will be able to take any action to
be taken by stockholders (other than with respect to the election by the holders
of shares of USA common stock of 25% of the members of USA's board of directors
and certain matters as to which a separate class vote of the holders of shares
of USA
8
common stock, USA Class B common stock or USA preferred stock is required)
without the necessity of holding a stockholders meeting.
TRANSFER AGENT
The transfer agent for the shares of USA common stock is The Bank of New
York.
CERTAIN MATERIAL UNITED STATES
FEDERAL TAX CONSEQUENCES
The following is a general discussion of certain material United States
federal income and estate tax consequences of the ownership and disposition of
USA common stock. This discussion is based on current law, which is subject to
change, possibly with retroactive effect, or different interpretations. This
discussion is limited to holders who hold USA common stock as capital assets.
Moreover, this discussion is for general information only and does not address
all the tax consequences that may be relevant in light of your particular
circumstances, nor does it discuss special tax provisions which may apply if you
have relinquished United States citizenship or residence.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT A TAX ADVISOR WITH RESPECT
TO CURRENT AND POSSIBLE FUTURE TAX CONSEQUENCES OF PURCHASING, OWNING AND
DISPOSING OF OUR COMMON STOCK, AS WELL AS ANY TAX CONSEQUENCES THAT MAY ARISE
UNDER STATE, LOCAL, FOREIGN OR OTHER TAX LAWS.
As used herein, a "United States person" is
o an individual who is a citizen or resident of the United States;
o a corporation created or organized in the United States or under the
laws of the United States or of any state;
o an estate the income of which is includible in gross income for United
States federal income taxation regardless of its source;
o a trust if a court in the United States is able to exercise primary
supervision over the administration of the trust and one or more
United States persons have the authority to control all substantial
decisions of the trust; or
o any person otherwise subject to United States federal income tax on a
net income basis in respect of its worldwide taxable income.
A "U.S. Holder" is a beneficial owner of USA common stock who is a United
States person. A "Non-U.S. Holder" is a beneficial owner that is not a U.S.
Holder. If a partnership (including for this purpose any entity treated as a
partnership for United States federal tax purposes) is a beneficial owner of USA
common stock, the treatment of a partner in the partnership will generally
depend upon the status of the partner and upon the activities of the
partnership. The partnership and partners in such partnership should consult
their tax advisors about the United States federal income tax consequences of
owning and disposing of USA common stock.
TAXATION OF U.S. HOLDERS
This section describes the tax consequences to a U.S. Holder. If you are
not a U.S. Holder, this section does not apply to you.
DISTRIBUTIONS. The amount of any distribution we make in respect of our
common stock will be equal to the amount of cash and the fair market value, on
the date of distribution, of any property distributed. In general, distributions
on USA common stock will constitute dividend income, taxable at ordinary income
rates, to the extent of our current or accumulated earnings and profits. Any
excess will be treated as non-taxable return of capital to the extent of the
holder's basis in the common stock, and thereafter as capital gain.
SALES OR EXCHANGES. On the sale, exchange or other disposition of shares of
USA common stock (other than a redemption of the common stock, discussed below),
holders will generally recognize capital gain or loss equal to the difference
between the amount of cash and the fair market value of any property received
upon the sale, exchange or other disposition and the adjusted tax basis in the
stock sold, exchanged or disposed of. This gain or loss will be
9
long-term capital gain or loss if at the time of the sale, exchange or
disposition the holder has held the stock sold, exchanged or disposed of for
more than one year. The deductibility of capital losses is subject to
limitations.
DIVIDENDS TO CORPORATE SHAREHOLDERS. In general, a distribution on the USA
common stock that is taxable as a dividend and that is made to a corporate
shareholder will qualify for the 70% corporate dividends-received deduction
under the Internal Revenue Code. However, a dividend that arises upon a
redemption of common stock will generally constitute an "extraordinary dividend"
under Section 1059 of the Internal Revenue Code. In addition, actual or
constructive dividends on common stock that are declared, announced or agreed to
within two years of the holder's acquisition of the stock may also constitute
"extraordinary dividends." If the extraordinary dividend rules apply, the
corporate shareholder may lose some or all of the benefits of the
dividends-received deduction. Furthermore, there are many exceptions and
restrictions relating to the availability of the dividends-received deduction.
Consequently, corporate shareholders should consult their own tax advisors
regarding the extent, if any, that the dividends-received deduction is available
to them and the extent to which the extraordinary dividend rules may apply.
REDEMPTION OF USA COMMON STOCK. A redemption of USA common stock generally
would be a taxable event and would be treated as if the holder sold the common
stock if the redemption:
o results in a "complete termination" of the holder's interest in USA
stock;
o is "substantially disproportionate" (i.e., after the redemption, the
percentage of all our outstanding voting stock that is owned by the
holder is less than 80% of the percentage of all our outstanding
voting stock (and the percentage of all our outstanding common stock
that is owned by the holder is less than 80% of the percentage of all
our outstanding common stock) that was owned by the holder immediately
before the redemption); or
o is "not essentially equivalent to a dividend" (i.e., the redemption
must meaningfully reduce the holder's proportionate interest in USA
based on the holder's particular circumstance; the Internal Revenue
Service or the IRS has indicated that this test is satisfied by even a
small reduction in the percentage interest of a shareholder whose
relative stock interest in a publicly held corporation is minimal and
who exercises no control over corporate affairs).
In determining whether any of these tests has been met, holders must take
into account the shares of stock actually owned and the shares of stock
constructively owned by reason of certain constructive ownership rules set forth
in Section 318 of the Internal Revenue Code.
If stock is redeemed in a redemption that meets one of the tests described
above, the holder generally would recognize taxable gain or loss equal to the
difference between the amount of cash and the fair market value of property
received and the holder's tax basis in the stock redeemed. This gain or loss
would be long-term capital gain or capital loss if the stock were held for more
than one year.
If a redemption does not meet any of the tests described above, the entire
amount of the cash and the fair market value of property received generally
would be taxed as a dividend as explained above under "Distributions." If a
redemption is treated as a distribution that is taxable as a dividend, the
holder's basis in the redeemed stock would generally be transferred to the
holder's remaining shares of USA stock, if any.
INFORMATION REPORTING AND BACKUP WITHHOLDING. Information reporting will
generally apply to dividends received on USA common stock and to the proceeds
received on the sale or disposition of such stock by a U.S. Holder who is not an
exempt recipient. Generally, individuals are not exempt recipients, whereas
corporations are exempt recipients. Backup withholding will apply only if the
U.S. Holder is not an exempt recipient and:
o fails to furnish its Taxpayer Identification Number or the TIN which,
in the case of an individual, is his or her Social Security Number;
o furnishes an incorrect TIN;
o in the case of dividends, is notified by the IRS that it has failed to
properly report payments of interest or dividends; or
o fails to certify, under penalty of perjury, that it has furnished a
correct TIN, has not been notified by the IRS that it is subject to
backup withholding (or has since been notified by the IRS that it is
no longer subject to backup withholding) and is a U.S. person
(including a U.S. resident alien).
10
U.S. Holders should consult their tax advisors regarding their
qualification for exemption from backup withholding and the procedure for
demonstrating such an exemption if applicable.
The amount of any backup withholding from a payment to a U.S. Holder is not
an additional tax and is allowable as a credit against the U.S. Holder's United
States federal income tax liability, if any, or may be claimed as a refund,
provided that the required information is furnished to the IRS.
TAXATION OF NON-U.S. HOLDERS
This section describes the tax consequences to a Non-U.S. Holder. If you
are a U.S. Holder, see the above discussion under "--Taxation of U.S. Holders."
DIVIDENDS. If dividends are paid, Non-U.S. Holders will be subject to
withholding of United States federal income tax at a 30% rate or a lower rate as
may be specified by an applicable income tax treaty. To claim the benefit of a
lower rate under an income tax treaty, Non-U.S. Holders must properly file with
the payor an IRS Form W-8BEN, or successor form, claiming an exemption from or
reduction in withholding under the applicable tax treaty. In addition, where
dividends are paid or deemed paid to a Non-U.S. Holder that is a partnership or
other pass through entity, persons holding an interest in the entity may need to
provide certification claiming an exemption from or reduction in withholding
under the applicable treaty.
If actual or deemed dividends are considered effectively connected with the
conduct of a trade or business within the United States and, where a tax treaty
applies, are attributable to a United States permanent establishment, those
dividends will not be subject to withholding tax, but instead will be subject to
United States federal income tax on a net basis at applicable graduated
individual or corporate rates, provided an IRS Form W-8ECI, or successor form,
is filed with the payor. In the case of a foreign corporation, any effectively
connected dividends may, under certain circumstances, be subject to an
additional "branch profits tax" at a rate of 30% or a lower rate as may be
specified by an applicable income tax treaty.
Non-U.S. Holders must comply with the certification procedures described
above, or, in the case of payments made outside the United States with respect
to an offshore account, certain documentary evidence procedures, directly or
under certain circumstances through an intermediary, to obtain the benefits of a
reduced rate under an income tax treaty with respect to dividends paid or deemed
paid with respect to USA common stock. In addition, if a Non-U.S. Holder is
required to provide an IRS Form W-8ECI or successor form, as discussed above,
the Non-U.S. Holder must also provide its tax identification number.
Non-U.S. Holders that are eligible for a reduced rate of United States
withholding tax pursuant to an income tax treaty may obtain a refund of any
excess amounts withheld by filing an appropriate claim for refund with the IRS.
GAIN ON DISPOSITION OF USA COMMON STOCK. Non-U.S. Holders generally will
not be subject to United States federal income tax on any gain realized on the
sale or other disposition of USA common stock unless:
o the gain is considered effectively connected with the conduct of a
trade or business within the United States and, where a tax treaty
applies, is attributable to a United States permanent establishment
(and, in which case, if the holder is a foreign corporation, may be
subject to an additional "branch profits tax" equal to 30% or a lower
rate as may be specified by an applicable income tax treaty);
o the holder is an individual who holds the USA common stock as a
capital asset and is present in the United States for 183 or more days
in the taxable year of the sale or other disposition and other
conditions are met; or
o we are or have been a "United States real property holding
corporation," or a USRPHC, for United States federal income tax
purposes. We believe that we are not currently, and are not likely to
become, a USRPHC. If we were to become a USRPHC, then gain on the sale
or other disposition of USA common stock generally would not be
subject to United States federal income tax provided:
o USA common stock were "regularly traded" on an established securities
market; and
o the holder did not actually or constructively own more than 5% of the
USA common stock during the shorter of the five-year period preceding
the disposition or the holder's holding period.
11
FEDERAL ESTATE TAX. In the case of an individual, USA common stock held at
the time of death will be included in the individual's gross estate for United
States federal estate tax purposes, and may be subject to United States federal
estate tax, unless an applicable estate tax treaty provides otherwise.
INFORMATION REPORTING AND BACKUP WITHHOLDING. We must report annually to
the IRS and to each holder the amount of dividends paid or deemed paid and the
tax withheld with respect to those dividends, regardless of whether withholding
was required. Copies of the information returns reporting those dividends and
withholding may also be made available to the tax authorities in the country in
which a Non-U.S. Holder resides under the provisions of an applicable income tax
treaty or other applicable agreements.
Backup withholding is generally imposed on certain payments to persons that
fail to furnish the necessary identifying information to the payor. Generally
Non-U.S. Holders will be subject to backup withholding with respect to dividends
paid on USA common stock unless they certify their status as Non-U.S. Holders.
The payment of proceeds of a sale of USA common stock effected by or
through a United States office of a broker will be subject to both backup
withholding and information reporting unless the holder provides the payor with
the holder's name and address and certifies its Non-U.S. Holder status or
otherwise establishes an exemption. In general, backup withholding and
information reporting will not apply to the payment of the proceeds of a sale of
USA common stock by or through a foreign office of a broker. If, however, such
broker is, for United States federal income tax purposes, a United States
person, a controlled foreign corporation, a foreign person that derives 50% or
more of its gross income for certain periods from the conduct of a trade or
business in the United States, or, a foreign partnership that at any time during
its tax year either is engaged in the conduct of a trade or business in the
United States or has as partners one or more United States persons that, in the
aggregate, hold more than 50% of the income or capital interest in the
partnership, such payments will be subject to information reporting, but not
backup withholding, unless such broker has documentary evidence in its records
that the holder is a Non-U.S. Holder and certain other conditions are met or the
holder otherwise establishes an exemption.
Any amounts withheld under the backup withholding rules generally will be
allowed as a refund or a credit against the holder's United States federal
income tax liability provided the required information is furnished in a timely
manner to the IRS.
LEGAL MATTERS
The validity of the USA common stock offered by this prospectus is being
passed upon for us by David Ellen, Deputy General Counsel of USA.
EXPERTS
The consolidated financial statements and the related financial statement
schedule of USA Interactive at December 31, 2002 and 2001, and for each of the
three years in the period ended December 31, 2002, incorporated into this
prospectus by reference to USA's Annual Report on Form 10-K for the year ended
December 31, 2002, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report, which is incorporated herein by reference, and has
been incorporated in reliance upon such report given on the authority of such
firm as experts in accounting and auditing.
12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
broker-dealer discounts and commissions, payable by the Selling Security Holders
in connection with the sale of common stock being registered. All amounts are
estimates except the SEC registration fee and the NASD filing fee.
ITEM AMOUNT
---- ------
SEC Registration Fee.............................................. $8,042
Printing Fees and Expenses........................................ 1,000
Legal Fees and Expenses........................................... 20,000
Accounting Fees and Expenses...................................... 5,000
Miscellaneous..................................................... 2,000
-----
Total.......................................................... $36,542
=======
ITEM 15. 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 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.
II-2
ITEM 16. EXHIBITS
The following exhibits are filed as part of this registration statement:
Exhibit
No. Description
--------- ----------------------------------------------------------------------
3.1 Restated Certificate of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 2000).
3.2 Amendment to the Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference to Exhibit A to the
Registrant's Definitive Information Statement, filed on November 19,
2001).
3.3 Certificate of Ownership and Merger Merging Taiwan Travel, Inc. into
USA Networks, Inc. (incorporated by reference to Exhibit 3.3 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 2002).
3.4 Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 99.1 of the Registrant's Current Report on Form
8-K, filed on September 20, 2002).
5.1 Opinion of counsel regarding the legality of the securities being
issued.
10.1 Amended and Restated Governance Agreement, dated as of December 16,
2001, among Universal Studios, Inc., Liberty Media Corporation, Barry
Diller and Vivendi Universal, S.A. (incorporated by reference to
Exhibit 10.1 to the Registrant's Form 8-K filed on December 18, 2001).
10.2 Amended and Restated Stockholders Agreement, dated as of December 16,
2001, among Universal Studios, Inc., Liberty Media Corporation, Barry
Diller and Vivendi Universal, S.A. (incorporated by reference to
Exhibit 99.2 to the Registrant's Form 8-K filed on December 18, 2001).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of counsel (included in Exhibit 5.1).
24 Powers of Attorney.
ITEM 17. UNDERTAKINGS
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 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.
(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.
(4) 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
Section 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 the 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.
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 Securities and Exchange 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
II-2
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.
II-3
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on May 8, 2003.
USA INTERACTIVE
By: /S/ DARA KHOSROWSHAHI
---------------------------------------
Dara Khosrowshahi
EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities
indicated as of May 8, 2003.
SIGNATURE TITLE
BARRY DILLER* Chairman of the Board, Chief
------------------------------------- Executive Officer and Director
Barry Diller
VICTOR A. KAUFMAN* Vice Chairman and Director
-------------------------------------
Victor A. Kaufman
WILLIAM J. SEVERANCE* Vice President and Controller
------------------------------------- (Chief Accounting Officer)
William J. Severance
/s/ Dara Khosrowshahi Executive Vice President and Chief
------------------------------------- Financial Officer
Dara Khosrowshahi
RICHARD N. BARTON* Director
-------------------------------------
Richard N. Barton
ROBERT R. BENNETT* Director
-------------------------------------
Robert R. Bennett
EDGAR BRONFMAN, JR.* Director
-------------------------------------
Edgar Bronfman, Jr.
ANNE M. BUSQUET* Director
-------------------------------------
Anne M. Busquet
JEAN-RENE-FOURTOU* Director
-------------------------------------
Jean-Rene-Fourtou
DONALD R. KEOUGH* Director
-------------------------------------
Donald R. Keough
MARIE-JOSEE KRAVIS* Director
-------------------------------------
Marie-Josee Kravis
JOHN C. MALONE* Director
-------------------------------------
John C. Malone
II-4
SIGNATURE TITLE
GEN. H. NORMAN SCHWARZKOPF* Director
-------------------------------------
Gen. H. Norman Schwarzkopf
ALAN SPOON* Director
-------------------------------------
Alan Spoon
DIANE VON FURSTENBERG* Director
-------------------------------------
Diane Von Furstenberg
* By: /s/ Dara Khosrowshahi
----------------------------
Dara Khosrowshahi
ATTORNEY-IN-FACT
II-5
INDEX TO EXHIBITS
Exhibit
No. Description
-------- ----------------------------------------------------------------------
3.1 Restated Certificate of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 2000).
3.2 Amendment to the Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference to Exhibit A to the
Registrant's Definitive Information Statement, filed on November 19,
2001).
3.3 Certificate of Ownership and Merger Merging Taiwan Travel, Inc. into
USA Networks, Inc. (incorporated by reference to Exhibit 3.3 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 2002).
3.4 Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 99.1 of the Registrant's Current Report on Form
8-K, filed on September 20, 2002).
5.1 Opinion of counsel regarding the legality of the USA common stock
being issued.
10.1 Amended and Restated Governance Agreement, dated as of December 16,
2001, among Universal Studios, Inc., Liberty Media Corporation, Barry
Diller and Vivendi Universal, S.A. (incorporated by reference to
Exhibit 10.1 to the Registrant's Form 8-K filed on December 18, 2001).
10.2 Amended and Restated Stockholders Agreement, dated as of December 16,
2001, among Universal Studios, Inc., Liberty Media Corporation, Barry
Diller and Vivendi Universal, S.A. (incorporated by reference to
Exhibit 99.2 to the Registrant's Form 8-K filed on December 18, 2001).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of counsel (included in Exhibit 5.1).
24 Power of Attorney.