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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________________________________
REGISTRATION STATEMENT
ON FORM S-8
Under
THE SECURITIES ACT OF 1933
EXPEDIA, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Washington 91-1996083
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
4200 - 150th Avenue Northeast
Redmond, Washington 98052
(425) 705-5161
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Address of registrant's Principal Executive Offices)
1999 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Mark S. Britton
Vice President, General Counsel and Secretary
4200 - 150th Avenue Northeast
Redmond, Washington 98052
(425) 705-5161
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(Name and address of agent for service)
Copies of all communications to:
Richard B. Dodd
Preston Gates & Ellis LLP
701 Fifth Avenue, Suite 5000
Seattle, WA 98104
(206) 623-7580
<TABLE>
<CAPTION>
Title of each class Proposed maximum Proposed maximum
of securities to be Amount to be offering price per aggregate offering Amount of
registered registered(1) share (2) price (2) registration fee (2)
- --------------------- --------------- -------------------- -------------------- ----------------------
<S> <C> <C> <C> <C>
common stock, par
value $.01 300,000 $43.13 $12,939,000 $3,597
</TABLE>
(1) Includes an indeterminate number of additional shares that may be
issued to adjust the number of shares issued pursuant to the non-employee
director stock option plan described herein as the result of any future stock
split, stock dividend or similar adjustment of Expedia's outstanding common
stock.
(2) Estimated pursuant to Rule 457(c) solely for purposes of calculating
amount of registration fee, based upon the average of the high and low prices
reported on November 17, 1999, as reported on the Nasdaq Stock Market.
The Exhibit Index appears after the Signature Page of this registration
statement.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
registration statement:
(a) Expedia's latest prospectus filed pursuant to Rule 424(b), filed with
the Securities and Exchange Commission on November 10, 1999, which contains
audited consolidated financial statements for the most recent fiscal year for
which such statements have been filed.
(b) The description of Expedia's common stock, which is contained in a
registration statement filed on Form S-1, dated September 26, 1999, registration
number 333-87623, as last amended on November 8, 1999.
In addition, all documents subsequently filed pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities that may be offered under the 1999 Employee
Stock Purchase Plan will be passed upon for Expedia, Inc. ("Expedia") by Preston
Gates & Ellis LLP, 701 Fifth Avenue, Suite 5000, Seattle, Washington 98104.
Attorneys who are partners or employed by Preston Gates & Ellis LLP who have
provided advice with respect to this matter in the aggregate own less than
10,000 shares of Expedia's common stock.
Item 6. Indemnification of Directors and Officers.
Article XII of Expedia's Restated Articles of Incorporation authorizes
Expedia to indemnify any present or former director, officer, employee, or agent
of Expedia, or a person serving in a similar post in another organization at the
request of Expedia, against expenses, judgments, fines, and amounts paid in
settlement incurred by him in connection with any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, to the fullest extent not prohibited by the Washington
Business Corporation Act or other applicable law. Chapter 23B.08.510 and .570
of the Washington Business Corporation Act authorizes a corporation to indemnify
its directors, officers, employees, or agents in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities
(including provisions permitting advances for expenses incurred) arising under
the 1933 Act.
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In addition, Expedia maintains directors' and officers' liability insurance
under which Expedia's directors and officers are insured against loss (as
defined in the policy) as a result of claims brought against them for their
wrongful acts in such capacities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The Exhibits to this registration statement are listed in the Index to
Exhibits.
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 to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 of 1933 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 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 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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Redmond, State of Washington, on this 24th day of
November, 1999.
EXPEDIA, INC.
/s/ Richard N. Barton
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Richard N. Barton
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard N. Barton and Gregory S. Stanger, his or
her attorney-in-fact, for him or her in any and all capacities, to sign any
amendments to this registration statement, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said attorneys-in-
fact, or their substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Richard N. Barton President, Chief Executive Officer, November 24, 1999
- ----------------------------- Director (principal executive
Richard N. Barton officer)
/s/ Gregory S. Stanger Vice President, Chief Financial November 24, 1999
- ----------------------------- Officer (principal financial and
Gregory S. Stanger accounting officer)
/s/ Brad Chase
- ----------------------------- Director November 24, 1999
Brad Chase
/s/ Gerald Grinstein Director November 24, 1999
- -----------------------------
Gerald Grinstein
/s/ Gregory B. Maffei Director November 24, 1999
- -----------------------------
Gregory B. Maffei
/s/ Laurie McDonald Jonsson Director November 24, 1999
- -----------------------------
Laurie McDonald Jonsson
/s/ Richard N. Nanula Director November 24, 1999
- -----------------------------
Richard N. Nanula
</TABLE>
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INDEX TO EXHIBITS
Exhibit Number Description
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5.1 Opinion of Counsel regarding legality
23.1 Consent of Independent Public Accountant
23.2 Consent of Counsel (included in Exhibit 5.1)
24 Power of Attorney (contained within signature page)
99.1 1999 Employee Stock Purchase Plan
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Exhibits 5.1 and 23.2
LETTERHEAD OF PRESTON GATES & ELLIS LLP
November 18, 1999
Expedia, Inc.
4200 - 150th Avenue Northeast
Redmond, Washington 98052
Re: 1999 Employee Stock Purchase Plan
Ladies and Gentlemen:
We have acted as counsel to Expedia, Inc. (the "Company") in connection
with the registration with the Securities and Exchange Commission on Form S-8 of
shares of Expedia's common stock, par value $.01 (the "Shares"), which may be
issued upon exercise of options granted in connection with the above-referenced
plan (the "Plan"). In connection with that registration, we have reviewed the
proceedings of the Board of Directors of the Company relating to the
registration and proposed issuance of the common stock, the Articles of
Incorporation of the Company and all amendments thereto, the Bylaws of the
Company and all amendments thereto, and such other documents and matters as we
have deemed necessary to the rendering of the following opinion.
Based upon that review, it is our opinion that the Shares when issued in
conformance with the terms and conditions of the Plan, will be legally issued,
fully paid, and nonassessable under the Washington Business Corporation Act.
We do not find it necessary for the purposes of this opinion to cover, and
accordingly we express no opinion as to, the application of the securities or
blue sky laws of the various states as to the issuance and sale of the Shares.
We consent to the use of this opinion in the registration statement filed
with the Securities and Exchange Commission in connection with the registration
of the Shares and to the reference to our firm under the heading "Interests of
Named Experts and Counsel" in the registration statement.
Very truly yours,
PRESTON GATES & ELLIS LLP
By /s/ Richard B. Dodd
Richard B. Dodd
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Expedia, Inc. on Form S-8 of our report dated October 26, 1999, included and
incorporated by reference on Form S-1 of Expedia, Inc. for the year ended June
30, 1999.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Seattle, Washington
November 19, 1999
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Exhibit 99.1
EXPEDIA, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
As approved by the Board of Directors
on October 19, 1999 and Expedia's Sole
Shareholder on October 20, 1999
Expedia, Inc. (the "Company") does hereby establish its 1999 Employee Stock
Purchase Plan as follows:
1. Purpose of the Plan. The purpose of this Plan is to provide eligible
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employees who wish to become shareholders in the Company a convenient method of
doing so. It is believed that employee participation in the ownership of the
business will be to the mutual benefit of both the employees and the Company.
2. Definitions.
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2.1 "Base pay" means regular straight time earnings, plus review
cycle bonuses and overtime payments, payments for incentive compensation, and
other special payments except to the extent that any such item is specifically
excluded by the Board of Directors of the Company (the "Board").
2.2 "Account" shall mean the funds accumulated with respect to an
individual employee as a result of deductions from his paycheck for the purpose
of purchasing stock under this Plan. The funds allocated to an employee's
account shall remain the property of the respective employee at all times but
may be commingled with the general funds of the Company.
3. Employees Eligible to Participate. Any employee of the Company or any
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of its subsidiaries who is in the employ of the Company or subsidiary on an
offering commencement date is eligible to participate in that offering, except
(a) employees whose customary employment is less than 20 hours per week, and (b)
employees whose customary employment is for not more than five months in any
calendar year.
4. Offerings. There will be twelve separate consecutive six-month
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offerings pursuant to the Plan. The first offering shall commence on January 1,
2000. Thereafter, offerings shall commence on each subsequent July 1 and
January 1, and the final offering under this Plan shall commence on July 1, 2005
and terminate on December 31, 2005. In order to become eligible to purchase
shares, an employee must sign an Enrollment Agreement, and any other necessary
papers on or before the commencement date (January 1 or July 1) of the
particular offering in which he wishes to participate. Participation in one
offering under the Plan shall neither limit, nor require, participation in any
other offering.
5. Price. The purchase price per share shall be the lesser of (1) 85% of
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the fair market value of the stock on the offering date; or (2) 85% of the fair
market value of the stock on the last business day
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of the offering. Fair market value shall mean the closing bid price as
reported on the National Association of Securities Dealers Automated Quotation
System or, if the stock is traded on a stock exchange, the closing price for
the stock on the principal such exchange.
6. Offering Date. The "offering date" as used in this Plan shall be the
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commencement date of the offering, if such date is a regular business day, or
the first regular business day following such commencement date. A different
date may be set by resolution of the Board.
7. Number of Shares to be Offered. The maximum number of shares that
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will be offered under the Plan is 300,000 shares. The shares to be sold to
participants under the Plan will be common stock of the Company. If the total
number of shares for which options are to be granted on any date in accordance
with Section 10 exceeds the number of shares then available under the Plan
(after deduction of all shares for which options have been exercised or are then
outstanding), the Company shall make a pro rata allocation of the shares
remaining available in as nearly a uniform manner as shall be practicable and as
it shall determine to be equitable. In such event, the payroll deductions to be
made pursuant to the authorizations therefor shall be reduced accordingly and
the Company shall give written notice of such reduction to each employee
affected thereby.
8. Participation.
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8.1 An eligible employee may become a participant by completing an
Enrollment Agreement provided by the Company and filing it with Shareholder
Services prior to the Commencement of the offering to which it relates.
8.2 Payroll deductions for a participant shall commence on the
offering date, and shall end on the termination date of such offering unless
earlier terminated by the employee as provided in Paragraph 14.
9. Payroll Deductions.
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9.1 At the time a participant files his authorization for a payroll
deduction, he shall elect to have deductions made from his pay on each payday
during the time he is a participant in an offering at the rate of 2%, 4%, 6%,
8%, or 10% of his base pay.
9.2 All payroll deductions made for a participant shall be credited
to his account under the Plan. A participant may not make any separate cash
payment into such account nor may payment for shares be made other than by
payroll deduction.
9.3 A participant may discontinue his participation in the Plan as
provided in Section 14, but no other change can be made during an offering and,
specifically, a participant may not alter the rate of his payroll deductions for
that offering.
10. Granting of Option. On the offering date, this Plan shall be deemed
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to have granted to the participant an option for as many full shares as he will
be able to purchase with the payroll deductions credited to his account during
his participation in that offering.
<PAGE>
11. Exercise of Option. Each employee who continues to be a participant
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in an offering on the last business day of that offering shall be deemed to have
exercised his option on such date and shall be deemed to have purchased from the
Company such number of full shares of common stock reserved for the purpose of
the Plan as his accumulated payroll deductions on such date will pay for at the
option price.
12. Employee's Rights as a Shareholder. No participating employee shall
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have any right as a shareholder with respect to any shares until the shares have
been purchased in accordance with Section 11 above and the stock has been issued
by the Company.
13. Evidence of Stock Ownership.
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13.1 Promptly following the end of each offering, the number of shares
of common stock purchased by each participant shall be deposited into an account
established in the participant's name at a stock brokerage or other financial
services firm designated by the Company (the "ESPP Broker").
13.2 The participant may direct, by written notice to the Company at
the time of his enrollment in the Plan, that his ESPP Broker account be
established in the names of the participant and one other person designated by
the participant, as joint tenants with right of survivorship, tenants in common,
or community property, to the extent and in the manner permitted by applicable
law.
13.3 A participant shall be free to undertake a disposition (as that
term is defined in Section 424(c) of the Code) of the shares in his account at
any time, whether by sale, exchange, gift, or other transfer of legal title, but
in the absence of such a disposition of the shares, the shares must remain in
the participant's account at the ESPP Broker until the holding period set forth
in Section 423(a) of the Code has been satisfied. With respect to shares for
which the Section 423(a) holding period has been satisfied, the participant may
move those shares to another brokerage account of participant's choosing or
request that a stock certificate be issued and delivered to him.
13.4 A participant who is not subject to payment of U.S. income taxes
may move his shares to another brokerage account of his choosing or request that
a stock certificate be issued and delivered to him at any time, without regard
to the satisfaction of the Section 423(a) holding period.
14. Withdrawal.
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14.1 An employee may withdraw from an offering, in whole but not in
part, at any time prior to the last business day of such offering by delivering
a Withdrawal Notice to the Company, in which event the Company will refund the
entire balance of his deductions as soon as practicable thereafter.
14.2 To re-enter the Plan, an employee who has previously withdrawn
must file a new Enrollment Agreement in accordance with Section 8.1. The
employee's re-entry into the Plan will not become effective before the beginning
of the next offering following his withdrawal, and if the withdrawing employee
is an officer of the Company within the meaning of Section 16 of the Securities
Exchange Act of 1934 he may not re-enter the Plan before the beginning of the
second offering following his withdrawal.
<PAGE>
15. Carryover of Account. At the termination of each offering the Company
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shall automatically re-enroll the employee in the next offering, and the balance
in the employee's account shall be used for option exercises in the new
offering, unless the employee has advised the Company otherwise. Upon
termination of the Plan, the balance of each employee's account shall be
refunded to him.
16. Interest. No interest will be paid or allowed on any money in the
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accounts of participating employees.
17. Rights Not Transferable. No employee shall be permitted to sell,
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assign, transfer, pledge, or otherwise dispose of or encumber either the payroll
deductions credited to his account or any rights with regard to the exercise of
an option or to receive shares under the Plan other than by will or the laws of
descent and distribution, and such right and interest shall not be liable for,
or subject to, the debts, contracts, or liabilities of the employee. If any
such action is taken by the employee, or any claim is asserted by any other
party in respect of such right and interest whether by garnishment, levy,
attachment or otherwise, such action or claim will be treated as an election to
withdraw funds in accordance with Section 14.
18. Termination of Employment. Upon termination of employment for any
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reason whatsoever, including but not limited to death or retirement, the balance
in the account of a participating employee shall be paid to the employee or his
estate.
19. Amendment or Discontinuance of the Plan. The Board shall have the
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right to amend, modify, or terminate the Plan at any time without notice,
provided that no employee's existing rights under any offering already made
under Section 4 hereof may be adversely affected thereby, and provided further
that no such amendment of the Plan shall, except as provided in Section 20,
increase above 60,000 shares the total number of shares to be offered unless
shareholder approval is obtained therefor.
20. Changes in Capitalization. In the event of reorganization,
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recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, offerings of rights, or any other change in the structure of the
common shares of the Company, the Board may make such adjustment, if any, as it
may deem appropriate in the number, kind, and the price of shares available for
purchase under the Plan, and in the number of shares which an employee is
entitled to purchase.
21. Share Ownership. Notwithstanding anything herein to the contrary, no
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employee shall be permitted to subscribe for any shares under the Plan if such
employee, immediately after such subscription, owns shares (including all shares
which may be purchased under outstanding subscriptions under the Plan)
possessing 5% or more of the total combined voting power or value of all classes
of shares of the Company or of its parent or subsidiary corporations. For the
foregoing purposes the rules of Section 425(d) of the Internal Revenue Code of
1986 shall apply in determining share ownership. In addition, no employee shall
be allowed to subscribe for any shares under the Plan which permits his rights
to purchase shares under all "employee stock purchase plans" of the Company and
its subsidiary corporations to accrue at a rate which exceeds $25,000 of the
fair market value of such shares (determined at the time such right to subscribe
is granted) for each calendar year in which such right to subscribe is
outstanding at any time.
<PAGE>
22. Administration. The Plan shall be administered by the Board. The
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Board may delegate any or all of its authority hereunder to such committee of
the Board or officer of the Company as it may designate. The administrator
shall be vested with full authority to make, administer, and interpret such
rules and regulations as it deems necessary to administer the Plan, and any
determination, decision, or action of the administrator in connection with the
construction, interpretation, administration, or application of the Plan shall
be final, conclusive, and binding upon all participants and any and all persons
claiming under or through any participant.
23. Notices. All notices or other communications by a participant to the
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Company under or in connection with the Plan shall be deemed to have been duly
given when received by Shareholder Services of the Company or when received in
the form specified by the Company at the location, or by the person, designated
by the Company for the receipt thereof.
24. Termination of the Plan. This Plan shall terminate at the earliest of
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the following:
24.1 December 31, 2005.
24.2 The date of the filing of a Statement of Intent to Dissolve by
the Company or the effective date of a merger or consolidation wherein the
Company is not to be the surviving corporation, which merger or consolidation is
not between or among corporations related to the Company. Prior to the
occurrence of either of such events, on such date as the Company may determine,
the Company may permit a participating employee to exercise the option to
purchase shares for as many full shares as the balance of his account will allow
at the price set forth in accordance with Section 5. If the employee elects to
purchase shares, the remaining balance of his account will be refunded to him
after such purchase.
24.3 The date the Board acts to terminate the Plan in accordance with
Section 19 above.
24.3 The date when all shares reserved under the Plan have been
purchased.
25. Limitations on Sale of Stock Purchased Under the Plan. The Plan is
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intended to provide common stock for investment and not for resale. The Company
does not, however, intend to restrict or influence any employee in the conduct
of his own affairs. An employee, therefore, may sell stock purchased under the
Plan at any time he chooses, subject to compliance with any applicable Federal
or state securities laws. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET
FLUCTUATIONS IN THE PRICE OF THE STOCK.
26. Governmental Regulation. The Company's obligation to sell and deliver
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shares of the Company's common stock under this Plan is subject to the approval
of any governmental authority required in connection with the authorization,
issuance, or sale of such shares.
