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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 23, 2000
REGISTRATION NO. 333-90601
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 6
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HOTEL RESERVATIONS NETWORK, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 7389 75-2817683
(State or other jurisdiction of (Primary Standard Industrial (IRS Employer
incorporation or organization) Classification Code Number) Identification Number)
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8140 WALNUT HILL LANE
SUITE 203
DALLAS, TEXAS 75231
(214) 361-7311
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DAVID LITMAN
8140 WALNUT HILL LANE
SUITE 203
DALLAS, TEXAS 75231
(214) 361-7311
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
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PAUL D. GINSBERG, ESQ. THOMAS J. KUHN, ESQ. RICHARD D. TRUESDELL, JR., ESQ.
ROBERT B. SCHUMER, ESQ. USA NETWORKS, INC. DAVIS POLK & WARDWELL
PAUL, WEISS, RIFKIND, CARNEGIE HALL TOWER 450 LEXINGTON AVENUE
WHARTON & GARRISON 152 WEST 57TH STREET, 42ND FLOOR NEW YORK, NEW YORK 10017
1285 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019 (212) 450-4000
NEW YORK, NEW YORK 10019 (212) 314-7200
(212) 373-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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,
check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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,
check the following box. / /
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 COMMISSION, ACTING PURSUANT TO SUCH
SECTION 8(A), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the fees and expenses expected to be incurred
by the Registrant in connection with the issuance and distribution described in
this registration statement, other than underwriting discounts and commissions.
All amounts other than the Commission registration fee are estimated.
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Securities and Exchange Commission registration fee......... $ 22,363
NASD filing fee............................................. 8,573
Blue sky fees and expenses.................................. 2,500
Nasdaq listing fee.......................................... 95,000
Accounting fees and expenses................................ 500,000
Legal fees and expenses..................................... 500,000
Printing and engraving expenses............................. 450,000
Transfer Agent and Registrar fees and expenses.............. 5,500
Miscellaneous............................................... 16,064
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Total................................................... $1,600,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware provides
that a Delaware corporation may include in its charter documents, and in
agreements between the corporation and its directors, provisions expanding the
scope of indemnification beyond that specifically provided by the current law.
The Registrant's restated certificate of incorporation limits the personal
liability of directors of the Registrant and provides for the indemnification of
directors of the Registrant to the fullest extent permitted under Delaware law.
The Registrant's restated bylaws also provide for the indemnification of
officers, directors and third parties acting on behalf of the company if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the company, and with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his conduct
was unlawful.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since March 25, 1999, the date of inception of the Registrant, the
Registrant has issued securities that were not registered under the Securities
Act in the following transactions:
(1) In connection with the formation of the Registrant, 100 shares of common
stock were issued to USA Networks, Inc. ("USAi"), our parent company, on
April 19, 1999. The shares were issued in exchange for USAi's initial
capital contribution to the Registrant.
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(2) Immediately prior to the closing of this offering, the Registrant will
authorize a recapitalization of its common stock, and USAi will exchange all
of its shares of common stock, which constitutes all of the Registrant's
outstanding common stock, for shares of class B common stock.
(3) Following the recapitalization but prior to the closing of this offering,
the Registrant will issue to a party designated by TMF, Inc. and HRN
Marketing Corp. an estimated 11,699,900 shares of Class A Common Stock as
part of the consideration for the sale by TMF, Inc. and HRN Marketing Corp.
of substantially all their assets to the Registrant.
(4) Immediately upon completion of this offering, we have agreed to issue
warrants to purchase at the initial public offering price an estimated
4,197,955 shares of class A common stock (assuming a public offering price
of $12.00 per share) to a number of our third-party website affiliates.
Warrants to purchase an estimated 1.75 million shares will be immediately
exercisable, but neither these warrants nor the shares underlying them will
be transferable until after the first anniversary of the initial closing of
this offering. A performance warrant to purchase 2,447,955 shares will be
subject to specified vesting criteria. The performance warrant is not
transferable (except that it may be transferred to an affiliate of the
holder after the first anniversary of the initial closing of this offering)
and will not be exercisable until the third anniversary of the initial
closing of this offering unless the vesting criteria are waived.
The original issuance of shares to USAi, the issuance of shares to a party
designated by TMF, Inc. and HRN Marketing Corp. and the issuance of the warrants
are transactions exempt from the registration requirements under Section 4(2) of
the Securities Act. The recapitalization is a transaction exempt from the
registration requirements under Section (3)(a)(9) of the Securities Act. In
addition, no public offering was involved in any of these transactions nor were
underwriting discounts or commissions paid.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
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EXHIBIT NUMBER DESCRIPTION
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1.1*** Form of Underwriting Agreement
3.1*** Amended Certificate of Incorporation (as currently in
effect)
3.2*** Form of Restated Certificate of Incorporation (to be
effective immediately prior to the consummation of this
offering)
3.3*** Form of Restated Bylaws
4.1*** Specimen class A common stock certificate
5.1*** Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
10.1*** Assumption Agreement between Hotel Reservations Network,
Inc. and USA Networks, Inc.
10.2*** Tax Sharing Agreement between Hotel Reservations Network,
Inc. and USA Networks, Inc.
10.3*** 2000 Stock Option Plan
10.4*** Directors' Stock Option Plan
10.5*** Amended and Restated Asset Purchase Agreement by and among
Hotel Reservations Network, Inc., USA Networks, Inc., TMF,
Inc., HRN Marketing Corp., David Litman and Robert Diener
10.6*** Form of Warrant
10.7*** Form of Performance Warrant
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EXHIBIT NUMBER DESCRIPTION
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10.8*** Employment Agreement with Jack Rubin
10.9*** Form of Employment Agreement with Sandra D'Arcy
12.1*** Statement regarding computation of EBITDA
23.1* Consent of Ernst & Young LLP
23.2* Consent of Grant Thornton LLP
23.3*** Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(contained in Exhibit 5.1)
24.1*** Powers of Attorney
24.2*** Powers of Attorney for Michael Sileck and Jack Rubin
27.1*** Financial Data Schedule (for SEC use only)
27.2*** Financial Data Schedule (for SEC use only)
99.1*** Nominee Directors' Consents
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* Filed herewith
*** Previously filed
(b) Financial Statement Schedules
None
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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 provide to the underwriters at the closing specified in the underwriting
agreement certificates in such denominations and registered in such names as
required by the underwriter to permit prompt delivery to each purchaser.
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
has duly caused this amendment to the 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 February 23, 2000.
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HOTEL RESERVATIONS NETWORK, INC.
By: /s/ THOMAS J. KUHN
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Name: Thomas J. Kuhn
Title: Vice President
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Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons on behalf
of the registrant and in the capacities indicated below.
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SIGNATURES TITLE DATE
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--------------------------------- Chief Executive Officer and Director February 23, 2000
David Litman (Principal Executive Officer)
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--------------------------------- President, Treasurer and Director February 23, 2000
Robert Diener (Principal Accounting Officer)
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--------------------------------- Chief Financial and Strategic Officer February 23, 2000
Jack Rubin (Principal Financial Officer)
*
--------------------------------- Director February 23, 2000
Barry Baker
*
--------------------------------- Director February 23, 2000
Victor A. Kaufman
*
--------------------------------- Director February 23, 2000
Dara Khosrowshahi
*
--------------------------------- Director February 23, 2000
Michael Sileck
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*By: /s/ THOMAS J. KUHN
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Name: Thomas J. Kuhn
Title: Attorney-in-Fact
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION
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1.1*** Form of Underwriting Agreement
3.1*** Amended Certificate of Incorporation (as currently in
effect)
3.2*** Form of Restated Certificate of Incorporation (to be
effective immediately prior to the consummation of this
offering)
3.3*** Form of Restated Bylaws
4.1*** Specimen class A common stock certificate
5.1*** Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
10.1*** Assumption Agreement between Hotel Reservations Network,
Inc. and USA Networks, Inc.
10.2*** Tax Sharing Agreement between Hotel Reservations Network,
Inc. and USA Networks, Inc.
10.3*** 2000 Stock Option Plan
10.4*** Directors' Stock Option Plan
10.5*** Amended and Restated Asset Purchase Agreement by and among
Hotel Reservations Network, Inc., USA Networks, Inc., TMF,
Inc., HRN Marketing Corp., David Litman and Robert Diener
10.6*** Form of Warrant
10.7*** Form of Performance Warrant
10.8*** Employment Agreement with Jack Rubin
10.9*** Form of Employment Agreement with Sandra D'Arcy
12.1*** Statement regarding computation of EBITDA
23.1* Consent of Ernst & Young LLP
23.2* Consent of Grant Thornton LLP
23.3*** Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(contained in Exhibit 5.1)
24.1*** Powers of Attorney
24.2*** Powers of Attorney for Michael Sileck and Jack Rubin
27.1*** Financial Data Schedule (for SEC use only)
27.2*** Financial Data Schedule (for SEC use only)
99.1*** Nominee Directors' Consents
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* Filed herewith
*** Previously filed
(b) Financial Statement Schedules
None
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Selected
Financial Data" and "Experts" and to the use of our reports (1) dated
November 22, 1999 with respect to TMF, Inc. and HRN Marketing Corp. for the
period January 1, 1999 through May 10, 1999, and (2) dated January 28, 2000 with
respect to Hotel Reservations Network, Inc. as of December 31, 1999 and for the
period May 11, 1999 through December 31, 1999, in Amendment No. 6 of the
Registration Statement on Form S-1 (No. 333-90601) and related Prospectus of
Hotel Reservations Network, Inc. for the registration of its class A common
stock.
ERNST & YOUNG LLP
Dallas, Texas
February 16, 2000
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 26, 1999, accompanying the combined
financial statements of TMF, Inc. and HRN Marketing Corp. contained in the
Registration Statement and Prospectus. We consent to the use of the
aforementioned report in the Registration Statement and Prospectus, and to the
use of our name as it appears under the caption "Experts."
GRANT THORNTON LLP
Dallas, Texas
February 16, 2000
