As Filed with the Securities and Exchange Commission on February 28, 2000
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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)
Delaware 75-2817683
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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8140 Walnut Hill Lane
Suite 203
Dallas, Texas 75231
(Address of registrant's
principal executive offices)
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2000 STOCK PLAN
DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
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David Litman
8140 Walnut Hill Lane
Suite 203
Dallas, Texas 75231
(214) 361-7311
(Name, address, and telephone number of agent for service)
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Copies to:
Paul D. Ginsberg, Esq.
Robert B. Schumer, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, par 5,500,000 shares (1) $25.125 (2) $138,187,500.00 (2) $36,482.00
value $.01 per share
==========================================================================================================================
</TABLE>
(1) Represents 5,400,000 shares of class A common stock reserved for issuance
under the 2000 Stock Plan and 100,000 shares of class A common stock
reserved for issuance under the Directors' Stock Option Plan.
(2) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(c) and 457(h)(1) of the Securities Act and based
on the average of the high and low prices of Class A Common Stock reported
on the Nasdaq National Market on February 25, 2000.
<PAGE>
EXPLANATORY NOTE
The section 10(a) prospectus being delivered by Hotel Reservations
Network, Inc. (the "Company") to participants in the Company's 2000 Stock Plan
and Directors' Stock Option Plan (collectively, the "Plans") as required by Rule
428 under the Securities Act of 1933 (the "Securities Act"), has been prepared
in accordance with the requirements of Form S-8 and relates to shares of class A
common stock of the Company, par value $.01 per share (the "Common Stock"),
reserved for issuance pursuant to the Plans. Information regarding the Plans
required in the Section 10(a) prospectus is included in documents being
maintained and delivered by the Company as required by Rule 428 under the
Securities Act. The Company shall provide to participants in the Plans a written
statement advising them of the availability without charge, upon written or oral
request, of documents incorporated by reference herein, as is required by Item 2
of Part I of Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information required in Part I of Form S-8
will be sent or given to participating employees as required by rule 428(b)(1)
under the Securities Act. These documents and the documents incorporated by
reference in this registration statement pursuant to Item 3 of Part II, taken
together, constitute a prospectus that meets the requirements of section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
1. The Company's Prospectus, dated February 25, 2000, filed with the
commission pursuant to Rule 424(b) under the Securities Act, relating
to the Company's Registration Statement on Form S-1 (Registration No.
333-90601) (the "Form S-1 Registration Statement"), which was declared
effective on February 24, 2000;
2. The Company's Registration Statement on Form 8-A, dated February 16,
2000, filed pursuant to section 12(g) of the Securities Exchange Act
of 1934 (the "Exchange Act"), which contains a description of the
Common Stock.
All the documents filed by the Company pursuant to sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
after the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes
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<PAGE>
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. 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 Company's restated certificate of incorporation will limit the personal
liability of directors of the Company and provides for the indemnification of
directors of the Company to the fullest extent permitted under Delaware law. The
Company'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 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 Specimen Class A Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Form S-1 Registration Statement)
4.2 Amended and Restated Certificate of Incorporation (as currently
in effect) (Incorporated by reference to Exhibit 3.1 to the Form
S-1 Registration Statement)
4.3 Form of Restated Certificate of Incorporation (to be effective
immediately prior to the consummation of the offering described
in the Form S-1 Registration Statement) (Incorporated by
reference to Exhibit 3.2 to the Form S-1 Registration Statement)
4.4 Form of Restated Bylaws (Incorporated by reference to Exhibit 3.3
to the Form S-1 Registration Statement)
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to
the Company, regarding the legality of the Common Stock being
registered
3
<PAGE>
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 (included on the signature page)
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement; and
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new
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registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the Company's Certificate of Incorporation or By-laws (as
each is in effect from time to time), by contract, or otherwise, the Company has
been advised that, in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 New York, State of New York, on February 28, 2000.
HOTEL RESERVATIONS NETWORK, INC.
By: /s/ Thomas J. Kuhn
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Thomas J. Kuhn
Vice President
POWER OF ATTORNEY
We, the undersigned officers and directors of Hotel Reservations Network,
Inc. hereby severally constitute Thomas J. Kuhn and Deirdre Stanley, or any one
of them, with full power to act without the other, our true and lawful
attorneys, with full power to sign for us and in our names in the capacities
indicated below, any and all amendments, including post-effective amendments, to
this Registration Statement, and generally do all such things in our name and
behalf in such capacities to enable Hotel Reservations Network, Inc. to comply
with the applicable provisions of the Securities Act, and all requirements of
the Commission, and we hereby ratify and confirm our signatures as they may be
signed by our said attorneys to any and all such amendments.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signatures Title or Capacities Date
---------- ------------------- ----
/s/ David Litman Chief Executive Officer and
- --------------------- Director (Principal Executive February 28, 2000
David Litman Officer)
/s/ Robert Diener President, Treasurer and Director February 28, 2000
- --------------------- (Principal Accounting Officer)
Robert Diener
/s/ Jack Rubin Chief Financial and Strategic February 28, 2000
- --------------------- Officer (Principal Financial
Jack Rubin Officer)
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/s/ Barry Baker Director February 28, 2000
- ---------------------
Barry Baker
/s/ Victor A. Kaufman Director February 28, 2000
- ---------------------
Victor A. Kaufman
/s/ Dara Khosrowshahi Director February 28, 2000
- ---------------------
Dara Khosrowshahi
/s/ Michael Sileck Director February 28, 2000
- ---------------------
Michael Sileck
7
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Specimen Class A Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Form S-1 Registration Statement)
4.2 Amended and Restated Certificate of Incorporation (as currently
in effect) (Incorporated by reference to Exhibit 3.1 to the Form
S-1 Registration Statement)
4.3 Form of Restated Certificate of Incorporation (to be effective
immediately prior to the consummation of the offering described
in the Form S-1 Registration Statement) (Incorporated by
reference to Exhibit 3.2 to the Form S-1 Registration Statement)
4.4 Form of Restated Bylaws (Incorporated by reference to Exhibit 3.3
to the Form S-1 Registration Statement)
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to
the Company, regarding the legality of the Common Stock being
registered
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 (included on the signature page)
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EXHIBIT 5.1
February 28, 2000
Hotel Reservations Network, Inc.
8140 Walnut Hill Lane
Dallas, Texas 75231
Hotel Reservations Network, Inc.
Registration Statement on Form S-8 (the "Registration Statement")
Ladies and Gentlemen:
In connection with the above-captioned Registration Statement filed
with the Securities and Exchange Commission under the Securities Act of 1933
(the "Act") and the rules and regulations under the Act (the "Rules"), we have
been requested by Hotel Reservations Network, Inc., a Delaware corporation (the
"Company"), to furnish our opinion as to the legality of up to 5,500,000 shares
of the Company's class A common stock, par value $0.01 per share (the "Class A
Shares"), registered for sale under the Registration Statement. Of these shares,
5,400,000 are reserved for issuance under the Company's 2000 Stock Plan, and
100,000 are reserved under the Company's Directors' Stock Option Plan.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"): (i) the Registration Statement, (ii)
the Registration Statement on Form S-1 (Registration No. 333-90601) and the
Section 424(b)
<PAGE>
2
Prospectus filed in connection with it, (iii) the forms of the Company's
Restated Certificate of Incorporation and Restated Bylaws, (iv) drafts of the
Company's 2000 Stock Plan and the Company's Directors' Stock Option Plan and (v)
records of certain of the Company's corporate proceedings. In addition, we have
made those other examinations of law and fact as we deemed relevant and
necessary in order to form a basis for our opinions.
In our examination of the Documents, we have assumed, without
independent investigation, the genuineness of all signatures, the enforceability
of the Documents against each party to them, the legal capacity of all
individuals who have executed any of the Documents, the authenticity of all
documents submitted to us as originals, the conformity to the original documents
of all documents submitted to us as certified, photostatic, reproduced or
conformed copies of valid existing agreements or other documents and the
authenticity of all the latter documents. As to certain matters of fact, we have
relied on representations, statements or certificates of officers of the
Company.
Based on the above, and subject to the stated assumptions, we are of
the opinion that upon the filing and effectiveness of the Company's Restated
Certificate of Incorporation, the Class A Shares (i) have been duly authorized
for issuance and (ii) when issued and delivered and paid for in accordance with
the Documents, will be validly issued, fully paid and non-assessable.
Our opinion expressed above is limited to the federal laws of the
United States and the General Corporation Law of the State of Delaware. Please
be advised that no member of this firm is admitted to practice in the State of
Delaware. Our opinions are rendered only with respect to the laws, and the
rules, regulations and orders under them, which are currently in effect.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the caption "Legal
Matters" in the prospectus to be distributed to participating employees as
required by Rule 428(b)(1) under the Act. In giving this consent, we do not
agree or admit that we come within the category of persons whose consent is
required by the Act or the Rules.
Very truly yours,
/s/ PAUL, WEISS, RIFKIND, WHARTON & GARRISON
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement (Form S-8) for 5,500,000 shares of Class A Common Stock, $.01 par
value related to the 2000 Stock Plan and Directors' Stock Option Plan 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 except for Note 11 as to which the date is February 24, 2000 with
respect to Hotel Reservations Network, Inc. as of December 31, 1999 and for the
period from May 11, 1999 to December 31, 1999 included in the Registration
Statement (Form S-1 No. 333-90601) and related Prospectus filed with the
Securities and Exchange Commission for the registration of its Class A Common
Stock.
/s/ ERNST & YOUNG LLP
Dallas, Texas
February 24, 2000
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 on Form S-1 (No. 333-90601) filed by Hotel Reservations
Network, Inc. which are incorporated by reference in this Registration Statement
on Form S-8. We consent to the incorporation by reference of the aforementioned
report in the Registration Statement on Form S-8.
GRANT THORNTON LLP
Dallas, Texas
February 23, 2000
