EXHIBIT 10.24
STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement (the "Agreement") is entered into as of
February 20, 2002 by and between Expedia, Inc., a Washington corporation (the
"Company"), and USA Networks, Inc., a Delaware corporation ("USA").
RECITALS
WHEREAS, a Special Committee consisting of all of the independent directors
of the Board of Directors of the Company (the "Committee") has reviewed the
transactions contemplated hereby, and has determined that the transactions
contemplated hereby are advisable and fair and in the best interests of the
Company and its stockholders; and
WHEREAS, USA desires to purchase from the Company, and the Company desires
to sell to USA, the Shares (as defined below), all on the terms and subject to
the conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto covenant and agree
as follows:
ARTICLE I
AGREEMENT OF PURCHASE AND SALE
1.1. Agreement to Purchase and Sell. Upon the terms and subject to the
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conditions set forth in this Agreement, the Company shall issue and sell to USA,
and USA agrees to purchase from the Company, 936,815 shares of common stock (the
"Common Stock"), $.01 par value, of the Company (the "Shares").
1.2. Purchase Price. USA shall deliver to the Company payment, by wire
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transfer to the bank account designated in the wire transfer instructions
attached hereto as Exhibit A, of immediately available funds in an amount equal
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to the aggregate purchase price (the "Purchase Price") of Forty Seven Million
Dollars ($47,000,008.55), representing a price of $50.17 per share, which price
was arrived at by the parties on an arms-length basis.
ARTICLE II
DELIVERIES
2.1. Deliveries by the Company. Concurrently herewith, the Company shall
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issue and deliver to USA (a) certificates evidencing the Shares, (b) a
counterpart of a cross-receipt acknowledging receipt of the Purchase Price and
(c) a certificate of good standing from the Secretary of State of the State of
Washington.
2.2. Deliveries by USA. Concurrently herewith, USA shall deliver to the
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Company (a) the Purchase Price in same day funds as provided in Section 1.2 and
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(b) a counterpart of a cross-receipt acknowledging receipt of the Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to USA, as of the date of this
Agreement, as follows:
3.1. Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Washington and has all requisite corporate power and authority
to own its properties and assets and to carry on its business as now conducted
and as presently proposed to be conducted. The Company is duly licensed or
qualified and in good standing to do business as a foreign corporation in each
jurisdiction where failure to be so qualified would have a material adverse
effect on its financial condition, business, prospects or operations.
3.2. Capitalization. As of February 8, 2002, the authorized capital stock
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of the Company consisted of the following:
(a) Common Stock. A total of 750,000,000 authorized shares of common
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stock, of which (i) 600,000,000 shares are Common Stock, of which 19,467,929
shares are issued and outstanding, and (ii) 150,000,000 shares are Class B
common stock, $.01 par value, of which 34,518,375 shares are issued and
outstanding.
(b) Preferred Stock. A total of 20,000,000 authorized shares of
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Preferred Stock, $.01 par value, none of which are issued and outstanding.
(c) Options, Warrants, Reserved Shares. Except as disclosed on
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Schedule 3.2 attached hereto, there are no options, warrants, conversion
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privileges or other rights, or agreements with respect to the issuance thereof,
presently outstanding to purchase any of the capital stock of the Company.
Except as disclosed on Schedule 3.2, no shares (including the Shares) of the
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Company's outstanding capital stock, or stock issuable upon exercise or exchange
of any outstanding options or other stock issuable by the Company, are subject
to any rights of first refusal or other rights to purchase such stock (whether
in favor of the Company or any other person), pursuant to any agreement or
commitment of the Company.
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3.3. Due Authorization. All corporate action on the part of the Company,
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its officers, directors and stockholders necessary for the authorization,
execution and delivery of, and the performance of all obligations of the Company
under, this Agreement, and the authorization, issuance and delivery of all of
the Shares being sold under this Agreement has been taken. This Agreement is a
valid and binding obligation of the Company enforceable in accordance with its
terms, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, reorganization and similar laws affecting creditors'
rights generally and to general equitable principles. The Shares are not subject
to any preemptive rights or rights of first refusal.
3.4. Valid Issuance of Stock. The Shares, when issued, sold and delivered
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in accordance with the terms of this Agreement, will be duly and validly issued,
fully paid and non assessable.
3.5. Exempt Offering. Based in part upon USA's representations in Article
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IV, the offer and sale of the Shares pursuant to this Agreement are exempt from
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the registration requirements of Section 5 of the Act by virtue of Regulation D
thereunder, from the qualification requirements of The Securities Act of
Washington by virtue of Section 21.20.320(8) thereof, and from the registration
or qualification requirements of any other applicable state securities laws.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF USA
USA hereby represents and warrants to the Company, as of the date of this
Agreement, as follows
4.1. Organization; Due Authorization. (a) USA is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) All corporate action on the part of USA, its officers, directors and
stockholders necessary for the authorization, execution and delivery of, and the
performance of all obligations of USA under, this Agreement has been taken. This
Agreement is a valid and binding obligation of USA enforceable in accordance
with its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, moratorium, reorganization and similar laws affecting
creditors' rights generally and to general equitable principles.
4.2. Investigation; Economic Risk. USA acknowledges that it has had an
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opportunity to discuss the business, affairs and current prospects of the
Company with its officers. USA further acknowledges having had access to
information about the Company that it has requested. USA acknowledges that it is
able to fend for itself in the transactions contemplated by this Agreement and
has the ability to bear the economic risks of its investment pursuant to this
Agreement.
4.3. Purchase for Own Account. The Shares will be acquired for USA's own
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account, not as a nominee or agent, and not with a view to or in connection with
the sale or distribution of any part thereof in violation of the Act.
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4.4. Exempt from Registration; Restricted Securities. USA understands that
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the Shares will not be registered under the Act, on the ground that the sale
provided for in this Agreement is exempt from registration under the Act, and
that the reliance of the Company on such exemption is predicated in part on
USA's representations set forth in this Agreement. USA understands that the
Shares being purchased hereunder are restricted securities within the meaning of
Rule 144 under the Act; that the Shares are not registered and must be held
indefinitely unless they are subsequently registered or an exemption from such
registration is available.
4.5. Restrictive Legends. It is understood that each certificate
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representing the Shares and any other securities issued in respect of the Shares
upon any stock split, stock dividend, recapitalization, merger or similar event
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF
ANY STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER
OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
4.6. Removal of Restrictive Legend. The legend set forth above shall be
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removed by the Company from any certificate evidencing Shares upon delivery to
the Company of an opinion by counsel, reasonably satisfactory to the Company,
that a registration statement under the Act is at that time in effect with
respect to the legended security or that such security can be freely transferred
in a public sale without such a registration statement being in effect and that
such transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Shares.
4.7. Antitrust Exemption. USA has previously made a filing under the
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Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, for clearance
to acquire its controlling interest in the Company. The Federal Trade Commission
and Department of Justice granted early termination to the applicable HSR
waiting period on August 16, 2001. Pursuant to section 802.30 of the Premerger
Notification Rules, because USA owns Company voting securities that represent
more than 50% of the outstanding vote of all outstanding Company securities,
USA's acquisition of additional Company voting securities is exempt from the
notification requirements of the HSR Act.
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ARTICLE V
COVENANTS OF THE PARTIES
5.1. Further Assurances. The parties hereto shall execute and deliver such
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other documents, certificates, agreements and other writings and shall take such
other actions as may be reasonably necessary or desirable in order to consummate
or implement expeditiously the transactions contemplated by this Agreement. The
Company shall comply with the listing and reporting requirements of the Nasdaq
National Market and, as soon as practicable after the date hereof, take all
appropriate action, including, without limitation, the filing of an application
to list the Shares, necessary in connection with the rules and regulations
regarding listed companies on the Nasdaq National Market.
5.2. Confidentiality; Public Announcements. The parties hereto shall use
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their best efforts to keep this Agreement and the execution and terms hereof
confidential, and shall consult with each other before issuing any press release
or making any public statement with respect to this Agreement or the
transactions contemplated hereby. The foregoing obligations of confidentiality
do not pertain to the disclosure of information which is available publicly, is
required to be disclosed by any court or any party discloses, upon advice of
counsel, in order to comply with applicable law.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF USA
The obligation of USA to purchase the Shares hereunder is subject to the
fulfillment, to the satisfaction of USA, on or prior to the date hereof, of the
following conditions:
6.1. Representations and Warranties Correct. The representations and
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warranties made by the Company in Article III hereof shall be true and correct
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in all material respects as of the date hereof.
6.2. Performance of Obligations. The Company shall have performed and
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complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it and shall
have obtained all approvals, consents and qualifications necessary to complete
the purchase and sale described herein.
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ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of the Company under this Agreement are subject to the
fulfillment, to the satisfaction of the Company, on or prior to the date hereof,
of the following conditions:
7.1. Representations and Warranties Correct. The representations and
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warranties made by USA in Article IV hereof shall be true and correct in all
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material respects as of the date hereof.
7.2. Performance of Obligations. USA shall have performed and complied
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with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it and shall have obtained all
approvals, consents and qualifications necessary to complete the purchase and
sale described herein.
ARTICLE VIII
MISCELLANEOUS
8.1. Governing Law. This Agreement shall be governed in all respects by
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the laws of the state of Delaware without regard to provisions regarding choice
of laws.
8.2. Entire Agreement. This Agreement and the exhibits hereto which are
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hereby expressly incorporated herein by this reference constitute the entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
8.3. Notices. All notices, requests, waivers and other communications made
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pursuant to this Agreement shall be in writing and shall be conclusively deemed
to have been duly given (a) when hand delivered to the other party; (b) when
received when sent by facsimile at the address and number set forth below; (c)
three business days after deposit in the U.S. mail with first class or certified
mail receipt requested postage prepaid and addressed to the other party as set
forth below; or (d) the next business day after deposit with a national
overnight delivery service, postage prepaid, addressed to the parties as set
forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
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To USA: To the Company:
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USA Networks, Inc. Expedia, Inc.
000 Xxxx 00xx Xxxxxx 00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: General Counsel Attn: General Counsel
Telecopier No.: (000) 000-0000 Telecopier No.: (000) 000-0000
with a copy to: with a copy to:
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Wachtell, Lipton, Xxxxx & Xxxx Shearman & Sterling
00 Xxxx 00xx Xxxxxx 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxx X. Xxxxx
Telecopier No.: (000) 000-0000 Telecopier No.: (000) 000-0000
Each person making a communication hereunder by facsimile shall promptly
confirm by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 8.3 by giving the other party written
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notice of the new address in the manner set forth above.
8.4. Amendment and Waiver. Any term of this Agreement may be amended only
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with the written consent of the Company and USA. No delay or omission to
exercise any right, power or remedy accruing to the Company or to USA, upon any
breach or default of any party hereto under this Agreement, shall impair any
such right, power or remedy of the Company, or USA nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of any
similar breach of default thereafter occurring; nor shall any waiver of any
other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of the Company or USA
of any breach of default under this Agreement or any waiver on the part of the
Company or USA of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, or by law or otherwise
afforded to the Company or USA shall be cumulative and not alternative.
8.5. Captions. The captions herein are for convenience of reference only
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and are not to be considered in construing this Agreement. All references to an
Article or Section include all subparts thereof
8.6. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
8.7. Severability. Should any provision of this Agreement be determined to
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be illegal or unenforceable, such determination shall not affect the remaining
provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Expedia, Inc.
a Washington corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President
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and General Counsel
USA Networks, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxx
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Title: Executive Vice President
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and General Counsel
SIGNATURE PAGE FOR STOCK PURCHASE AGREEMENT
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Schedule 3.2
As of February 8, 2002, the Company had:
1. 13,982,639 shares of Common Stock reserved for issuance pursuant to the
exercise of stock options outstanding under the Company's stock option plans;
and
2. 6,419,411 shares of Common Stock reserved for issuance pursuant to the
exercise of warrants (each warrant to acquire one share of Common Stock). Of
such warrants, 68,853 warrants were issued prior to USA's acquisition of a
controlling interest in the Company and 6,350,558 warrants ("New Warrants") were
issued in connection with such acquisition. Of such New warrants, 3,705,979 New
Warrants were issued to shareholders of the Company and 2,644,579 New Warrants
were issued to optionholders of the Company.
