General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 22 86K
2: EX-1 Underwriting Agreement 3 11K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 14 53K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 8 26K
5: EX-4 Instrument Defining the Rights of Security Holders 11 49K
6: EX-6 Opinion re: Discount on Capital Shares 20 82K
7: EX-7 Opinion re: Liquidation Preference 7 26K
EX-2 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
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EXHIBIT 2
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as of
this 25th day of June, 2000 between Expedia, Inc., a Washington corporation (the
"COMPANY"), TCV IV, L.P., a Delaware limited partnership, and TCV IV Strategic
Partners, L.P., a Delaware limited partnership (collectively, the "PURCHASERS").
RECITALS
WHEREAS, the Company desires to sell to the Purchasers, and the
Purchasers desire to purchase from the Company, shares of the Company's Common
Stock, $0.01 par value per share (the "COMMON STOCK"), on the terms and
conditions set forth in this Agreement; and
WHEREAS, concurrently with this Agreement the Company is issuing to each
Purchaser a warrant to acquire their common stock in the form attached hereto on
Exhibit C, respectively (the "WARRANT");
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
AGREEMENT TO PURCHASE AND SELL COMMON STOCK AND THE WARRANT
1.1 AGREEMENT TO PURCHASE AND SELL COMMON STOCK. Upon the terms and
subject to the conditions of this Agreement, the Company hereby agrees to sell
to the Purchasers at the Closing (as defined below), and the Purchasers agree to
purchase from the Company at the Closing, an aggregate of 3,011,293 shares
consisting of the number of shares of Common Stock, (the "SHARES") shown
opposite each such Purchaser's name on [the Schedule of Purchasers hereto] at a
price of $16.604167 per share (the "PER SHARE PURCHASE PRICE") for an aggregate
purchase price of 50,000,011.86.
1.2 AGREEMENT TO GRANT THE WARRANT. Upon the terms and conditions of
this Agreement, the Company agrees to grant to each Purchaser for additional
consideration of $0.01 per Share and each Purchaser agrees to accept a Warrant
for the purchase of the number of shares of Common Stock, as shown opposite each
Purchaser's name on the Schedule of Purchasers hereto, or an aggregate of
602,259 shares exercisable at the Per Share Purchase Price for the aggregate
additional consideration of $6,022.59. (the "WARRANT SHARES").
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SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The Closing of the purchase and sale of the Shares
hereunder (the "CLOSING") shall be held at the offices of the Company at 5:00
p.m., as soon as practicable but in no event (i) more than three (3) business
days after satisfaction of all the conditions other than those that are to be
satisfied as of the Closing or (ii) sooner than July 17, 2000, or at such other
time and place as the Company and the Purchasers mutually agree (the date of the
Closing being hereinafter referred to as the "CLOSING DATE").
2.2 DELIVERY. At the Closing, the Company will deliver to each Purchaser
a certificate or certificates representing the Shares and a duly executed
Warrant as purchased by each such Purchaser against payment of the aggregate
purchase price as provided in Section 1.1 by wire transfer of immediately
available funds to an account designated by the Company. Each certificate or
certificates representing the Shares shall be subject to the following legend
restricting transfer under the Securities Act of 1933, as amended (the
"SECURITIES ACT"):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAW. NO TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE SHALL BE VALID OR EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (B) THE
HOLDER SHALL DELIVER TO THE COMPANY AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH PROPOSED
TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.
The Company agrees to remove the legend set forth in the
preceding paragraph upon receipt of an opinion of counsel in form and substance
reasonably satisfactory to the Company that the Shares or the shares of Common
Stock issuable upon conversion of the Shares are eligible for transfer without
registration under the Securities Act or if sold under Rule 144 such evidence of
compliance as is customarily required.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in a document referring specifically to the
representations and warranties in this Agreement which identifies by section
number the section and subsection to which such disclosure relates and is
delivered by Company to each Purchaser prior to the execution of this Agreement
(which is attached as Exhibit A hereto), the Company hereby represents and
warrants to each Purchaser as follows:
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3.1 ORGANIZATION. The Company is a corporation duly organized and
validly existing under the laws of the State of Washington. The Company has the
requisite corporate power to own and operate its properties and assets, and to
carry on its business as presently conducted and as proposed to be conducted.
The Company is qualified to do business as a foreign corporation in each
jurisdiction in which the ownership of its property or the nature of its
business requires such qualification, except where the failure to be so
qualified would not have a materially adverse effect on the Company and its
subsidiaries, taken as a whole.
3.2 AUTHORIZATION. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement, the Warrants and the Registration Rights Agreement (attached as
Exhibit B hereto) by the Company and the authorization, sale, issuance and
delivery of the Shares, the Warrants and the Warrant Shares hereunder has been
taken. This Agreement, the Warrant and the Registration Rights Agreement
constitute legal, valid and binding obligations of the Company enforceable in
accordance with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies,
and to limitations of public policy as they may apply to Section 6 of the
Registration Rights Agreement. Upon their issuance and delivery pursuant to this
Agreement and the Warrant, the Shares and the Warrant Shares will be validly
issued, fully paid and nonassessable and free of any preemptive rights or other
encumbrances. The issuance and sale of the Shares, the Warrants and the Warrant
Shares will not give rise to any preemptive rights or rights of first refusal on
behalf of any person in existence on the date hereof.
3.3 NO CONFLICT. The execution and delivery of this Agreement, the
Warrant and the Registration Rights Agreement do not, and the consummation of
the transactions contemplated hereby and thereby will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of time,
or both), or give rise to a right of termination, cancellation or acceleration
of any obligation or to a loss of a material benefit under, any provision of the
Articles of Incorporation or Bylaws of the Company or any mortgage, indenture,
lease or other agreement or instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Company, its properties or assets, the effect of which would have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or materially impair or restrict the Company's power to perform its obligations
as contemplated under said agreements.
3.4 SEC DOCUMENTS. The Company has filed all required reports,
schedules, forms, statements and other documents required to be filed by the
Company with the Securities and Exchange Commission (the "SEC") on and after
November 9, 1999 (including the registration statement filed in connection with
the Company's initial public offering, the "SEC DOCUMENTS"). As of their
respective dates, the SEC Documents complied in all material respects with
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), as the case may be and the rules and regulations
of the SEC promulgated thereunder applicable to such SEC Documents, and none of
the SEC Documents, except to the extent that information contained in any SEC
Document has been revised or superseded by a later Filed SEC Document (as
defined below), contained any untrue statement of
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a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the Company's prospectus dated November 9,
1999 and the forms 10-Q filed February 14, 2000 and May 15, 2000 comply in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with U.S. generally accepted accounting principles ("GAAP") applied
on a consistent basis during the periods involved (except as may be indicated in
the notes thereto or as described in writing to the Purchasers prior to the date
hereof) and fairly present the consolidated financial position of the Company
and its consolidated subsidiaries as of the dates thereof and the consolidated
results of their operation and cashflows for the periods then ending in
accordance with GAAP (subject, in the case of the unaudited statements, to
normal year end audit adjustments). Except as set forth in the Filed SEC
Documents (as defined below), neither the Company nor any of its subsidiaries
has any material liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) required by GAAP to be set forth on a
consolidated balance sheet of the Company and its consolidated subsidiaries or
in the notes thereto that was not so disclosed other than any liabilities or
obligations which could not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries taken as a whole.
3.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in the SEC
Documents filed and publicly available (either on the EDGAR system or by
delivery to the Purchasers) prior to the date of this Agreement (the "FILED SEC
DOCUMENTS"), since the date of the most recent audited financial statements
included in the Filed SEC Documents, there has not been (i) any declaration,
setting aside or payment of any dividend or distribution (whether in cash, stock
or property) with respect to any of the Company's capital stock, (ii) any split,
combination or reclassification of any of its capital stock or any issuance or
the authorization of any issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock, (iii) any damage,
destruction or loss of property, whether or not covered by insurance, that has
or is likely to have a material adverse effect on the Company and its
subsidiaries taken as a whole, (iv) any change in accounting methods, principles
or practices by the Company materially affecting its assets, liabilities, or
business, except insofar as may have been required by a change in GAAP, (v) any
material adverse effect on the Company and its subsidiaries taken as a whole,
(vi) any amendment, waiver or compromise of a material right of the Company or
obligation owed to the Company under any of the Material Contracts (as defined
below), (vii) any written notice from the SEC in connection with any
investigation or action by the SEC which investigation or action seeks to, or
could reasonably be expected to result in, the restatement by the Company of any
of its current or previously disclosed financial statements, and to the actual
knowledge of any of the executive officers of the Company ("Knowledge"), no such
investigation or action has been threatened by, or is being considered by, the
SEC and no facts or circumstances exist that could reasonably be expected to
result in any such investigation, action or restatement of financial statements,
or (viii) any discussion except as otherwise disclosed with any representative
of any entity regarding the consolidation or merger of the Company with or into
any such entity, regarding the sale, conveyance or disposition of all or
substantially all of the assets of the Company to such entity, regarding any
transactions in which more than 50% of the voting power of the Company is
disposed of, or regarding any other form of acquisition, liquidation,
dissolution or winding up of the Company.
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3.6 GOVERNMENTAL CONSENT, ETC. In reliance on the representations of the
Purchasers contained herein, no consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority on the part
of the Company is required in connection with the valid execution and delivery
of this Agreement, or the offer, sale or issuance of the Shares, the Warrants or
the Warrant Shares, or the consummation of any other transaction contemplated
hereby or thereby, except (i) such filings as may be required to be made with
the SEC and the National Association of Securities Dealers, Inc. or (ii) the
filings to be made by the parties under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR ACT").
3.7 PRIVATE PLACEMENT. Subject in part to the truth and accuracy of
the Purchasers' representations set forth in this Agreement, the offer, sale and
issuance of the Shares and the Warrants as contemplated by this Agreement is
exempt, and the exercise of the Warrants and issuance of the Warrant Shares will
be exempt, from the registration requirements of the Securities Act.
3.8 LITIGATION. Except as is disclosed in the Filed SEC Documents, there
is no suit, action or proceeding pending against the Company or any of its
subsidiaries that, individually or in the aggregate, would (i) have a material
adverse effect on the Company and its subsidiaries taken as a whole, (ii) impair
the ability of the Company to perform its obligations under this Agreement and
the Registration Rights Agreement, or (iii) prevent the consummation of any of
the transactions contemplated by said agreements.
3.9. COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation
or default of any provision of its Certificate of Incorporation or By-laws, each
as amended and in effect as of the Closing. The Company it is not in material
violation or default, and to the Company's Knowledge no other party thereto is
in violation or default, (with or without notice or passage of time, or both) of
any provision of any instrument, mortgage, deed of trust, loan, contract,
commitment, judgement, decree, order or obligation to which it is a party or by
which it or any of its properties or assets are bound which would materially
adversely affect the condition (financial or otherwise), business, property,
assets or liabilities of the Company, taken as a whole, or, to the Company's
Knowledge, of any provision of any federal, state or local statute, rule or
governmental regulation which would materially adversely affect the condition
(financial or otherwise), business, property, assets or liabilities of the
Company, taken as a whole.
3.10. MATERIAL CONTRACTS. The Filed SEC Documents include as exhibits
all contracts or other written agreements which in the reasonable judgment of
the Company required to be filed with the SEC (collectively, the "MATERIAL
CONTRACTS"). Each Material Contract: (i) is valid and binding on the respective
parties thereto and is in full force and effect, and (ii) upon consummation of
the transactions contemplated by this Agreement, shall continue in full force
and effect without penalty or other adverse consequence. Neither the Company nor
any subsidiary is in breach of, or default under, any Material Contract, no
other party to any Material Contract is in breach thereof or default thereunder,
and there is no contract, agreement or other arrangement granting any Person any
preferential right to purchase, other than in the ordinary course of business
consistent with past practice, any of the properties or assets of the Company or
any subsidiary.
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3.11 CAPITALIZATION.
(a) As of the date of this Agreement, the authorized capital stock
of the Company consists of 120,000,000 shares of the Common Stock and 10,000,000
shares of preferred stock, par value $.01 per share, of the Company (the
"COMPANY PREFERRED STOCK").
(b) As of March 31, 2000, there were approximately (1) 44,331,000
shares of the Common Stock issued and outstanding, (2) no shares of the Company
Preferred Stock issued and outstanding, (3) 14,716,493 shares of the Common
Stock reserved for issuance upon exercise of outstanding stock options issued by
the Company to current or former employees and directors of the Company and its
subsidiaries, and (4) no other shares or options, warrants or other rights to
acquire shares of capital stock of the Company or securities convertible into
capital stock of the Company.
(c) All outstanding shares of the Common Stock are duly authorized,
validly issued, fully paid and nonassessable, free from any liens created by the
Company with respect to the issuance and delivery thereof and not subject to
preemptive rights.
(d) Other than as disclosed in the Filed SEC Documents, there are
no outstanding rights, options, warrants, preemptive rights, rights of first
refusal agreements, commitments or similar rights for the purchase or
acquisition from the Company of any securities of the Company.
3.12 REGISTRATION RIGHTS. All registration or similar rights relating to
this Agreement shall be governed by the Registration Rights Agreement, attached
as Exhibit B hereto, of equal date herewith. Except as provided in the
Registration Rights Agreement and Filed SEC Documents, the Company has not
granted or agreed to grant any registration rights, including piggyback rights,
to any person or entity.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER
Each Purchaser hereby represents and warrants, severally and not
jointly, to the Company as follows:
4.1 ORGANIZATION. The Purchaser is a limited partnership duly organized
and validly existing and in good standing under the laws of the State of
Delaware, with all requisite statutory power and authority to own, lease and
operate its properties and to conduct its business as now being conducted.
4.2 AUTHORITY. All requisite action on the part of the Purchaser
necessary for the authorization, execution, delivery and performance of this
Agreement, the Warrant and the Registration Rights Agreement by the Purchaser
has been taken. This Agreement, the Warrant and the Registration Rights
Agreement have been duly executed and delivered by the Purchaser
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and constitute legal, valid and binding obligations of the Purchaser,
enforceable in accordance with their respective terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies, and to limitations of public policy as they may apply to
Section 6 of the Registration Rights Agreement. The execution and delivery of
said agreements do not, and the consummation of the transactions contemplated
hereby and thereby will not, conflict with or result in any violation of any
obligation under any provision of the Limited Partnership Agreement of the
Purchaser or any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Purchaser.
4.3 INVESTMENT. The Purchaser is acquiring the Shares, the Warrants and
the Warrant Shares for investment for its own account, not as a nominee or
agent, and not with a view to, or for resale in connection with, any
distribution thereof. The Purchaser understands that neither the Shares nor the
Warrant Shares have been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser's representations and warranties contained
herein. Nothing contained in this Section 4.3 shall limit in any respect the
Company's representations and warranties contained in this Agreement, the
Warrants or any other written instrument delivered by the Company to the
Purchasers hereunder or thereunder.
4.4 DISCLOSURE OF INFORMATION. The Purchaser has had full access to all
information it considers necessary or appropriate to make an informed investment
decision with respect to the Shares and the Warrant to be purchased by the
Purchaser under this Agreement. The Purchaser further has had an opportunity to
ask questions and receive answers from the Company regarding the terms and
conditions of the offering of the Shares and the Warrant and to obtain
additional information necessary to verify any information furnished to the
Purchaser or to which the Purchaser had access.
4.5 INVESTMENT EXPERIENCE. The Purchaser understands that the purchase
of the Shares, the Warrant and the Warrant Shares involves substantial risk. The
Purchaser has experience as an investor in securities of companies and
acknowledges that it is able to fend for itself, can bear the economic risk of
its investment in the Shares, the Warrant and the Warrant Shares and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of this investment in the Shares, the Warrant
and the Warrant Shares and protecting its own interests in connection with this
investment.
4.6 ACCREDITED INVESTOR STATUS. The Purchaser is an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act.
4.7 RESTRICTED SECURITIES. The Purchaser understands that the Shares to
be purchased by the Purchaser hereunder and pursuant to the Warrant are
characterized as "restricted securities" under the Securities Act inasmuch as
they are being acquired from the Company in a transaction not involving a public
offering and that under the Securities Act and applicable regulations thereunder
such securities may be resold without registration under the Securities Act only
in certain limited circumstances. The Purchaser is familiar with Rule 144 of the
Securities
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Act, as presently in effect, and understands the resale limitations imposed
thereby and by the Securities Act. The Purchaser understands that the Company is
under no obligation to register any of the Shares sold hereunder or pursuant to
the Warrant except as provided in the Registration Rights Agreement.
4.8 GOVERNMENTAL CONSENT, ETC. In reliance on the representations of the
Company contained herein, no consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority on the part
of the Purchaser is required in connection with the valid execution and delivery
of this Agreement, or the offer, sale or issuance of the Shares, or the
consummation of any other transaction contemplated hereby, except (i) such
filings as may be required to be made with the SEC and the National Association
of Securities Dealers, Inc. or (ii) the filings to be made by the parties under
the HSR Act.
SECTION 5
CONDITIONS TO OBLIGATION OF THE PURCHASERS
Each Purchaser's obligation to purchase the Shares at the Closing is
subject to the fulfillment on or prior to the Closing Date of the following
conditions:
5.1 REPRESENTATIONS AND WARRANTIES, PERFORMANCE. Each of the
representations and warranties of the Company contained in Section 3 and 7.7
will be true and correct on and as of the date hereof and on and as of the
Closing Date with the same effect as though such representations and warranties
had been made as of the Closing Date. The Company shall have performed and
complied in all material respects with all covenants, agreements, obligations
and conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing. Each Purchaser shall have received
a certificate signed by an officer of the Company to such effect on the Closing
Date.
5.2 NO ORDER PENDING; HSR. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement. All
waiting periods applicable to the purchase of the Shares under the HSR Act shall
have been terminated or expired.
5.3 NO LAW PROHIBITING OR RESTRICTING SALE OF THE SHARES. There shall
not be in effect any law, rule or regulation prohibiting or restricting the sale
of the Common Stock (including without limitation the Shares and the Warrant
Shares) or the Warrants, or requiring any consent or approval of any person
which shall not have been obtained to issue the Common Stock.
5.4 REGISTRATION RIGHTS AGREEMENT. The Company shall have executed and
delivered the Registration Rights Agreement substantially in the form attached
hereto as Exhibit B.
5.5 OPINION. Each Purchaser shall have received from Preston Gates &
Ellis LLP, counsel to the Company, an opinion dated as of the Closing covering
the substantive issues in the form attached hereto as Exhibit D.
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5.6 COMMON STOCK WARRANT. The Company shall have delivered the Warrants
to each Purchaser, contingent on the closing of the offering contemplated
hereby.
5.7 BOARD REPRESENTATION. (i) The Board of Directors of Company shall
have appointed Jay Hoag to the Company's Board of Directors, contingent on the
closing of the offering contemplated by this Agreement, (ii) the Company shall
have obtained for Mr. Hoag customary directors and officers liability insurance
comparable to that currently in place for other outside directors of the
Company. In addition, the Company hereby covenants that it shall continue to
nominate or cause Mr. Hoag to continue to be nominated for election to the Board
of Directors for so long as the Purchasers continue to own a number of shares of
Common Stock of the Company equal to at least 2,000,000 of the Shares or Warrant
Shares originally purchased hereunder (as adjusted for stock splits and
combinations, stock dividends and the like).
5.8 LISTING. The Shares and the Warrant Shares shall have been approved
for listing, subject only to notice of issuance, on the NASDAQ National Market.
SECTION 6
CONDITIONS TO OBLIGATION OF THE COMPANY
The Company's obligation to sell and issue the Shares at the Closing is
subject to the fulfillment on or prior to the Closing Date of the following
conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of each Purchaser, as applicable, contained in Section 4 and 7.7 will be true
and correct on and as of the date hereof and on and as of the Closing Date with
the same effect as though such representations and warranties had been made as
of the Closing Date. The Company shall have received a certificate signed on
behalf of each Purchaser by an officer of such Purchaser to such effect on the
Closing Date.
6.2 NO ORDER PENDING; HSR. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement. All
waiting periods applicable to the purchase of the Shares under the HSR Act shall
have been terminated or expired.
6.3 NO LAW PROHIBITING OR RESTRICTING THE SALE OF THE SHARES. There
shall not be in effect any law, rule or regulation prohibiting or restricting
the sale of the Shares, or requiring any consent or approval of any person which
shall not have been obtained to issue the Shares with full benefits afforded the
Common Stock (except as otherwise provided in this Agreement).
6.4 REGISTRATION RIGHTS AGREEMENT. Each Purchaser shall have executed
and delivered the Registration Rights Agreement substantially in the form
attached hereto as Exhibit B.
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SECTION 7
MISCELLANEOUS
7.1 COMMERCIALLY REASONABLE EFFORTS. Each of the Company and the
Purchasers shall use its commercially reasonable best efforts to take all
actions required under any law, rule or regulation adopted subsequent to the
date hereto to ensure that the conditions to the Closing set forth herein are
satisfied on or before the Closing Date.
7.2 GOVERNING LAW. This Agreement shall be governed in all respects by
the internal laws of the State of Washington as applied to contracts entered
into solely between residents of, and to be performed entirely within, such
state, and without reference to principles of conflicts of laws or choice of
laws.
7.3 SURVIVAL. The representations and warranties in Sections 3, 4 and
7.7 of this Agreement shall survive for one year after the Closing.
7.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
7.5 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Warrant, the
Registration Rights Agreement constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof and supersede all prior agreements and understandings among the parties
relating to the subject matter hereof (including without limitation the Letter
of Intent dated June 14, 2000 from TCV IV, L.P. to the Company). Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought.
7.6 NOTICES. All notices, requests, demands or other communications
which are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given: (i) on the date of
delivery if personally delivered by hand, (ii) upon the third day after such
notice is deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, (iii) upon the first
day after such notice is deposited with a nationally recognized overnight
express courier, or (iv) upon the receipt of a written confirmation (other than
the automatic confirmation that is received from the recipient's facsimile
machine) of receipt by the recipient of such notice if sent by facsimile:
(a) if to the Company, to it at:
Expedia, Inc.
13810 SE Eastgate Way, Suite 400
Bellevue, WA 98005
Attention: Mark S. Britton, Vice President and General Counsel
Telephone No.: (425) 564-7332
Facsimile No.: (425) 564-7240
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with a copy to:
Richard B. Dodd, Esq.
Preston Gates & Ellis LLP
701 Fifth Avenue, Suite 5000
Seattle, WA 98104-7078
Facsimile Number: (206) 623-7022
(b) if to the Purchasers, to:
TCV IV, L.P.
TCV IV Strategic Partners, L.P.
Technology Crossover Ventures
575 High Street
Suite 400, Palo Alto, CA 94301
Telephone No: (650) 614-8210
Facsimile No.: (650) 614-8222
with a copy to:
Technology Crossover Ventures
56 Main Street, Suite 210
Millburn, NJ 07041
Attention: Robert C. Bensky
Telephone No.: (973) 467-5320
Facsimile No.: (973) 467-5323
Ora Fisher, Esq.
Latham & Watkins
135 Commonwealth Drive
Menlo Park, CA 94025
Telephone No: (650) 328-4600
Facsimile No.: (650) 463-2600
7.7 BROKERS.
(a) The Company has not engaged, consented to or authorized any
broker, finder or intermediary to act on its behalf, directly or indirectly, as
a broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. The Company hereby agrees to indemnify and hold
harmless the Purchasers from and against all fees, commissions or other payments
owing to any party acting on behalf of the Company hereunder.
(b) The Purchasers have not engaged, consented to or authorized any
broker, finder or intermediary to act on their behalf, directly or indirectly,
as a broker, finder or
11
intermediary in connection with the transactions contemplated by this Agreement.
The Purchasers hereby agree, severally and not jointly in proportion to their
respective investments hereunder, to indemnify and hold harmless the Company
from and against all fees, commissions or other payments owing to any party
acting on behalf of such Purchaser hereunder.
7.8 FEES, COSTS AND EXPENSES. The Company shall pay all fees, costs and
expenses (including attorneys' fees and expenses and HSR fees) incurred by the
Company and the Purchasers in connection with the preparation, negotiation and
execution of this Agreement, the Warrants and the Registration Rights Agreement
and the consummation of the transactions contemplated hereby and thereby,
provided that such fees and expenses of the Purchasers are based on standard
hourly billable rates and do not exceed an estimate provided in a letter from
the Purchasers to the Company upon the execution of this Agreement and fees and
expenses incurred in a registration of the Shares or the Warrant Shares shall be
reimbursed only as provided in the Registration Rights Agreement.
7.9 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement or the Registration Rights Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restriction of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
7.10 COUNTERPARTS. This Agreement may be executed in two or more
partially or fully executed counterparts and by facsimile signatures each of
which shall be deemed an original and shall bind the signatory, but all of which
together shall constitute but one and the same instrument. The execution and
delivery of a Signature Page - Common Stock Purchase Agreement in the form
attached to this Agreement by any party hereto who shall have been furnished the
final form of this Agreement shall constitute the execution and delivery of this
Agreement by such party.
7.11 INITIAL PUBLIC ANNOUNCEMENT. The Company and the Purchasers shall
each agree on the form and content of the initial public announcement which
shall be made concerning this Agreement and the Registration Rights Agreement
and the transactions contemplated hereby and thereby, and neither the Company
nor the Purchasers shall make such public announcement without the consent of
the other, except as required by law.
7.12 LEGAL FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the Registration Rights Agreement or any Warrant the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
7.13 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any holder of any Shares upon any breach or default
of the Company under this Agreement shall impair any such right, power or remedy
of such holder, nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a 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 any holder of any breach or default under this Agreement, or any
waiver on the part of any holder of any
12
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing or as
provided in this Agreement. All remedies, either under this Agreement or by law
or otherwise afforded to any holder, shall be cumulative and not alternative.
[this space left intentionally blank]
13
SIGNATURE PAGE--COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date set forth above.
EXPEDIA, INC.
By: /s/ Gregory S. Stanger
----------------------------------------------
Name: Gregory S. Stanger
Title: Vice President and Chief Financial Officer
TCV IV, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management IV, L.L.C.
Its: General Partner
By: /s/ Robert C. Bensky
----------------------------------------------
Name: Robert C. Bensky
Title: Attorney in Fact
TCV IV Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management IV, L.L.C.
Its: General Partner
By: /s/ Robert C. Bensky
----------------------------------------------
Name: Robert C. Bensky
Title: Attorney in Fact
14
Dates Referenced Herein and Documents Incorporated by Reference
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