Promissory Note - priceine.com Inc. and Jeffery H. Boyd
PROMISSORY NOTE
$2,000,000.00 February 10, 2000
Norwalk, Connecticut
FOR VALUE RECEIVED, the undersigned, JEFFERY H. BOYD, an individual
residing at 34 Brookridge Drive, Greenwich, Connecticut 06830 (the
"Borrower"), hereby promises to pay to the order of PRICELINE.COM
INCORPORATED, a Delaware corporation with an office located at 800
Connecticut Avenue, Norwalk, Connecticut 06854 (the "Company"), the
aggregate principal amount of TWO MILLION and 00/100 DOLLARS
($2,000,000.00), together with interest on the unpaid principal amount
hereunder accruing annually at 6.56%. Subject to any prepayment obligations
hereunder, interest shall be payable in full on the Maturity Date (as
defined below). The unpaid principal amount hereunder, together with all
accrued but unpaid interest, shall be due and payable in full on February
10, 2005 (the "Maturity Date"). Payment of principal and interest shall be
made to the Company at the address indicated above, or at such other
address as the Company may specify in writing to the Borrower.
The Borrower shall pay to the Company a mandatory prepayment of
accrued interest hereunder and principal upon the exercise, at any time on
or prior to February 10, 2005, of one or more Company stock options granted
by the offer of employment dated December 30, 1999, by and between the
Company and Borrower (the "Offer Letter"), in an amount equal to
twenty-five percent (25%) of Borrower's pretax profits in excess of two
million dollars ($2,000,000.00) (the "Profits Threshold"). Within ten (10)
Business Days (as hereinafter defined) following each date that the
Borrower shall exercise options referred to in the Offer Letter in excess
of the Profits Threshold, Borrower shall deliver a mandatory prepayment in
reduction of the accrued interest and outstanding principal balance of this
Note in an amount required by the first sentence of this paragraph. Each
prepayment, as provided herein, shall be applied first against accrued but
unpaid interest under this Note and then in reduction of the outstanding
principal amount hereof until the indebtedness of this Note is paid in
full. "Business Day" shall mean any day on which NASDAQ is not authorized
or required to close and trading of securities is permitted.
The Borrower shall have the right to prepay this Note in whole or in
part at any time, without premium or penalty, but with interest accrued on
the principal being paid to the date of such prepayment.
Notwithstanding anything contained herein to the contrary, the
Borrower shall be released of the outstanding debt evidenced by this Note,
including all accrued but unpaid interest, and the same shall be forgiven
and extinguished upon a "Change in Control", or the death, "Termination for
Disability", "Termination without Cause", or "Termination for Good Reason"
of the Borrower (each such term being used as defined and used in the Offer
Letter), or immediately following expiration of the Maturity Date provided
that the Borrower's employment with the Company has not been terminated for
"Cause" or by the Borrower without "Good Reason" prior thereto (each such
term being used as defined in the Offer Letter).
In the event of the default in the payment of principal or interest
due hereunder when the same shall be due and payable and such default shall
continue for thirty (30) days after receipt by the Borrower of written
notice thereof (a "Default"), then, the Company or any subsequent holder of
this Note, at its option, may, by written notice to the borrower, declare
the entire then unpaid principal amount of this Note and the interest
accrued and unpaid thereon to be immediately due and payable.
If a Default occurs, the Company or any subsequent holder of this
Note, may proceed to protect and enforce its rights either by suit in
equity and/or by action at law, or by other appropriate proceedings.
Notwithstanding anything to the contrary set forth in the Offer Letter and
provided that no issue is present as to the basis of any termination of
employment by the Borrower with the Company, the Borrower promises to pay
the Company's reasonable attorneys' fees and other costs of collection of
this Note or any portion thereof, including the costs of suit if a suit
shall be instituted upon this Note and the Company shall prevail in such
suit.
No delay or omission of the Company or any subsequent holder of this
Note, to exercise any right hereunder, whether before or after the
happening of a Default, shall impair any such right or shall operate as a
waiver thereof or of a Default hereunder nor shall any single or partial
exercise thereof preclude any other or further exercise thereof, or the
exercise of any other right.
The Borrower hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement hereof and consents that no indulgence,
and no substitution, release or surrender of collateral, and no discharge
or release of any other party primarily or secondarily liable hereon, shall
discharge or otherwise affect the liability of the Borrower.
Anything herein contained to the contrary notwithstanding, the
maximum rate of interest payable with respect to the unpaid principal
amount hereof shall not exceed the maximum rate allowable under such
provisions of applicable law.
The rights and benefits of the Company hereunder shall inure to the
benefit of its successors and assigns. This Note shall be construed and
interpreted in accordance with the laws of the State of Delaware.
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JEFFERY H. BOYD