Agreement of Merger - priceline.com Inc. and priceline.com LLC
AGREEMENT OF MERGER
AGREEMENT OF MERGER (this "Merger Agreement"), dated as of July 31,
1998, between priceline.com Incorporated, a Delaware corporation (the
"Corporation"), and priceline.com LLC, a Delaware limited liability company (the
"LLC"). The Corporation and the LLC are hereinafter sometimes collectively
referred to as the "Constituent Entities."
WHEREAS, the Board of Directors of the Corporation has, by
resolutions duly adopted, approved this Merger Agreement and the transactions
contemplated hereby;
WHEREAS, the sole stockholder of the Corporation has approved this
Merger Agreement and the transactions contemplated hereby;
WHEREAS, the managers of the LLC have approved this Merger Agreement
and the transactions contemplated hereby;
WHEREAS, the holder of a majority of the membership interests in the
LLC has approved this Merger Agreement and the transactions contemplated hereby;
and
WHEREAS, the transactions contemplated by this Merger Agreement and
the Stock Purchase Agreement, dated July 31, 1998, among the Company, General
Atlantic Partners 48, L.P., a Delaware limited partnership and GAP Coinvestment
Partners, L.P., a New York limited partnership, constitute part of a single
integrated transaction and are pursuant to a single integrated plan intended to
qualify as a tax-free transaction under Section 351 of the Internal Revenue Code
of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for the purpose of merging the LLC with and into
the Corporation (the "Merger") and setting forth certain terms and conditions of
the Merger and the mode of carrying the same into effect, the LLC and the
Corporation hereby agree as follows:
1. Merger. Upon the terms and subject to the conditions hereof and in
accordance with Section 264 of the General Corporation Law of the State of Dela-
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ware and Section 18-209 of the Delaware Limited Liability Company Act, the LLC
shall be merged with and into the Corporation and the Corporation shall be, and
is herein referred to as, the "Surviving Entity." The Merger shall become
effective at the time and on the date of the filing of a Certificate of Merger
under the applicable requirements of Delaware law, or such later time and date
as may be set forth in the Certificate of Merger (the "Effective Time").
2. Effect of Merger. At the Effective Time, the separate existence of the
LLC shall cease and the LLC shall be merged with and into the Corporation. The
consummation of the Merger will have the effects provided in Delaware law with
respect to a merger of a domestic limited liability company into a domestic
corporation.
3. Certificate of Incorporation and By-Laws. The Certificate of
Incorporation and the By-Laws of the Corporation shall be the Certificate of
Incorporation and the By-Laws of the Surviving Entity.
4. Directors and Officers.
(a) The director of the Corporation at the Effective Time shall be
the director of the Surviving Entity from and after the Effective Time until his
respective successor or successors are duly elected or appointed and qualified
in the manner provided in the Certificate of Incorporation or By-Laws of the
Corporation or as otherwise provided by law.
(b) The officers of the LLC at the Effective Time shall be the
officers of the Surviving Entity, each to hold office until their respective
successors are duly elected or appointed and qualified in the manner provided in
the Certificate of Incorporation or By-Laws of the Corporation, or as otherwise
provided by law.
5. Further Assurances. From time to time, as and when required by the
Surviving Entity or by its successors and assigns, there shall be executed and
delivered on behalf of the LLC such deeds and other instruments, and there shall
be taken or caused to be taken by it all such further and other action as shall
be appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in the Surviving Entity the title to and possession of all property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of the LLC and otherwise to carry out the purposes of this Merger
Agreement, and the officers of the Surviving Entity are
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fully authorized in the name and on behalf of the LLC or otherwise to take any
and all such action to execute and deliver any and all such deeds and other
instruments.
6. Conversion of Units. As of the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof:
(a) Each equity interest of the LLC ("Unit") issued and outstanding
immediately prior to the Effective Time shall be converted into one duly
authorized, validly issued, fully paid and nonassessable share of common stock,
par value $0.01 (the "Common Stock"), of the Surviving Entity.
(b) All Units to be converted pursuant to Section 6(a) shall from
and after the Effective Time no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist and each holder of a Unit which
immediately prior to the Effective Time represented an equity interest in the
LLC shall cease to have any rights as a member of the LLC, except the right to
receive shares of Common Stock in accordance with Section 6(a) for each Unit
held by them.
7. Conversion of Options. As of the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof:
(a) Each option or right to acquire Units issued by the LLC (each an
"LLC Option") which is outstanding, unexpired and unexercised as of the
Effective Time shall be converted into an option or right to acquire, as the
case may be, a number of shares of Common Stock equal to the number of Units for
which such LLC Option is then exercisable at an exercise price per share of
Common Stock equal to the per Unit option exercise price then applicable to the
LLC Option and otherwise subject to the same terms and conditions of the LLC
Option as in effect immediately prior to the Effective Time, except that all
references to the LLC in such LLC Option shall be deemed to be references to the
Surviving Entity (each such option or right, a "Surviving Entity Option").
(b) All LLC Options to be converted pursuant to Section 7(a) shall
from and after the Effective Time no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist and each holder
of an LLC Option which immediately prior to the Effective Time represented a
right to acquire Units shall cease to have any rights as members of the LLC,
except the right to receive Surviving Entity Options in accordance with Section
7(a) for each LLC Option held by them.
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8. Cancellation of Shares. All shares of Common Stock, issued and
outstanding immediately prior to the Effective Time, shall no longer be
outstanding and shall be cancelled and retired and shall cease to exist.
9. Amendment and Modification. This Merger Agreement may be amended or
modified at any time by the parties hereto, but only pursuant to an instrument
in writing signed by the parties and only in accordance with applicable
provisions of Delaware law.
10. Entire Agreement; Assignment. This Merger Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject matter
hereof.
11. Validity. The invalidity or unenforceability of any term or provision
of this Merger Agreement in any situation or jurisdiction shall not affect the
validity or enforceability of the other terms or provisions in any other
situation or in any other jurisdiction.
12. Governing Law. This Merger Agreement shall be governed by, enforced
under and construed in accordance with the laws of the State of Delaware,
without giving effect to any choice or conflict of law provision or rule
thereof.
13. Descriptive Headings. The descriptive headings therein are inserted
for convenience of reference only and shall in no way be construed to define,
limit, describe, explain, modify, amplify or add to the interpretation,
construction or meaning of any provision of, or scope or intent of, this Merger
Agreement or in any way affect this Merger Agreement.
14. Counterparts. This Merger Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the LLC and the Corporation have caused this
Merger Agreement to be signed by their respective duly authorized persons as of
the date first above written.
PRICELINE.COM LLC
By:
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Name: Paul E. Francis
Title: Chief Financial Officer
PRICELINE.COM INCORPORATED
By:
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Name: Paul E. Francis
Title: Chief Financial Officer
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