Promissory Note - priceline.com Inc. and Heidi G. Miller
PROMISSORY NOTE
$3,000,000.00 March 7, 2000
Norwalk, Connecticut
FOR VALUE RECEIVED, the undersigned, HEIDI G. MILLER, an individual
residing at 12 Grahampton Lane, 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 THREE MILLION and 00/100 DOLLARS
($3,000,000.000), together with interest on the unpaid principal amount
hereunder accruing annually at 6.80%. 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
18, 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 any exercise, in whole or in
part at any time prior to the Maturity Date, of the stock option (the
"Option") to purchase 2,500,000 shares of the Company's common stock, par
value $.01 per share, granted by the Company to the Borrower on February
18, 2000 pursuant to the Employment Agreement dated February 18, 2000, by
and between the Company and Borrower (the "Employment Agreement"), in an
amount equal to twenty-five percent (25%) of Borrower's pretax profits from
such exercise, to the extent that the sum of such pretax profits, and of
all prior pretax profits from such exercises, exceeds six million, six
hundred thousand dollars ($6,600,000.00) (the "Profits Threshold"). Within
ten (10) Business Days (as hereinafter defined) following each date that
the Borrower shall receive pretax profits from any exercise of the Option
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 equal to 25% of the excess attributable
to such exercise. 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
Employment Agreement), 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 voluntarily without "Good
Reason", prior thereto (each such term being used as defined in the
Employment Agreement).
The Borrower shall be obligated to prepay this Note in whole, plus
accrued interest, on the date 30 days following the termination of
Borrower's employment by the Company for "Cause" or by the Borrower
voluntarily without "Good Reason".
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, as 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 by institution of
arbitration pursuant to Section 14 of the Employment Agreement.
Notwithstanding anything to the contrary set forth in the Employment
Agreement and provided that no issue is present as to the basis of any
termination of employment of 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
arbitration and seeking judgment on any award if a proceeding shall be
instituted upon this Note and the Company shall prevail in such proceeding.
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.
This Note may be assigned by the Company only to a successor to all,
or substantially all, of its business or assets (through merger
consolidation, sale of assets, or otherwise). This Note shall be construed
and interpreted in accordance with the laws of the State of Delaware.
Except as otherwise provided in this Note, any dispute arising under this
Note shall be resolved in accordance with the terms and procedures set
forth in Section 14 of the Employment Agreement.
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Heidi G. Miller