Warrant Agreement - priceline.com Inc. and PriceLine WebHouse Club
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of October 26, 1999 (this "Agreement"),
between PRICELINE.COM INCORPORATED, a Delaware corporation ("Grantee"), and
PRICELINE WEBHOUSE CLUB, INC., a Delaware corporation ("Issuer"),
W I T N E S S E T H :
WHEREAS, Grantee is an Internet-based company with significant name
recognition of its trademarked "priceline" name and patented "demand collection
system" for selling products over the Internet;
WHEREAS, Walker Digital, LLC ("Walker Digital") is a research and
development company containing certain trade secrets, know-how and other
intellectual property;
WHEREAS, in connection with the establishment of Issuer's business
of the sale of retail products in a "name your price" format over the Internet,
(i) Walker Digital is (A) contributing certain know-how, and other assets and
liabilities used in or incurred during the initial development of the Company's
business, pursuant to an asset contribution agreement dated as of the date
hereof between Walker Digital and Issuer (the "Asset Contribution Agreement")
and (B) licensing certain intellectual property pursuant to a license agreement
between Walker Digital and Priceline dated as of the date hereof, which
intellectual property shall in turn be sublicensed by Priceline to Issuer, (ii)
Walker Digital Corporation, a research and development company, is contributing
certain employees to Issuer under the Asset Contribution Agreement, and (iii)
Grantee is (A) licensing and sublicensing, as applicable, the use of the
"priceline" name, certain patent rights and other intellectual property rights
for use in connection with the Issuer's business, pursuant to an intellectual
property license agreement between Grantee and Issuer dated as of the date
hereof, (the "Priceline License Agreement") (B) providing professional services,
including accounting and legal services to Issuer pursuant to a services
agreement between the Grantee and Issuer dated as of the date hereof (the
"Services Agreement"), and (C) providing certain marketing and technical
services to Issuer pursuant to a marketing and technical services agreement
between Grantee and Issuer dated as of the date hereof (the "Marketing and
Technical Services Agreement");
WHEREAS, in consideration for the cash and the assets it has
contributed pursuant to the Asset Contribution Agreement, Walker Digital is
receiving a promissory note in the amount of $14,592,185.60, payable on April
26, 2000;
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WHEREAS, in consideration of their cash contributions, Walker
Digital and certain other investors (the "Investors") are receiving a total of
23,500,000 shares of common stock of Issuer, par value $.01 per share (the
"Common Stock"), pursuant to the subscription agreement dated as of the date
hereof (the "Subscription Agreement") between Issuer and the Investors;
WHEREAS, in consideration for Grantee's execution and deliveries
pursuant to the Priceline License Agreement, Issuer desires to issue, and
Grantee desires to accept, a warrant to purchase up to 137.5 million shares of
Common Stock and furthermore has certain rights to participate in Issuer's
corporate governance;
WHEREAS, Issuer, Walker Digital, Grantee and the Investors will
enter into an agreement providing certain rights to the parties and subjecting
them to certain restrictions (the "Securityholders' Agreement"); and
WHEREAS, in connection with the establishment of Issuer, Grantee is
agreeing, pursuant to the Services Agreement and Marketing and Technical
Services Agreement, to provide services to and to coordinate marketing
activities with the Company in exchange for arm's-length consideration.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants set forth herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Agreement" or "this Agreement" means this Warrant Agreement, dated
as of October 26, 1999, between the Issuer and the Grantor, and all
amendments hereto made in accordance with the provisions of Section 8.09.
"Asset Contribution Agreement" shall have the meaning assigned in
the recitals.
"Board of Directors" means the board of directors of the Issuer.
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"Business Day" means any day that is not a Saturday, a Sunday or
other day on which banks are required or authorized by law to be closed in
the City of New York.
"Capital Stock" means, with respect to any Person at any time, any
and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of capital stock, partnership
interests (whether general or limited), limited liability company
interests or equivalent ownership interests in or issued by such Person.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one
transaction or a series of related transactions, of all or substantially
all of the properties or assets of Issuer to any "person" (as that term is
used in Section 13(d)(3) of the Exchange Act) other than Grantee or an
affiliate of Grantee;
(2) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above) other than Grantee or an affiliate of Grantee,
becomes the Beneficial Owner, directly or indirectly, of voting stock of
Issuer with the power to vote 50% or more of the total votes entitled to
be cast on any matter submitted to a vote of shareholders of Issuer;
(3) during any consecutive two year period, individuals who at the
beginning of such period constituted the Board of Directors (together with
any new directors whose election to the Board of Directors, or whose
nomination for election by the shareholders of Issuer, was approved by the
vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors then in office; or
(4) Issuer consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, Issuer, in any such
event pursuant to a transaction in which any of the outstanding voting
stock of Issuer or such other Person is converted into or exchanged for
cash, securities or other property, other than any such transaction where
the voting stock of Issuer outstanding immediately prior to such
transaction is converted into or exchanged for voting stock of the
surviving or transferee Person constituting a majority of the outstanding
shares of such voting stock of such surviving or transferee Person
(immediately after giving effect to such issuance) and no Person other
than Grantee or an affiliate of Grantee becomes the Beneficial Owner,
directly or indirectly, of voting stock of such Person with the power to
vote 50% or more of the total votes entitled to be cast on any matter
submitted to a vote of shareholders.
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"Closing" shall have the meaning assigned in Section 5.01.
"Common Stock" shall have the meaning assigned in the recitals.
"Control" (including the terms "Controlled by" and "under common
Control with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect
a majority of the board of directors or similar body governing the affairs
of such Person.
"Convertible Securities" shall have the meaning assigned in Section
2.04(b)(i).
"Employee Options" shall mean the options to acquire 17.3 million
Shares that may be granted to employees, consultants, directors and
officers of Issuer pursuant to the Issuer's 1999 Omnibus Employee Equity
Plan, as amended from time to time, or any successor plan.
"Encumbrance" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement or restriction of any
kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of
ownership.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Exercise Event" shall have the meaning assigned in Section 2.02(b).
"Exercise Notice" shall have the meaning assigned in Section
2.02(c).
"Exercise Price" shall have the meaning assigned in Section 2.01.
"Expiration Date" shall have the meaning assigned in Section
2.02(a).
"Governmental Entities" means any domestic or foreign governmental,
administrative or regulatory authority or agency.
"Grantee" shall have the meaning assigned in the preamble.
"Grantee Common Stock" shall have the meaning assigned in Section
2.02(c).
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"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Initial Public Offering" means the first underwritten public
offering of the Common Stock resulting in aggregate net proceeds (after
expenses and underwriting commissions and discounts) to Issuer and any
selling stockholders of at least $50 million; provided that, following
such offering the Common Stock is listed on a United States or foreign
national securities exchange or quoted on any United States or foreign
automated securities quotation system.
"Insolvency Event" means, in respect of a Person, that time when the
sum of the Company's debts exceeds the sum of its assets, valued at fair
market value; or that such Person shall not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by it or against it seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period
of 30 days or any of the actions sought in proceeding (including, without
limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or any
substantial part of it property) shall occur; or Issuer shall take any
corporate action to authorize any of the actions set forth above.
"Investors" shall have the meaning assigned in the recitals.
"Issuer" shall have the meaning assigned in the preamble.
"Marketing and Technical Services Agreement" shall have the meaning
assigned in the recitals.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Net Revenue" means the net revenue of Issuer as disclosed on the
annual audited financial statements for any fiscal year and the unaudited
quarterly financial statements for any fiscal quarter.
"New Securities" means any Capital Stock of Issuer, whether now
authorized or not, and rights, options or warrants to purchase such
Capital Stock, and securities of any
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type whatsoever that are, or may become, convertible into or exchangeable
or exercisable for Capital Stock of Issuer; provided that the term "New
Securities" does not include (i) securities of Issuer issued to employees,
consultants, officers or directors of Issuer, or which have been reserved
for issuance, pursuant to any employee stock option, stock purchase, stock
bonus plan, or other similar stock agreement or arrangement approved by
the Board of Directors, including the Priceline designee to the Board,
(ii) securities of Issuer issued in connection with any stock split, stock
dividend or recapitalization of Issuer, (iii) securities of Issuer issued
in an Initial Public Offering, (iv) securities of Issuer issued upon the
conversion or exchange of convertible or exchangeable securities of Issuer
that are outstanding as of the date of this Agreement, (v) Warrant Shares
or (vi) any right, option or warrant to acquire any security convertible
into or exchangeable or exercisable for the securities excluded from the
definition of New Securities pursuant to subclause (i) above if issued
pursuant to any employee stock option, stock purchase, stock bonus plan or
other similar stock agreement or arrangement approved by the Board of
Directors, including the Priceline designee to the Board of Directors.
"Notice of Issuance" shall have the meaning assigned in Section
2.05(b).
"Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well
as any syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Exchange Act.
"Priceline License Agreement" shall have the meaning assigned in the
recitals.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"Services Agreement" shall have the meaning assigned in the
recitals.
"Share" means any share of Common Stock.
"Stock Payment Amount" shall have the meaning assigned in Section
2.03(a).
"Stockholder" means each Person (other than the Issuer) who shall
own, beneficially or of record, any Shares and be listed in the share
registry of the Issuer as the owner thereof.
"Subscription Agreement" shall have the meaning assigned in the
recitals.
"Subsidiary" or "Subsidiaries" of any Person means any corporation,
partnership, joint venture, association or other entity, all of the
Capital Stock or other similar equity
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interests of which, are owned beneficially and of record by such Person
directly or indirectly through one or more intermediaries.
"Third Party" means, with respect to Grantee, any Person, other than
(i) Issuer, (ii) any Subsidiary of Issuer or (iii) any Subsidiary of
Grantee.
"Walker Digital" shall have the meaning assigned in the recitals.
"Warrant" shall have the meaning assigned in Section 2.01.
"Warrant Shares" shall have the meaning assigned in Section 2.01.
ARTICLE II
THE WARRANT
SECTION 2.01. Grant of Warrant. Issuer hereby grants to Grantee an
irrevocable, fully vested warrant (the "Warrant") to purchase 137,500,000 Shares
(the "Warrant Shares"), at a purchase price per Warrant Share initially equal to
$3.00 (the "Exercise Price"), subject to the terms and conditions set forth
herein. The number of shares constituting the Warrant Shares and the Exercise
Price are both subject to adjustment as set forth in Section 2.04 hereof.
SECTION 2.02. Exercise of Warrant. (a) Subject to the conditions set
forth in Article VI, the Warrant may be exercised by Grantee, in whole or in
part, at any time after the fifth anniversary of the date of this Agreement or,
if earlier, the occurrence of an Exercise Event; provided that the Warrant shall
terminate and be of no further force and effect upon the earlier to occur of (i)
Closing of the final exercise of the Warrant, (ii) sixty (60) days after the
Issuer notifies Grantee of a willful and material breach by Grantee of Section
6.02 of the License Agreement, if such breach is not cured prior to the
expiration of such sixty (60) day period, and (iii) thirty days following the
fifth anniversary of the date hereof (the "Expiration Date"). Notwithstanding
the termination of the Warrant, Grantee shall be entitled to purchase those
Warrant Shares with respect to which it has issued an Exercise Notice (as
defined below) prior to the termination of the Warrant. The termination of the
Warrant shall not affect any rights hereunder which by their terms extend beyond
the date of such termination.
(b) An "Exercise Event" shall occur for purposes of this Agreement
upon the occurrence of any of the following events:
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(i) Issuer achieves Net Revenue of $[**] for any four-quarter period
immediately preceding the date of measurement, or any shorter period in
which Issuer achieves Net Revenue of $[**];
(ii) the occurrence of an Insolvency Event in respect of Issuer;
(iii) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(iv) the occurrence of a Change of Control, or Board approval of a
transaction that would result in a Change of Control; or
(v) Board approval of an Initial Public Offering.
Promptly upon the occurrence of any event described in clauses (i) and (ii)
above, and no later than fifteen (15) days prior to an event described in
clauses (iii) through (v) above, Issuer shall provide Grantee with notice of
such event together with the consolidated financial statements of Issuer, and
Grantee may exercise the Warrant until the Expiration Date.
(c) The Warrant shall be exercised by written notice from Grantee to
Issuer (an "Exercise Notice") stating that the Warrant is being exercised and
setting forth: (i) a proposed closing date, which (subject to the earlier
satisfaction or waiver of the conditions set forth in Article VI) shall be:
(A) in the case of an exercise upon the fifth anniversary hereof or
pursuant to clause (b)(i) or (b)(ii) above, no earlier than fifteen (15)
days after, and no later than thirty (30) days after, the date of delivery
of such notice, and
(B) in the case of an exercise pursuant to clause (b)(iii) through
(b)(v) above, shall be the closing date of the transaction giving rise to
the Exercise Event or such earlier date as shall be specified in the
Exercise Notice,
on which date the Warrant Shares shall be issued; (ii) the number of Warrant
Shares to be purchased; and (iii) whether Grantee will purchase the Warrant
Shares with cash, shares of Grantee's common stock, par value $.01 per share
("Grantee Common Stock") or a combination thereof (including the relative
percentage of any combination). The Warrant shall be deemed to be exercised on
the date of delivery of the Exercise Notice, at which time the decision to
exercise the Warrant shall be irrevocable; provided that, in the case of an
exercise pursuant to clause (b)(iv) or (b)(v) above, the Warrant's exercise
shall be conditional upon the closing of the transaction giving rise to the
Exercise Event.
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(d) In the event that Grantee exercises the Warrant in part only,
upon such exercise Issuer shall execute and deliver to Grantee, at Issuer's
expense, a new Warrant exercisable for the number of Shares representing the
unexercised portion of the Warrant so exercised in part.
SECTION 2.03. Form of Payment. (a) The Exercise Price may be paid in
cash, in shares of Grantee Common Stock or in any combination thereof at the
sole discretion of the Grantee. The number of shares of Grantee Common Stock to
be delivered in payment of all or a portion of the aggregate Exercise Price (the
"Stock Payment Amount") shall be determined by dividing the portion of the
aggregate Exercise Price to be paid in Grantee Common Stock by the average of
the closing prices of Grantee Common Stock quoted on the Nasdaq Stock Market
(or, if then traded on a national securities exchange, the average of the
closing prices of Grantee Common Stock on the principal national securities
exchange on which listed or, if quoted on the NASD OTC Bulletin Board, the
average of the means of the closing bid and asked price of Grantee Common Stock)
on each of the ten (10) trading days immediately preceding the date the Exercise
Notice is delivered.
(b) In the event of any change in Grantee Common Stock or in the
number of outstanding shares of Grantee Common Stock between the date of an
Exercise Notice and the Closing by reason of a stock dividend, split-up,
recapitalization, combination, exchange of shares or similar transaction or any
other extraordinary change in the corporate or capital structure of Grantee
(including, without limitation, the declaration or payment of an extraordinary
dividend of cash, securities or other property), the type and number of shares
or securities to be delivered by Grantee in payment of the Stock Payment Amount
shall be adjusted appropriately so that Issuer shall receive upon payment of the
Stock Payment Amount the number and class of shares or other securities or
property that Issuer would have received in respect of Grantee Common Stock if
Grantee had paid the Stock Payment Amount immediately prior to such change.
SECTION 2.04. Adjustments upon Share Issuances, Changes in
Capitalization, Etc. (a) In the event that Issuer shall issue or sell, prior to
the exercise in full or expiration of the Warrant, any Shares (except as
provided in paragraph (f) below) or Convertible Securities (as hereinafter
defined) or any rights or options to purchase Shares or Convertible Securities
for a consideration per share less than the Exercise Price in effect immediately
prior to such issue or sale, then forthwith upon such issue or sale the Exercise
Price shall be reduced to a price (calculated to the nearest $.0001) determined
by dividing (i) an amount equal to the sum of (A) the number of Shares
outstanding immediately prior to such issue or sale multiplied by the Exercise
Price then in effect, and (B) the consideration, if any, received by the Issuer
upon such issue or sale, by (ii) the total number of Shares outstanding
immediately after such issue or sale.
(b) For the purposes of calculating any adjustment to the Exercise
Price pursuant to paragraph (a) above, the following provisions shall apply:
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(i) In case at any time Issuer shall grant any rights to subscribe
for, or any rights or options to purchase, Common Stock or any stock or
other securities convertible into or exchangeable for Common Stock (such
convertible or exchangeable stock or securities being herein called
"Convertible Securities"), whether or not such rights or options or the
right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per Share for which Common Stock is
issuable upon the exercise of such rights or options or upon conversion or
exchange of such Convertible Securities
(determined by dividing (A) the total amount, if any, received or
receivable by Issuer as consideration for the granting of such
rights or options, plus the minimum aggregate amount of additional
consideration payable to Issuer upon the exercise of such rights or
options, plus, in the case of any such rights or options which
relate to such Convertible Securities, the minimum aggregate amount
of additional consideration, if any, payable upon the issue or sale
of such Convertible Securities and upon the conversion or exchange
thereof, by (B) the total maximum number of Shares issuable upon the
exercise of such rights or options or upon the conversion or
exchange of all such Convertible Securities issuable upon the
exercise of such rights or options)
shall be less than the Exercise Price in effect immediately prior to the
time of the granting of such rights or options, then the total maximum
number of Shares issuable upon the exercise of such rights or options or
upon conversion or exchange of the total maximum amount of such
Convertible Securities issuable upon the exercise of such rights or
options shall (as of the date of granting of such rights or options) be
deemed to be outstanding and to have been issued for such price per Share.
Except as provided in paragraph (e) of this Section 2.04, no further
adjustments of the Exercise Price shall be made upon the actual issue of
such Common Stock or of such Convertible Securities upon exercise of such
rights or options or upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities.
(ii) In case at any time Issuer shall issue or sell any Convertible
Securities, whether or not the rights to exchange or convert thereunder
are immediately exercisable, and the price per Share for which Common
Stock is issuable upon such conversion or exchange
(determined by dividing (A) the total amount received or receivable
by Issuer as consideration for the issue or sale of such Convertible
Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to Issuer upon the
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conversion or exchange thereof, by (B) the total maximum number of
Shares issuable upon the conversion or exchange of all such
Convertible Securities)
shall be less than the Exercise Price in effect immediately prior to the
time of such issue or sale, then the total maximum number of Shares
issuable upon conversion or exchange of all such Convertible Securities
shall (as of the date of the issue or sale of such Convertible Securities)
be deemed to be outstanding and to have been issued for such price per
Share, provided that (i) except as provided in paragraph (e) of this
Section 2.04, no further adjustments of the Exercise Price shall be made
upon the actual issue of such Common Stock upon conversion or exchange of
such Convertible Securities, and (ii) if any such issue or sale of such
Convertible Securities is made upon exercise of any rights to subscribe
for or to purchase or of any option to purchase any such Convertible
Securities for which adjustments of the Exercise Price have been or are to
be made pursuant to other provisions of this paragraph (b), no further
adjustment of the Exercise Price shall be made by reason of such issue or
sale.
(iii) In case at any time Issuer shall declare a dividend or make
any other distribution upon any stock of the Company payable in Common
Stock or Convertible Securities, any Common Stock or Convertible
Securities, as the case may be, issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without
consideration.
(iv) In case at any time any Share or Convertible Securities or any
rights or options to purchase any Common Stock or Convertible Securities
shall be issued or sold for cash, the consideration received therefor
shall be deemed to be the amount received by Issuer therefor, without
deduction therefrom of any expenses incurred or any underwriting
commissions or concessions or discounts paid or allowed by Issuer in
connection therewith. In case any Shares or Convertible Securities or any
rights or options to purchase any Common Stock or Convertible Securities
shall be issued or sold for a consideration other than cash, the amount of
the consideration other than cash received by Issuer shall be deemed to be
the fair value of such consideration as determined by the Board of
Directors, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions or discounts paid or allowed by
Issuer in connection therewith. In case any Shares or Convertible
Securities or any rights or options to purchase any Common Stock or
Convertible Securities shall be issued in connection with any merger of
another corporation into Issuer, the amount of consideration therefor
shall be deemed to be the fair value of the assets of such merged
corporation as determined by the Board of Directors after deducting
therefrom all cash and other consideration (if any) paid by Issuer in
connection with such merger.
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(v) In case at any time Issuer shall take a record of the holders of
Common Stock for the purpose of entitling them (i) to receive a dividend
or other distribution payable in Common Stock or Convertible Securities,
or (ii) to subscribe for or purchase Common Stock or Convertible
Securities, then such record date shall be deemed to be the date of the
issue or sale of the Shares deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution or
the date of the granting of such right of subscription or purchase, as the
case may be.
(c) In the event that Issuer shall make any distribution of its
assets upon or with respect to its Common Stock, as a liquidating or partial
liquidating dividend or otherwise, Grantee shall, upon any exercise of the
Warrant subsequent to the record date for such distribution or, in the absence
of a record date, subsequent to the date of such distribution, receive, in
addition to the Shares subscribed for, the amount of such assets (or, at the
option of Issuer, a sum equal to the value thereof at the time of distribution
as determined by the Board of Directors in its sole discretion) which would have
been distributed to Grantee if it had exercised the Warrant for that number of
Shares immediately prior to the record date for such distribution or, in the
absence of a record date, immediately prior to the date of such distribution.
(d) In case at any time Issuer shall subdivide its outstanding
Shares into a greater number of Shares, the Exercise Price in effect immediately
prior to such subdivision shall be proportionately reduced and conversely, in
case the outstanding Shares of the Issuer shall be combined into a smaller
number of Shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased.
(e) (i) If the purchase price provided for in any right or option
referred to in subparagraph (i) of paragraph (b) above, or the rate at which any
Convertible Securities referred to in subparagraph (i) or (ii) of said paragraph
(b) are convertible into or exchangeable for Common Stock, shall change or a
different purchase price or rate shall become effective at any time or from time
to time (other than under or by reason of provisions designed to protect against
dilution), then, upon such change becoming effective, the Exercise Price then in
effect hereunder shall forthwith be increased or decreased to such Exercise
Price as would have obtained had the adjustments made upon the granting or
issuance of such rights or options or Convertible Securities been made upon the
basis of (1) the issuance of the number of Shares theretofore actually delivered
upon the exercise of such options or rights or upon the conversion or exchange
of such Convertible Securities, and the total consideration received therefor,
and (2) the granting or issuance at the time of such change of any such options,
rights, or Convertible Securities then still outstanding for the consideration,
if any, received by the Company therefor and to be received on the basis of such
changed price.
(ii) On the expiration of any right or option referred to in
subparagraph (i) of paragraph (b) above, or on the termination of any right to
convert or exchange any Convertible Securities referred to in subparagraph (i)
or (ii) of said paragraph (b), the Exercise Price shall
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forthwith be readjusted to such amount as would have obtained had the adjustment
made upon the granting or issuance of such rights or options or Convertible
Securities been made upon the basis of the issuance or sale of only the Shares
actually issued upon the exercise of such options or rights or upon the
conversion or exchange of such Convertible Securities.
(iii) If the purchase price provided for in any right or option
referred to in subparagraph (i) of paragraph (b) above, or the rate at which any
Convertible Securities referred to in subparagraph (i) or (ii) of said paragraph
(b) are convertible into or exchangeable for Common Stock, shall change at any
time under or by reason of provisions with respect thereto designed to protect
against dilution, then in case of the delivery of Common Stock upon the exercise
of any such right or option or upon conversion or exchange of any such
Convertible Security, the Exercise Price then in effect hereunder shall
forthwith be decreased to such Exercise Price as would have obtained had the
adjustments made upon the issuance of such right or option or Convertible
Security been made upon the basis of the issuance of (and the total
consideration received for) the Shares so delivered.
(f) Issuer shall not be required to make any adjustment of the
Exercise Price in the case of:
(i) the granting by Issuer of Employee Options,
(ii) the issuance of Shares pursuant to the exercise of Employee
Options, whether granted prior to or subsequent to the date hereof, or
(iii) the issuance of such additional Shares as may be issuable upon
the exercise of such options as a result of adjustment in the number of
Shares covered by such options for stock dividends, stock splits or other
changes in the capitalization of Issuer.
(g) If any capital reorganization or reclassification of the Capital
Stock of Issuer, or consolidation or merger of Issuer with another corporation,
or the sale of all or substantially all of its assets to another corporation,
shall be effected in such a way that holders of Common Stock shall be entitled
to receive stock, securities or assets with respect to or in exchange for Common
Stock, then, as a condition of such reorganization, reclassification,
consolidation, merger or sale, Issuer or such successor or purchasing
corporation, as the case may be, shall execute with Grantee an agreement
providing that Grantee shall have the right thereafter and until the Expiration
Date to exercise the Warrant for the kind and amount of stock, securities or
assets receivable upon such reorganization, reclassification, consolidation,
merger or sale by a holder of the number of Shares for which the Warrant might
have been exercised immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
2.04.
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(h) (i) Whenever the Exercise Price is adjusted pursuant to the
provisions of this Section 2.04, the number of Warrant Shares for which the
Warrant is exercisable shall be adjusted so that it shall equal the number
determined by multiplying the number of Warrant Shares for which the Warrant was
exercisable immediately prior to such adjustment by a fraction, the numerator of
which shall be the Exercise Price in effect immediately prior to such
adjustment, and the denominator of which shall be the Exercise Price in effect
immediately thereafter.
(ii) Issuer shall not be required to issue fractional Shares upon
any exercise of the Warrant following any adjustment in the number of Warrant
Shares for which the Warrant is exercisable pursuant to subparagraph (i) above.
If any fraction of a Share would, except for the provisions of this sentence, be
issuable on the exercise of the Warrant (or specified portion thereof), Issuer
shall pay an amount in cash calculated by it to be equal to the then current
market value per Share multiplied by such fraction, rounded to the nearest whole
cent.
(i) The provisions of this Agreement, including, without limitation,
Sections 2.01, 2.02, 2.04, 2.05 and 5.04, shall apply with appropriate
adjustments to any securities for which the Warrant becomes exercisable pursuant
to this Section 2.04.
SECTION 2.05. Right to Purchase New Securities. (a) In the event
that Issuer proposes to issue New Securities (prior to, and other than in
connection with, an Initial Public Offering), Grantee shall have the right to
purchase in lieu of the Person to whom Issuer proposed to issue such New
Securities, in accordance with paragraph (b) below, a number of Shares or other
New Securities which Issuer proposes to issue equal to the product of (i) the
total number or amount of Shares or other New Securities which Issuer proposes
to issue at such time and (ii) a fraction, the numerator of which shall be the
total number of Shares which Grantee owns or is entitled to purchase on the
fifth anniversary of the date of this Agreement or, if earlier, upon the
occurrence of an Exercise Event, pursuant to this Warrant, and the denominator
of which shall be the total number of Shares then outstanding plus the total
number of Shares which Grantee is entitled to purchase on the fifth anniversary
of the date of this Agreement or, if earlier upon the occurrence of an Exercise
Event, pursuant to this Warrant. The rights given by Issuer under this Section
2.05 shall terminate if unexercised within 30 days after receipt of the Notice
of Issuance referred to in paragraph (b) below.
(b) In the event that Issuer proposes to undertake an issuance of
New Securities (prior to an Initial Public Offering), it shall give written
notice (a "Notice of Issuance") of its intention to Grantee, describing all
material terms of the New Securities, the price and all material terms upon
which Issuer proposes to issue such New Securities. The Grantee shall have 30
days from the date of the Notice of Issuance to agree to purchase all or any
portion of its pro rata share of such New Securities (as determined pursuant to
paragraph (a) above) for the same consideration, if such consideration shall
consist solely of cash, or for cash, cash equivalents or
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marketable securities having an equivalent value to the consideration payable by
the Person to whom Issuer proposes to issue such New Securities at the time of
payment, and otherwise upon the terms specified in the Notice of Issuance by
giving written notice to Issuer, and stating therein the quantity of New
Securities to be purchase by Grantee.
SECTION 2.06. Further Assurances. Issuer and Grantee shall use
reasonable efforts to take, or cause to be taken, all appropriate action, and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws to consummate and make effective the transactions contemplated
hereunder, including, without limitation, using reasonable efforts to obtain all
required licenses, permits, consents, approvals, authorizations, qualifications
and orders of Governmental Entities. Without limiting the generality of the
foregoing, the parties hereto shall, when required in order to effect the
transactions contemplated hereunder, make all necessary filings, and thereafter
make any other required or appropriate submissions, under the HSR Act and shall
supply as promptly as practicable to the appropriate Governmental Entity any
additional information and documentary material that may be requested pursuant
to the HSR Act. Each of the parties hereto shall cooperate with the other when
required in order to effect the transactions contemplated hereunder. In case at
any time after the date hereof, any further action is necessary or desirable to
carry out the purposes of this Agreement, the proper officers and directors of
each of the parties hereto shall use their reasonable best efforts to take all
such action.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ISSUER
Issuer hereby represents and warrants to Grantee as follows:
SECTION 3.01. Due Organization and Authority. Issuer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all necessary power and authority to enter into
this Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. Issuer is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so licensed
or qualified would not materially and adversely affect the assets, liabilities
or results of operations of Issuer or prevent or materially delay the
consummation of the transactions contemplated by this Agreement. The execution
and delivery of this Agreement by Issuer, the performance of Issuer's
obligations hereunder and the consummation of the transactions contemplated
hereby have been duly authorized by all requisite action on the part of Issuer.
This Agreement has been duly executed and delivered by Issuer, and (assuming due
authorization, execution and delivery by the other party hereto) this Agreement
constitutes legal, valid and binding obligations of Issuer enforceable against
Issuer in accordance with its terms.
SECTION 3.02. Capital Stock of Company. The authorized capital stock
of Issuer consists of 300,000,000 shares of Common Stock, of which 23,500,000
shares will be issued and outstanding following the closing of the Subscription
Agreement, and 50,000,000 shares of preferred stock, of which none has been
designated or issued by Issuer. Issuer has reserved Common Stock for issuance in
the amounts and for the purposes that follow:
(i) 137.5 million shares of Common Stock have been reserved for
issuance upon exercise of the Warrant;
(ii) 666,667 shares of Common Stock have been reserved for issuance
upon exercise of the warrant held by BDS Business Center, Inc.;
(iii) 65,000 shares of Common Stock have been reserved for issuance
upon exercise of the warrant held by William Shatner; and
(iv) 17,333,333 shares of Common Stock have been reserved for
issuance upon the exercise of certain employee options to be granted
pursuant to the Company's Omnibus Employee Equity Plan, of which
12,911,749 shares relate to options that have been granted as of the date
hereof.
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Except as set forth above, (i) no shares of Capital Stock of Issuer
have been reserved for issuance for any reason; (ii) no subscription, warrant,
option, convertible security, or other right (contingent or other) to purchase
or otherwise acquire Capital Stock of Issuer is authorized or outstanding; and
(iii) Issuer has made no commitment to issue shares, subscription, warrants,
options, convertible securities, or other such rights or to distribute to
holders of any of its Capital Stock any evidence of indebtedness or asset.
SECTION 3.03. Authority to Issue Shares. Issuer has taken all
necessary corporate action to authorize and reserve and permit it to issue, and
at all times from the date hereof until its obligation to deliver shares of
Common Stock upon the exercise of the Warrant terminates, shall have reserved,
all the Warrant Shares issuable pursuant to this Agreement, and Issuer shall
take all necessary corporate action to authorize and reserve and permit it to
issue all additional shares of Common Stock or other securities which may be
issued pursuant to Section 2.04 or 2.05, all of which, upon their issuance and
delivery in accordance with the terms of this Agreement, shall be duly
authorized, validly issued, fully paid and nonassessable and free of preemptive
rights.
SECTION 3.04. No Conflict. Assuming that all consents, approvals,
authorizations and other actions described in Section 3.05 have been obtained,
the execution, delivery and performance of this Agreement by Issuer does not and
will not (a) violate, conflict with or result in the breach of any provision of
Issuer's Certificate of Incorporation or By-laws, (b) conflict with or violate
any law, governmental regulation or governmental order applicable to Issuer or
any of its respective assets, properties or businesses, or (c) conflict with,
result in any breach of, constitute a default (or event which with the giving of
notice or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on any of the assets or properties of Issuer
pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which
Issuer is a party or by which any of such assets or properties is bound or
affected; except to the extent that any conflict under (b) or (c) above would
not materially and adversely affect Issuer's assets, liabilities or results of
operations or prevent or materially delay the consummation of the transactions
contemplated by this Agreement.
SECTION 3.05. Governmental Consents and Approvals. The execution,
delivery and performance of this Agreement by Issuer does not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to, any Governmental Entities, except such as are
required by the HSR Act.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GRANTEE
Grantee hereby represents and warrants to Issuer as follows:
SECTION 4.01. Due Organization and Authority. Grantee is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all necessary power and authority to enter into
this Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. Grantee is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so licensed
or qualified would not prevent or materially delay the transactions contemplated
by this Agreement. The execution and delivery of this Agreement by Grantee, the
performance of Grantee's obligations hereunder and the consummation of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of Grantee. This Agreement has been duly executed and
delivered by Grantee, and (assuming due authorization, execution and delivery by
the other party hereto) this Agreement constitutes legal, valid and binding
obligations of Grantee enforceable against Grantee in accordance with its terms.
SECTION 4.02. No Conflict. Assuming that all consents, approvals,
authorizations and other actions described in Section 4.03 have been obtained,
the execution, delivery and performance of this Agreement by Grantee does not
and will not (a) violate, conflict with or result in the breach of any provision
of Grantee's Certificate of Incorporation or By-laws, (b) conflict with or
violate any law, governmental regulation or governmental order applicable to
Grantee or any of its assets, properties or businesses, or (c) conflict with,
result in any breach of, constitute a default (or event which with the giving of
notice or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights pursuant to, any contract, agreement
or arrangement by which Grantee is bound; except to the extent that any conflict
under (b) or (c) above would not prevent or materially delay the consummation of
the transactions contemplated by this Agreement.
SECTION 4.03. Governmental Consents and Approvals. The execution,
delivery and performance of this Agreement by Grantee does not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to, any Governmental Entities, except such as are
required by the HSR Act.
SECTION 4.04. Private Placement. Grantee understands that the
offering and sale of the Warrant Shares hereunder are intended to be exempt from
registration under the Securities Act pursuant to Section 4(2) of the Securities
Act and represents the following:
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(a) The Warrant Shares are being acquired for Grantee's own account
and without a view to the public distribution thereof or any interest
therein;
(b) Grantee is an "accredited investor" as such term is defined in
Regulation D, as amended, under the Securities Act; and
(c) Grantee has sufficient knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of
its investment in the Warrant Shares, and is capable of bearing the
economic risks of such investment, including a complete loss of its
investment in the Warrant Shares.
ARTICLE V
CLOSING
SECTION 5.01. Closing. Upon the terms and subject to the conditions
set forth in this Agreement, the transactions provided for in Article II shall
take place at one or more closings (each a "Closing") to be held at the offices
of the Issuer at One High Ridge Park, Stamford, Connecticut, at 10:00 a.m.
Eastern Standard Time on the later of the proposed closing date specified in the
Exercise Notice or the Business Day immediately following the satisfaction or
waiver of all conditions to the obligations of the parties as set forth in
Article VI, or at such other place or at such other time or on such other date
as the parties may mutually agree.
SECTION 5.02. Closing Deliveries by Issuer. At each Closing, Issuer
shall deliver to Grantee:
(a) a certificate or certificates evidencing the number of Warrant
Shares registered in Grantee's name and in such denominations as Grantee
shall request;
(b) a certificate from Issuer, signed by a duly authorized officer,
to the effect that the representations and warranties of Issuer contained
in this Agreement are true and correct as of the Closing, with the same
force and effect as if made on the date of the Closing, and that all
covenants and agreements of Issuer contained in this Agreement to be
complied with on or prior to the Closing have been complied with;
(c) a true and complete copy, certified by the Secretary of Issuer,
of the resolutions duly and validly adopted by the Board, evidencing their
authorization of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, together with a
certified copy of the Certificate of Incorporation and By-laws of Issuer;
and
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(d) a legal opinion of Shearman & Sterling, counsel to Issuer, in
form and substance satisfactory to Grantee.
SECTION 5.03. Closing Deliveries by Grantee. At each Closing,
Grantee shall deliver:
(a) a certificate, signed by a duly authorized officer, to the
effect that the representations and warranties of such party contained in
this Agreement are true and correct as of the Closing, with the same force
and effect as if made on the date of the Closing, and that all covenants
and agreements of Grantee contained in this Agreement to be complied with
on or prior to the Closing have been complied with; and
(b) the Exercise Price for the Warrant Shares by wire transfer of
immediately available funds and delivery of a certificate or certificates
evidencing Grantee Common Stock equal to the Stock Payment Amount, if any,
accompanied by such legal opinions, officer's certificates and other
supporting documentation as Issuer shall reasonably require.
SECTION 5.04. Legends on Certificates. (a) Certificates evidencing
Warrant Shares delivered hereunder may, at Issuer's election, contain the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933 OR AN EXEMPTION THEREFROM
AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE STATE SECURITIES
LAWS.
Such certificates shall not bear such legend if in the opinion of counsel
satisfactory to Issuer (it being agreed that Shearman & Sterling shall be
satisfactory) the securities being sold thereby may be publicly sold without
registration under the Securities Act.
(b) Certificates evidencing Grantee Common Stock delivered hereunder
as the Stock Payment amount may, at Grantee's election, contain the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT
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OF 1933 OR AN EXEMPTION THEREFROM AND, IN EACH CASE, IN COMPLIANCE
WITH APPLICABLE STATE SECURITIES LAWS.
Such certificates shall not bear such legend if in the opinion of counsel
satisfactory to Grantee (it being agreed that Skadden, Arps, Slate, Meagher &
Flom shall be satisfactory) the securities being sold thereby may be publicly
sold without registration under the Securities Act.
ARTICLE VI
CONDITIONS TO CLOSING
The obligations of each party to this Agreement to consummate the
transactions contemplated hereby shall be subject to the fulfillment, at or
prior to each Closing, of each of the following conditions:
SECTION 6.01. Representations, Warranties and Covenants. The
representations and warranties of each other party contained in this Agreement
shall have been true and correct when made and shall be true and correct as of
the Closing, with the same force and effect as if made on the date of the
Closing, and all covenants and agreements contained in this Agreement to be
complied with on or prior to Closing shall have been complied with in all
material respects.
SECTION 6.02. No Prohibition. None of the transactions contemplated
hereby shall have been prohibited by any applicable law, court order or
governmental regulation.
SECTION 6.03. HSR Act. Any waiting period (and any extension
thereof) under the HSR Act applicable to the transactions contemplated hereby
shall have expired or shall have been terminated.
ARTICLE VII
AFFIRMATIVE COVENANTS
SECTION 7.01. Preservation of Existence. Issuer shall use its
reasonable commercial efforts to:
(a) preserve and maintain in full force and effect its existence and
good standing under the laws of the State of Delaware;
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(b) preserve and maintain in full force and effect all material
rights, privileges, qualifications, applications, licenses and franchises
necessary in the normal conduct of its business;
(c) preserve its business organization; and
(d) file or cause to be filed in a timely manner all reports,
applications, estimates and licenses that shall be required by any
governmental authority and that, if not timely filed, would have a
material adverse effect on Issuer's financial condition or results of
operation.
SECTION 7.02. Financial Statements and Other Information. Issuer
shall deliver to Grantee, in form and substance satisfactory to Grantee:
(a) as soon as available, but not later than ninety (90) days after
the end of each fiscal year of Issuer, a copy of the audited balance sheet
of Issuer as of the end of such fiscal year and the related statements of
operations and cash flows for such fiscal year, setting forth in each case
in comparative form the figures for the previous year, all in reasonable
detail and accompanied by a management summary and analysis of the
operations of Issuer for such fiscal year accompanied by the report of a
nationally recognized independent certified public accounting firm, which
report shall state that such financial statements present fairly, in all
material respects, the financial condition as of such date and results of
operations and cash flows for the period indicated in conformity with GAAP
applied on a consistent basis; and
(b) commencing with the fiscal period ending on March 31, 2000, as
soon as available, but in any event not later than forty-five (45) days
after the end of each of the first three fiscal quarters of each fiscal
year, the unaudited balance sheet of Issuer, and the related statements of
operations and cash flows for such quarter and for the period commencing
on the first day of the fiscal year and ending on the last day of such
quarter, all certified by an appropriate officer of Issuer as presenting
fairly the financial condition as of such date and results of operations
and cash flows for the periods indicated in conformity with GAAP applied
on a consistent basis, subject to normal year-end adjustments, the absence
of a management's discussion and analysis of financial condition section
and the absence of footnotes required by GAAP.
SECTION 7.03. Annual Budget. Not less than thirty (30) days prior to
the end of each fiscal year, or at such later date as may be determined by
Issuer's Board of Directors, Issuer shall prepare and submit to its Board of
Directors for its approval an operating budget of Issuer for the next fiscal
year.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
SECTION 8.02. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 8.02):
(a) if to Issuer:
Priceline WebHouse Club, Inc.
One High Ridge Park
Stamford, CT 06905
Telecopy No.: (203) 595-8305
Attention: Anne Maffei, Vice President -- Corporate Finance
(b) if to Grantee:
priceline.com Incorporated
Five High Ridge Park
Stamford, CT 06905
Telecopy No.: (203) 595-8345
Attention: Melissa Taub, General Counsel
SECTION 8.03. Public Announcements. Except as required by law,
governmental regulation or by the requirements of any securities exchange on
which the securities of a party hereto are listed, no party to this Agreement
shall make, or cause to be made, any press release or public announcement in
respect of this Agreement or otherwise communicate with any news media without
the prior written consent of the other party, and the parties shall cooperate as
to the timing and contents of any such press release or public announcement.
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SECTION 8.04. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 8.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 8.06. Entire Agreement. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
with respect to the subject matter hereof.
SECTION 8.07. Assignment. This Agreement shall not be assigned
without the express written consent of the parties hereto (which consent may be
granted or withheld in the sole discretion of any party) except that Grantee may
assign its rights hereunder to a Subsidiary thereof; provided that any such
assignment shall not relieve the assigning party of its obligations hereunder.
This Agreement shall inure to the benefit of, and be binding upon, the
successors of the parties hereto and the assignees of the parties hereto,
provided such assignment was in compliance with the terms hereof.
SECTION 8.08. No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 8.09. Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each of
the parties hereto.
SECTION 8.10. Governing Law. This Agreement shall be governed by the
laws of the State of New York. All actions and proceedings arising out of or
relating to this Agreement may be heard and determined in any New York State or
federal court sitting in the City of New York, County of New York, and the
parties hereto hereby irrevocably submit to the nonexclusive jurisdiction of
such courts in any such action or proceeding and irrevocably waive any defense
of an inconvenient forum to the maintenance of any such action or proceeding.
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SECTION 8.11. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section 8.11; provided that receipt of copies of such counterparts is confirmed.
SECTION 8.12. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
SECTION 8.13. Waiver of Jury Trial. Each of the parties hereto
irrevocably and unconditionally waives trial by jury in any legal action or
proceeding relating to this Agreement or the transactions contemplated hereby
and for any counterclaim therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
PRICELINE.COM INCORPORATED
By: ___________________________________
Name:
Title:
PRICELINE WEBHOUSE CLUB, INC.
By: ___________________________________
Name:
Title:
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