EXHIBIT 10.22.1
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF
THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE SECURITIES REPRESENTED BY THIS WARRANT AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND APPLICABLE
STATE SECURITIES LAWS UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED TO EFFECTUATE
SUCH TRANSACTION.
PARTICIPATION WARRANT AGREEMENT
To Purchase Shares of Common Stock
Dated as of December 31, 1998
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
a Delaware Corporation
Issue Date: December 31, 1998
THIS CERTIFIES THAT, [**] (the "Warrant Holder"), with a place of
business at [**], for value received, is entitled, upon the terms and subject to
the conditions of this Participation Warrant Agreement (this "Warrant
Agreement"), to subscribe for and purchase fully-paid and non-assessable shares
of common stock, par value $.01 per share (the "Common Stock"), of ▇▇▇▇▇▇▇▇▇.▇▇▇
Incorporated, a Delaware corporation (the "Company").
1. ISSUANCE OF WARRANTS. On the Issue Date, the Company will issue to
the Warrant Holder warrants (the "Warrants") to acquire ONE MILLION (1,000,000)
shares of the Common Stock (the "Shares").
2. EXERCISE PRICE. The Warrants have an exercise price of $8.00 per share
of Common Stock, as adjusted pursuant to the provisions of Section 8 of this
Warrant Agreement (the "Exercise Price").
3. TERM. Except as otherwise provided for herein, the term of the Warrants
and the right to purchase Shares as granted herein shall vest in the following
manner: (i) Warrants for 500,000 Shares will vest on December 31, 1999 ("first
traunch"), and (ii) Warrants for 500,000 Shares will vest on December 31, 2000
("second traunch"). Vested shares may be exercised at any time and from time to
time up to 5:00 p.m. New York City local time on the fourth anniversary of the
Issue Date (the "Expiration Date"), provided the Company has, prior to any such
exercise, completed an initial public offering of shares of Common Stock
pursuant to an effective Registration Statement under the Securities Act of
1933, as amended (an "IPO"); provided, however, that if the Company has not
completed an IPO within thirty (30) days prior to such Expiration Date, then the
term of the Warrants
[**] = Confidential treatment requested for redacted portion.
and the exercise thereof shall be extended for a period of six (6) months from
the completion date of the IPO.
4. EXERCISE OF PURCHASE RIGHTS.
(a) EXERCISE. Subject to the terms of this Warrant Agreement, the
purchase rights represented by this Warrant Agreement are exercisable by the
Warrant Holder, in whole or in part, at any time, or from time to time during
the period set forth in Section 3 above, by tendering to the Company at its
principal office: a duly completed and executed notice of exercise in the form
attached hereto as Exhibit A (the "Notice of Exercise"), the Warrants and the
Exercise Price. Upon receipt of such items in accordance with the terms set
forth below, the Company shall issue to the Warrant Holder a certificate for the
number of shares of Common Stock purchased. The Warrant Holder, upon exercise of
the Warrants, shall be deemed to have become the holder of the Shares
represented thereby (and such Shares shall be deemed to have been issued)
immediately prior to the close of business on the date or dates upon which the
Warrants are exercised. In the event of any exercise of the rights represented
by the Warrants, certificates for the Shares so purchased shall be delivered to
the Warrant Holder or its designee as soon as practical and in any event within
ten (10) business days after receipt of such notice and, unless the Warrants
have been fully exercised or expired, new Warrants representing the remaining
portion of the Warrants and the underlying Shares, if any, with respect to which
this Warrant Agreement shall not then have been exercised shall also be issued
to the Warrant Holder as soon as possible and in any event within such ten-day
period.
(b) METHOD OF EXERCISE. The purchase rights hereby represented may
be exercised, at the election of the Warrant Holder, by the tender of the Notice
of Exercise and the surrender of the Warrants at the principal office of the
Company and by the payment to the Company, by check, cancellation of
indebtedness or other form of payment acceptable to the Company, of an amount
equal to the then applicable Exercise Price per share multiplied by the number
of Shares then being purchased.
(c) WARRANT HOLDER[**]
[**] = Confidential treatment requested for redacted portion.
2
(d) NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Common Stock is
greater than the Exercise Price (at the date of calculation as set forth below),
in lieu of exercising the Warrants for cash, the Warrant Holder may elect to
receive shares equal to the value (as determined below) of the Warrants (or
portion thereof being canceled) by surrender of the Warrants at the principal
office of the Company together with the duly executed Notice of Exercise in
which event the Company shall issue to the Warrant Holder a number of shares of
the Common Stock computed using the following formula:
X= Y(A-B)
------
A
WHERE X= the number of shares of Common Stock to be issued to the
Warrant Holder;
Y= the number of shares of the Common Stock purchasable under the
warrants or, if only a portion of the Warrants is being exercised,
the portion of the Warrants being canceled (at the date of such
calculation);
A= the fair market value of one share of the Company's Common Stock
(at the date of such calculation); and
B= Exercise Price (at the date of such calculation).
For purposes of the above calculation, fair market value of one share of the
Common Stock shall be equal to the closing trading price of the Company's Common
Stock on the day immediately prior to the date the Notice of Exercise is
tendered to the Company.
5. RESERVATION OF SHARES. The Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of the rights to purchase the Shares as provided in this Warrant
Agreement. All of the Shares shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and non-assessable, and free and
clear of all preemptive rights.
[**] = Confidential treatment requested for redacted portion.
3
6. NO FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of the Warrant Holder's
rights to purchase the Shares.
7. NO RIGHTS AS SHAREHOLDER. This Warrant Agreement does not entitle the
Warrant Holder to any voting rights or other rights as a shareholder of the
Company prior to the exercise of the Warrant Holder's rights to purchase the
Shares as provided for herein.
8. ADJUSTMENT RIGHTS. The Exercise Price and the number of shares of
Common Stock purchasable hereunder are subject to adjustment from time to time,
as follows:
(a) MERGER. If at any time there shall be a merger or consolidation
of the Company with or into another corporation when the Company is not the
surviving corporation, then, as part of such merger or consolidation, lawful
provision shall be made so that the holder of the Warrants evidenced hereby
shall thereafter be entitled to receive upon exercise of rights herein granted,
during the period specified herein and upon payment of the aggregate Exercise
Price, the number of shares of stock or other securities or property of the
successor corporation resulting from such merger or consolidation, to which a
holder of the stock deliverable upon exercise of the rights granted in this
Warrant Agreement would have been entitled in such merger or consolidation if
such rights had been exercised immediately before such merger or consolidation.
In any such case, appropriate adjustment shall be made in the application of the
provisions of this Warrant Agreement with respect to the rights and interests of
the holder after the merger or consolidation. The Company will not effect any
such merger or consolidation unless, prior to the consummation thereof, the
successor corporation shall assume, by written instrument reasonably
satisfactory in form and substance to the Warrant Holder, the obligations of the
Company under the Warrants.
(b) RECLASSIFICATION, ETC. If the Company at any time shall, by
subdivision, combination or reclassification of securities or otherwise, change
any of the securities as to which purchase rights under this Warrant Agreement
exist into the same or a different number of securities of any other class or
classes, this Warrant Agreement shall thereafter represent the right to acquire
such number and kind of securities as would have been issuable as the result of
such change with respect to the securities which were subject to the purchase
rights under this Warrant Agreement immediately prior to such subdivision,
combination, reclassification or other change.
(c) SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the Company at
any time shall split or subdivide its Common Stock, the Exercise Price shall be
proportionately decreased and the number of Shares issuable pursuant to this
Warrant Agreement shall be proportionately increased. If the Company at any time
shall combine or reverse split its Common Stock, the Exercise Price shall be
proportionately increased and the number of Shares issuable pursuant to this
Warrant Agreement shall be proportionately decreased.
(d) STOCK DIVIDENDS. If the Company at any time shall pay a dividend
payable in Common Stock, then the Exercise Price shall be adjusted, from and
after the date of determination of stockholders entitled to receive such
dividend, to that price determined by multiplying the Exercise Price in effect
immediately prior to such date of determination by a fraction (i) the numerator
of which shall be the total number of shares of Common Stock outstanding
immediately prior to such
[**] = Confidential treatment requested for redacted portion.
4
dividend and (ii) the denominator of which shall be the total number of shares
of Common Stock outstanding immediately after such dividend. The Warrant Holder
shall thereafter be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of shares of Common Stock (calculated to the nearest
whole share) obtained by multiplying (i) the Exercise Price in effect
immediately prior to such adjustment by (ii) the number of shares of Common
Stock issuable upon the exercise hereof immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment.
(e) ISSUE OF ADDITIONAL STOCK. For so long as the term of the
Warrants have not expired, upon each issuance or sale (or deemed issuance or
sale) by the Company of any additional shares of Common Stock (or securities
convertible or exercisable into Common Stock) which results or would have
resulted in a reduction in the Conversion Price of the Convertible Preferred (as
each such term is defined in the Company's Certificate of the Powers,
Designations, Preferences and Rights of the Series A Convertible Preferred Stock
(the "Certificate of Designation")) under Section 7(d)(ii) of the Company's
Certificate of Designation, then the Exercise Price in effect immediately prior
to each such issuance or sale shall, upon such issue or sale, be reduced by a
percentage equal to the same percentage that the applicable Conversion Price has
been reduced (or would have been reduced) as a result of such issuance or sale.
(f) OTHER CHANGES. If any change in the outstanding Common Stock of
the Company or any other event occurs as to which the other provisions of this
Section 8 are not strictly applicable or if strictly applicable, would not
fairly protect the purchase rights of the Warrant Holder in accordance with such
provisions, then the Board of Directors of the Company shall make an adjustment
in the number of and class of shares available under the Warrants, the Exercise
Price or the application of such provisions, so as to protect such purchase
rights as aforesaid. The adjustment shall be such as will give the Warrant
Holder upon exercise for the same aggregate Exercise Price the total number,
class and kind of shares as the Warrant Holder would have owned had the Warrants
been exercised prior to the event and had the Warrant Holder continued to hold
such shares until after the event requiring adjustment.
(g) NOTICE OF ADJUSTMENTS; NOTICES. Whenever the Exercise Price or
number of shares purchasable hereunder shall be adjusted pursuant to Section 4
hereof, the Company shall issue a certificate signed by its Chief Executive
Officer or Chief Financial Officer setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated and the Exercise Price and number of shares
purchasable hereunder after giving effect to such adjustment, and shall cause a
copy of such certificate to be mailed (by first class mail, postage prepaid) to
the holder of this Warrant. The Company shall give written notice to the Warrant
Holder at least 10 days prior to the date on which the Company closes its books
or takes a record for determining rights to receive any dividends or
distributions. The Company shall also give written notice to the Warrant Holder
at least 30 business days prior to the date on which a merger or consolidation
of the Company with or into another corporation when the Company is not the
surviving corporation shall take place.
(h) NO CHANGE OF WARRANT NECESSARY. Irrespective of any adjustment
in the Exercise Price or in the number or kind of securities issuable upon
exercise of the Warrant, unless the
[**] = Confidential treatment requested for redacted portion.
5
Warrant Holder otherwise requests, this Warrant Agreement may continue to
express the same price and number and kind of shares of Common Stock as are
stated in this Warrant Agreement as initially executed.
9. TERMINATION AND DAMAGES.
(a) MATERIAL BREACH.
(i) In the event that the Warrant Holder is in breach of its
material obligations under this Warrant Agreement, and such breach is not cured
to the reasonable satisfaction of the Company within 30 days after delivering
notice of such breach to the Warrant Holder, the Company may terminate this
Warrant Agreement immediately and without further notice to the Warrant Holder.
Concurrent with any such termination by the Company, this Warrant Agreement, and
all unexercised Warrants issued hereunder, shall automatically terminate, be
canceled and of no further force and effect. In addition, upon any such
termination by the Company, the Warrant Holder shall pay the Company, as
liquidated damages for Warrant Holder's material breach of this Warrant
Agreement and not as a penalty, the sum of 1) $1,000,000, if such termination is
effected before December 31, 1999, or (2) $500,000, if such termination is
effected on or after December 31, 1999 and before December 31, 2000. Any such
payment shall be made in immediately available funds within thirty days from the
date of any termination of this Warrant Agreement by the Company permitted by
this Section 9(a).
(ii) In the event that the Company is in breach of its
material obligations under Section 4(c) of this Warrant Agreement, and such
breach is not cured to the reasonable satisfaction of the Warrant Holder within
thirty (30) days after delivering notice of such breach to the Company, the
Warrant Holder may thereupon terminate the parties rights and obligations under
Section 4(c) hereof; provided, that if the Company repeats a material breach
after notice and the Company's cure thereof, the cure period for such repeated
breach shall be five (5) days and provided further that upon the occurrence of
any second repeated breach, the Warrant Holder may immediately exercise its
termination rights hereunder. Upon any such termination, Warrant Holder shall
retain all of its rights under this Warrant Agreement with respect to its then
vested Warrants but all the then unvested warrants shall immediately terminate
and expire.
(b) TERMINATION WITHOUT BREACH BY FEBRUARY 4, 1999. Either party may
terminate this Warrant Agreement, without cause, at anytime by written notice to
the other party received on or prior to February 4, 1999. In the event this
Warrant Agreement is terminated as contemplated by this Section 9(b), this
Warrant Agreement, and all Warrants issued hereunder, shall automatically
terminate, be canceled and of no further force and effect, and neither the
Warrant Holder nor the Company shall have any further obligation under any term
or provision of this Warrant Agreement.
(c) TERMINATION WITHOUT BREACH AFTER FEBRUARY 4, 1999. Except as
otherwise provided in this Section 9(c), either party may terminate the parties'
rights and obligations under Section 4(c) hereof, without cause, at any time by
written notice to the other party; provided that (i) if Warrant Holder effects
such termination on or before December 31, 1999, all of the Warrants granted
[**] = Confidential treatment requested for redacted portion.
6
to Warrant Holder hereunder shall immediately terminate and expire and Warrant
Holder shall pay to the Company the liquidated damages prescribed in Section
9(a)(i)(1) hereof, and (ii) if Warrant Holder effects such termination after
December 31, 1999, but before December 31, 2000, the second traunch granted to
Warrant Holder shall immediately expire, and Warrant Holder shall pay to the
Company the liquidated damages prescribed in Section 9(a)(i)(2) hereof.
Notwithstanding any provision herein to contrary, Warrant Holder may not
exercise a termination under this Section 9(c) on or after December 31, 2000.
10. REDEMPTION. Except as contemplated by Section 9 above, the Warrants
represented by this Warrant Agreement are not redeemable by the Company.
11. COMPLIANCE WITH SECURITIES ACT; TRANSFERABILITY OF WARRANT OR SHARES
OF COMMON STOCK.
(a) COMPLIANCE WITH SECURITIES ACT. The Warrant Holder, by
acceptance hereof, agrees that the Warrants, and the shares of Common Stock to
be issued upon exercise of the Warrants, are being acquired for investment and
that such Warrant Holder will not offer, sell or otherwise dispose of the
Warrants, or any shares of Common Stock to be issued upon exercise of the
Warrants except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws. The Warrants and all shares of Common Stock issued upon
exercise of the Warrants (unless registered under) the Securities Act and any
applicable state securities laws) shall be stamped or imprinted with a legend in
substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THEY MAY NOT BE
SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS
OR UNLESS SUCH REGISTRATION IS NOT REQUIRED TO EFFECTUATE SUCH
TRANSACTION, AND IF REQUESTED BY THE COMPANY, THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL TO THAT EFFECT."
(b) TRANSFER. Subject to the provisions of the Securities Act and
any applicable state securities laws, the Warrants and any related rights
hereunder may be sold, transferred, pledged or otherwise disposed of
(collectively, "Sold"), in whole or in part, to any person. Any transfer or sale
or attempted transfer or sale of this Warrant in violation of any provision of
this Warrant shall be void, and the Company shall not record such transfer on
its books or treat any purported transferee of the Warrant as the owner of the
Warrant for any purpose.
[**] = Confidential treatment requested for redacted portion.
7
(c) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANTS. The Warrants
cannot be exchanged, transferred or assigned otherwise than in accordance with
the provisions of this Agreement. If the provisions of this Agreement are
complied with, upon surrender of the Warrants to the Company with the Assignment
Form annexed hereto as Exhibit B duly executed, and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
Warrant Agreement in the name of the heir, devisee or assignee named in such
instrument of assignment and this Warrant Agreement shall promptly be canceled.
12. RESTRICTED SECURITIES. The Warrant Holder understands that the
Warrants and the Shares issuable upon vesting and exercise of the Warrants, will
not be registered at the time of their issuance under the Securities Act for the
reason that the sale provided for in this Agreement is exempt pursuant to
Section 4(2) of the Securities Act based on the representations of the warrant
Holder set forth herein. The Warrant Holder represents that it is experienced in
evaluating companies such as the Company, has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment and has the ability to suffer the total loss of the
investment. The Warrant Holder further represents that it has had the
opportunity to ask questions of and receive answers from the Company concerning
the terms and conditions of the Warrants, the business of the Company, and to
obtain additional information to such Warrant Holder's satisfaction. The Warrant
Holder is an "Accredited Investor" within the meaning of Rule 501 of Regulation
D under the Securities Act, as presently in effect.
13. REGISTRATION RIGHTS. The Company will use its best efforts to cause
the Warrant Holder to become a party to that certain Amended Registration Rights
Agreement, dated as of December 8, 1998, by and among the Company and the
stockholders of the Company named therein, on such terms and conditions as may
be reasonably acceptable to the Company, the Warrant Holder and the other
stockholders a party to such Amended Registration Rights Agreement. In the event
of the Company fails to have the Warrant Holder become a party to the Amended
Registration Rights Agreement on terms and conditions reasonably acceptable to
Warrant Holder by February 4, 1999, the Warrant Holder shall have the right to
terminate this Warrant Agreement by delivering a written notice to the Company
as prescribed in Section 9(b) hereof.
14. MISCELLANEOUS.
(a) NO CONSEQUENTIAL DAMAGES. No party hereto shall be entitled to
consequential damages as a result of any breach of a covenant, representation
or warranty contained herein.
(b) NOTICES. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
(i) if to the Company, to:
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
Five ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[**] = Confidential treatment requested for redacted portion.
8
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
and to:
Skadden, Arps, Slate, Meagher, & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Chuff, Esq.
(ii) if to the Warrant Holder, to:
[**]
[**]
[**]
Phone: [**]
Telecopy: [**]
Attention: [**]
and Copy to:
[**]
[**]
[**]
[**]
Telecopy: [**]
Attention: [**]
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied.
(b) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of the parties hereto. No
person, other than the parties hereto and their successors and
permitted assigns, is intended to be a beneficiary of this
Agreement.
(c) AMENDMENT AND WAIVER.
(i) No failure or delay on the part of the Company, or the
Warrant Holder in exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise
[**] = Confidential treatment requested for redacted portion.
9
thereof or the exercise of any other right, power or remedy. The remedies
provided for herein are cumulative and are not exclusive of any remedies that
may be available to the Company and the Warrant Holder at law, in equity or
otherwise.
(ii) Any amendment, supplement or modification of or to any
provision of this Warrant Agreement, any waiver of any provision of this Warrant
Agreement, and any consent to any departure by the Company or the Warrant Holder
from the terms of any provision of this Agreement, shall be effective only if it
is made or given in writing and signed by the Company and the Warrant Holder.
(d) COUNTERPARTS. This Warrant Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Warrant Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
(g) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
(h) ENTIRE AGREEMENT. This Warrant Agreement, together with the
exhibits and schedules hereto and the current Airline Participation Agreement
among the Company, the Warrant Holder and PriceLine Travel, Inc., (as amended,
substituted, supplemented or superseded by oral agreement of the parties anytime
after the date hereof), is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Warrant Agreement, together with the exhibits and
schedules hereto and the current Airline Participation Agreement among the
Company, the Warrant Holder and PriceLine Travel, Inc., (as amended,
substituted, supplemented or superceded by oral agreement of the parties anytime
after the date hereof), supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(i) PUBLICITY. Except as may be required by law, none of the parties
hereto shall issue a publicity release or public announcement or otherwise make
any disclosure concerning this Warrant Agreement or the transactions
contemplated hereby, without prior approval by the other party (which approval
shall not be unreasonably withheld); provided, however, that nothing in this
[**] = Confidential treatment requested for redacted portion.
10
Warrant Agreement shall restrict the Warrant Holder from disclosing information
(a) that is already publicly available and (b) to its attorneys, accountants,
consultants and other advisors to the extent necessary to obtain their services
in connection with the Warrant Holder's investment or participation in the
Company. If any announcement is required by law to be made by any party hereto
concerning this Warrant Agreement or the transactions contemplated hereby, prior
to making such announcement such party will deliver a draft of such announcement
to the other parties and shall give the other parties an opportunity to comment
thereon.
(j) CHARGES; TAXES AND EXPENSES. Issuance of certificates for shares
upon the exercise of the Warrants shall be made without charge to the Warrant
Holder for any issue or transfer tax or other incidental expense in respect of
the issuance of such certificates, all of which taxes and expenses shall be paid
by the Company.
(k) SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day
for the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a Saturday,
Sunday or a legal holiday.
(l) LOST WARRANTS. The Company covenants to the Warrant Holder that,
upon receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant Agreement and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation, upon
surrender and cancellation of this Warrant Agreement, the Company will make and
deliver a new Warrant Agreement of like tenor, in lieu of the lost, stolen,
destroyed or mutilated document.
(m) FURTHER ASSURANCES. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental authority
or any other person, and otherwise fulfilling, or causing the fulfillment of,
the various obligations made herein, as may be reasonably required or desirable
to carry out or to perform the provisions of this Warrant Agreement and to
consummate and make effective as promptly as possible the transactions
contemplated by this Agreement.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed and delivered
by the authorized officers of each of the undersigned.
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[**] = Confidential treatment requested for redacted portion.
11
[**]
By: [**]
-------------------------------------------
Name: [**]
--------------------------------------
Title: [**]
-------------------------------------
[**] = Confidential treatment requested for redacted portion.
12
EXHIBIT A
NOTICE OF EXERCISE
To: ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
1. The undersigned hereby elects to purchase __________ shares of
the Common Stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated pursuant to the terms of the
Warrant Participation Agreement, dated as of December 31, 1998, by and between
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated and the undersigned, and tenders herewith payment of
the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned.
[**]
By:
-----------------------------------
-----------------------------------
(Print Name of Signatory)
-----------------------------------
(Title of Signatory)
Date:
----------------------
[**] = Confidential treatment requested for redacted portion.
13
EXHIBIT B
ASSIGNMENT FORM
TO: ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
The undersigned hereby assigns and transfers unto _____________________________
of ___________________________________________________________________
(Please typewrite or print in block letters)
the right to purchase ____________ shares of the common stock of ▇▇▇▇▇▇▇▇▇.▇▇▇
Incorporated subject to the Warrant Participation Agreement, dated as of
December 31, 1998, by and between ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated and the undersigned
(the "Warrant Agreement").
This assignment complies with the provisions of Section 11(c) of the Warrant
Agreement and is accompanied by funds sufficient to pay all applicable transfer
taxes.
[**]
By:
-----------------------------------
-----------------------------------
(Print Name of Signatory)
-----------------------------------
(Title of Signatory)
Date:
----------------------
[**] = Confidential treatment requested for redacted portion.
14
SCHEDULE 4 C
[**]
[**] = Confidential treatment requested for redacted portion.
15
SCHEDULE 4 (D)
[**]
[**] = Confidential treatment requested for redacted portion.
16