Exhibit 10.6
December 5, 2005
priceline.com Incorporated
800 Connecticut Avenue
Norwalk, CT 06854
Attention: Robert J. Mylod
Gentlemen:
This letter (the “Warrant
Repurchase Agreement”) sets forth the terms of
our agreement with respect to your repurchase
from us of the warrants (the “Warrants”) to purchase
shares of common stock of priceline.com Incorporated, a Delaware
corporation (the “Company”), issued to Marriott
International, Inc., a Delaware corporation (“MII”),
pursuant to the Warrant Agreement dated as of March 17, 2003,
between the Company and MII, as amended pursuant to the Certificate
as to Warrant Adjustments dated as of June 20, 2003 (collectively,
the “Warrant Agreement”). Following the triggering of
certain adjustment provisions, the Warrants relate to the right to
purchase up to 833,333 shares of the Company’s common stock
at an Exercise Price of $9.84 per share. Capitalized terms
used but not defined herein shall have the meanings assigned
thereto in the Warrant Agreement.
1.
Repurchase of the Warrant;
Consideration . On the terms and subject to the
conditions set forth herein, MII hereby agrees to the repurchase by
the Company, without replacement, of the Warrants, effective as of
the Closing, as defined below. In consideration of such
repurchase, the Company agrees to pay an amount to MII at the
Closing in cash determined by multiplying (a) 833,333 by (b) the
difference between (i) the current fair market value of one share
of Common Stock determined in accordance with the Warrant Agreement
on the trading day immediately prior to the Closing Date and (ii)
the Exercise Price (the “Closing
Consideration”).
2.
Closing . The closing of the
transactions contemplated by this letter
agreement shall take place at the offices of the Company at
10:00 a.m. Eastern Standard Time on Monday, December 5,
2005, or at such other place and time as the parties may
hereafter agree in writing (the “Closing”).
At the Closing,
(a) MII shall redeliver
original copies of the Warrant Agreement and the Certificate, free
and clear of any claims or Encumbrances, to the Company for
cancellation;
(b) The Company shall transmit
the Closing Consideration to MII by wire transfer of immediately
available funds to such account as MII shall have designated not
less than 48 hours prior to the Closing; and
(c) the Warrant Agreement
shall be terminated and have no further force or effect.
3.
Covenants .
(a)
The Company covenants and agrees that it shall not enter into any
agreement providing for a transaction that would result in a Change
of Control (as defined below) without making express provision for
the Acquiror (as defined below) to cause the Company to fully and
timely discharge its obligations hereunder, or for the
Acquiror to fully and timely discharge such obligations
directly upon any default with respect thereto by the
Company. The Company shall make MII a designated third-party
beneficiary of the foregoing undertaking by any
Acquiror.
(b)
The term “Change of Control” shall mean (A) any
acquisition by any person (including any individual or any
corporation, partnership or other entity) or group of persons
acting in concert (individually or collectively, an
“Acquiror”) of shares of common stock or other
securities of the Company representing in the aggregate the
right to cast a majority of votes for the election of the board of
directors or other governing body of the Company; or (B) any
acquisition by an Acquiror of assets of the Company constituting
more than 50% in fair market value of the total assets of the
Company; or (C) any merger, consolidation,
recapitalization, joint venture or other
transaction pursuant to which any Acquiror acquires, directly
or indirectly, the right to cast a majority of votes for the
election of the board of directors or other governing body of the
Company.
4.
Other Continuing Relationships . Neither anything
herein nor the consummation of the transactions contemplated hereby
shall affect in any manner any existing agreements or any
other business relationships between the Company or its affiliates
and MII or its affiliates including, without limitation, the
Amended and Restated Preferred Hotel Provider Agreement by and
between the Company and MII dated as of March 14, 2003, as the same
may be amended or restated (the “Preferred
Agreement”).
5.
Representations And Warranties of the Company .
Each of MII and the Company hereby
represents and warrants to the other as follows:
(a)
Existence and Power . It (i) is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and (ii) has the corporate
power and authority to execute, deliver and perform its obligations
under this Warrant Repurchase Agreement.
(b)
Authorization; No Contravention . The execution,
delivery and performance by it of this Warrant Repurchase Agreement
and the transactions contemplated hereby (i) have been duly
authorized by all necessary corporate action and (ii) do no
contravene
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