PURCHASE
AND
INTERCOMPANY SERVICES AGREEMENT
THIS PURCHASE AND INTERCOMPANY SERVICES AGREEMENT (this "AGREEMENT"),
by and among WALKER ASSET MANAGEMENT LIMITED PARTNERSHIP, a Connecticut limited
partnership ("WAMP"), WALKER DIGITAL CORPORATION, a Delaware corporation
("WALKER DIGITAL" and, together with WAMP, collectively, the "WALKER PARTIES"),
PRICELINE.COM LLC, a Delaware limited liability company ("PRICELINE.COM"), and
PRICELINE TRAVEL, INC., a Delaware corporation ("PRICELINE TRAVEL" and, together
with priceline.com, collectively the "PRICELINE PARTIES"). This Agreement shall
be effective as of the 6th day of April, 1998 (the "EFFECTIVE DATE") unless
another date is expressly stated.
WHEREAS, WAMP, Walker Digital, priceline.com and PriceLine Travel are
affiliated business entities; and
WHEREAS, Walker Digital has previously invested $500,000 in
priceline.com (the "INVESTMENT") in exchange for the issuance of common equity
interests in priceline.com that have not yet been issued by priceline.com; and
WHEREAS, subject to the terms and conditions set forth in this
Agreement, WAMP desires to (i) transfer, convey, sell and assign to
priceline.com all of its right, title and interest in and to the patents and
patent applications listed on SCHEDULE A annexed hereto and made a part hereof,
which patents were developed by WAMP for Buyer-Driven Commerce (as defined
below) applications, products and services (collectively, the "PATENTS"), (ii)
transfer, convey, sell and assign to priceline.com the trademarks and
servicemarks and all related applications (including intent to use applications)
listed on SCHEDULE B annexed hereto and made a part hereof, owned by WAMP and
used or intended for use in connection with the commercial exploitation of the
Buyer-Driven Commerce applications, products and services of WAMP (the
"TRADEMARKS"); and (iii) transfer, convey, sell and assign to priceline.com all
of its right, title and interest in and to the other assets and intellectual
property of WAMP's existing Buyer-Driven Commerce applications, products and
services (the "OTHER WAMP ASSETS"); and
WHEREAS, subject to the terms and conditions set forth in this
Agreement, Walker Digital desires to sublease to the PriceLine Parties certain
of the real estate leased by Walker Digital at Five High Ridge Road, Stamford,
Connecticut 06905 (the "INTERCOMPANY LEASE"); and
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WHEREAS, subject to the terms and conditions set forth in this
Agreement, Walker Digital desires to provide certain intercompany services to
the PriceLine Parties as further described in this Agreement (the "INTERCOMPANY
SERVICES"); and
WHEREAS, subject to the terms and conditions set forth in this
Agreement, priceline.com desires to issue common equity interests in
priceline.com to Walker Digital in connection with the Investment, and purchase
and acquire the Patents, the Trademarks and the Other WAMP Assets, and the
PriceLine Parties desire to accept and receive the Intercompany Lease and the
Intercompany Services.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Defined terms used in this Agreement but not defined elsewhere in this
Agreement shall have the meanings set forth below:
1.1 "BUYER-DRIVEN COMMERCE" shall mean any commerce system or process
that permits a prospective buyer to fix the terms and conditions, including
price, on which he or she is willing to purchase a particular product or
service, with such offer being guaranteed or otherwise secured by the buyer
should a seller of the product or service accept the terms of the buyer's offer.
1.2 "INTELLECTUAL PROPERTY" shall mean the Patents and the
Trademarks, together with all knowledge, know how, trade secrets, copyrights and
all other intellectual property of WAMP for use with or otherwise relating to
Buyer-Driven Commerce applications, products and services, and all goodwill
associated with all of the foregoing.
1.3 "PERSON" shall mean any natural person, corporation, partnership,
association, sole proprietorship, trust, joint venture, limited liability
company, general partnership, limited partnership, trust association or other
business entity.
1.4"SUCCESSOR" or "SUCCESSORS" shall mean any Person who succeeds to
the business of priceline.com LLC whether by merger, conversion of equity
securities,
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acquisition of equity interests, operation of law, acquisition of all or
substantially all of priceline.com's assets, assignment or otherwise.
ARTICLE II
PURCHASE AND SALE
2.1 TRANSFER OF BUYER-DRIVEN COMMERCE ASSETS. In exchange for the
consideration to be provided to Walker Digital as set forth in Article III of
this Agreement, WAMP does hereby convey, sell, assign and transfer all of its
right, title and interest in and to the following:
(a) The Patents, including all worldwide applications and
registrations therefor, and all rights to recover for any prior infringements of
the Patents;
(b) The Trademarks, including all goodwill associated therewith,
all worldwide applications and registrations therefor, and all rights to recover
for any prior infringements of the Trademarks; and
(c) All other Intellectual Property (other than the Patents and
the Trademarks) owned, used or held for use by WAMP on or prior to the Effective
Date.
2.2 REPRESENTATIONS AND WARRANTIES OF THE WALKER PARTIES. The Walker
Parties hereby represent and warrant to priceline.com as follows:
(a) All right, title and interest in and to the Intellectual
Property is owned by WAMP, free and clear of all liens, security interests,
license grants, mortgages or other encumbrances of any nature whatsoever;
(b) The Intellectual Property represents the existing
Buyer-Driven Commerce applications, products and services of WAMP; and
(c) To the knowledge of the Walker Parties, no registration in
respect of the Intellectual Property, or application to register the
Intellectual Property, has lapsed, expired, been abandoned or been canceled.
The Walker Parties shall, jointly and severally, indemnify priceline.com and its
Successors and hold such Persons harmless from and against any and all claims,
actions, suits,
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proceedings, liabilities, damages, legal fees (including the costs of defense)
or any other liabilities or obligations arising from or relating to a breach of
any of the above representations and warranties.
2.3 RIGHT TO PURCHASE. In addition to the Intellectual Property
conveyed to priceline.com pursuant to Section 2.1 above, the Walker Parties
hereby grant to priceline.com and its Successors the right to purchase any
inventions, patents and other intellectual property owned by one or both of the
Walker Parties and acquired, developed or discovered by one or both of the
Walker Parties any time after the Effective Date (the "ADDITIONAL INTELLECTUAL
PROPERTY"), provided that the Additional Intellectual Property is in process or
has been fully developed and will provide significant value in the use or
commercial exploitation of the Buyer-Driven Commerce Intellectual Property sold
and assigned to priceline.com hereunder. Priceline.com and its Successors may
exercise its right to purchase such Additional Intellectual Property by written
notice to the Walker Parties. Any such purchase shall be at the fair market
value of the Additional Intellectual Property being sold, as determined in good
faith by the parties to the transaction. In the event that a Walker Party
elects to sell all or any portion of the Additional Intellectual Property to any
Person other than priceline.com or a Successor, the Walker Party shall provide
priceline.com or its Successor of notice of such intent and priceline.com or the
Successor shall have the right to purchase the same at fair market value as
described in this Section 2.3.
2.4 WAMP ASSIGNMENTS. Concurrently with the parties execution and
delivery of this Agreement, WAMP shall execute and deliver to priceline.com a
Patent Assignment and a Trademark Assignment, each in the forms annexed hereto
as EXHIBIT A and EXHIBIT B, respectively. In addition to the foregoing, WAMP
and Walker Digital (as applicable) shall, from and after the Effective Date and
upon the reasonable request of priceline.com or its Successors, execute and
deliver to priceline.com or such Successor, good and sufficient bills of sale,
assignment and other instruments of transfer, each in recordable form, to sell,
assign and transfer to and vest in priceline.com or such Successor good and
marketable title to the Intellectual Property and/or the Additional Intellectual
Property herein conveyed, sold, assigned and transferred, and all rights, title
and interests in and to such Intellectual Property and/or Additional
Intellectual Property, such instruments to be in a form and having such content
reasonably satisfactory to counsel to priceline.com or such Successor.
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ARTICLE III
CONSIDERATION
In consideration of the Investment and the rights, conveyances,
covenants, representations and warranties of the Walker Parties as set forth in
Article II of this Agreement and Walker Digital's Initial Investment,
priceline.com hereby agrees as follows:
(a) Effective as of January 1, 1998, priceline.com hereby agrees
to issue to Walker Digital 6,016,667 units of common equity interests of
priceline.com. In connection with the foregoing, Walker Digital hereby
ratifies, adopts, accepts and agrees to be bound by all of the terms and
conditions of the priceline.com Limited Liability Agreement effective as of July
18, 1997 as if Walker Digital was an actual signatory thereto.
(b) Simultaneously with the parties' execution and delivery of
this Agreement, priceline.com hereby grants to Walker Digital a perpetual,
non-exclusive, royalty free right and license to use, solely for non-commercial
uses (meaning any use for internal development and research purposes and without
any right of commercial exploitation), all or any portion of (i) the
Intellectual Property other than the Trademarks, and (ii) all know-how,
knowledge, copyrights, patents and other intellectual property (but excluding
any trademarks, servicemarks, tradenames, trade dress, insignias, logos or other
similar items), developed and owned by priceline.com from and after the
Effective Date and designed or intended for use in Buyer-Driven Commerce
applications, products or services. In the event that Walker Digital exceeds
the scope and purpose of the license granted under this subsection (e), such
license may be terminated by priceline.com or its Successors immediately by
providing notice of termination to the Walker Parties, and all rights granted
under this subsection (e) shall immediately revert to and be fully vested in
priceline.com or its Successor.
ARTICLE IV
INTERCOMPANY LEASE
4.1 LEASE OF SPACE. Commencing on and as of the Effective Date and
continuing on a month-to-month basis thereafter, Walker Digital shall sublease
to the PriceLine Parties all or a portion of the real estate leased by Walker
Digital at Five High Ridge Park, Stamford, Connecticut 06905 (the "WALKER LEASED
SPACE"). The portions of
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the Walker Leased Space subject to the Intercompany Lease may, depending on the
occupancy requirements of the PriceLine Parties, fluctuate from time to time
during the term of the Intercompany Lease. On not less than a quarterly basis
commencing with the calendar quarter beginning July 1, 1998, Walker Digital and
priceline.com shall determine in good faith the portion of the Walker Leased
Space then occupied by the PriceLine Parties (the "PRICELINE OCCUPIED SPACE")
for purposes of the payment obligations of the PriceLine Parties set forth in
section 4.2 below.
4.2 LEASE AND OTHER PAYMENTS. The monthly rent payable by the
PriceLine Parties under the Intercompany Lease shall be equal to Walker
Digital's monthly base rental payment for leasing the PriceLine Occupied Space
then occupied by the PriceLine Parties (as determined by Walker Digital and
priceline.com as required by Section 4.1 above). In addition to the foregoing,
the PriceLine Parties shall pay to Walker Digital, on a monthly basis after
invoice from Walker Digital (i) their proportionate share, based on the then
current PriceLine Occupied Space, of the monthly out-of-pocket cost to Walker
Digital for all utilities (other than telephone and telecom services), taxes and
maintenance, cleaning, security and repair fees paid by Walker Digital with
respect to the Walker Leased Space, (ii) their proportionate share, based on
usage, of the monthly out-of-pocket cost to Walker Digital for the provision of
third party telephone and telecom services to the PriceLine Parties, and (iii)
their proportionate share, based on the usage of the PriceLine Parties, of the
monthly out-of-pocket cost to Walker Digital for all capital equipment located
at or on the Walker Leased Space (such as photocopy and facsimile equipment and
leased appliances), PROVIDED, HOWEVER, that all telephones (including cellular
telephones), personal computers and printers used by the PriceLine Parties and
owned or leased by Walker Digital shall be paid for by the PriceLine Parties
based on the actual out-of-pocket cost to Walker Digital for the provision of
each such item to the PriceLine Parties.
4.3 LEASE TERM. The Intercompany Lease will continue on a
month-to-month basis until terminated by Walker Digital or a PriceLine Party on
at least ninety (90) days prior written to the other parties. A PriceLine Party
may freely assign its rights and obligations under the Intercompany Lease to any
affiliate or any Successor without the consent of Walker Digital.
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ARTICLE V
SUPPORT SERVICES
5.1 INTERCOMPANY SERVICES. For a period not to exceed three (3)
years from the Effective Date unless otherwise extended by Walker Digital and
priceline.com, Walker Digital shall provide to priceline.com, or to PriceLine
Travel at priceline.com's request, any legal, technical, consulting or other
services requested from time to time by priceline.com; PROVIDED, HOWEVER, that
Walker Digital personnel, at the time of such request, possess the requisite
experience and knowledge necessary to provide such Intercompany Services and
have reasonable time availability to provide such Intercompany Services within
the time requested. Any Intercompany Services provided by Walker Digital that
are legal in nature shall be at the direction of, and shall be supervised by,
the Chief Legal Officer of priceline.com.
5.2 INTERCOMPANY SERVICES FEE. Priceline.com shall pay for the
Intercompany Services on a per project or assignment basis. The fee shall be
commercially reasonable and shall be negotiated in good faith by priceline.com
and Walker Digital.
5.3 NO REQUIRED USE. Nothing herein shall prohibit priceline.com
from engaging any other person to provide legal, technical, consulting or other
services to priceline.com. Without limiting the generality of the foregoing,
nothing herein shall prohibit priceline.com from engaging any other Persons to
perform any or all services that make up the Intercompany Services without first
requesting Walker Digital to provide such services.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 WAIVER; MODIFICATION. No provision of this Agreement may be
amended, modified, waived or discharged unless such amendment, waiver,
modification or discharge is agreed to in writing and signed by each of the
parties hereto or a duly authorized representative thereto. No waiver by any
party hereto at any time of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
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6.2 INVALIDITY. If any provision of this Agreement shall be
determined by any court of competent jurisdiction to be unenforceable or invalid
to any extent, the remainder of this Agreement shall not be affected thereby,
and this Agreement shall be construed to the fullest extent possible as to give
effect to the intentions of the provision found unenforceable or invalid.
6.3 PARTIES IN INTEREST. This Agreement may not be assigned by a
Walker Party without the prior written consent of priceline.com (whether by a
sale of all or substantially all of its assets, a change in control or by
operation of law), which consent shall not be unreasonably withheld or delayed.
This Agreement shall be binding upon the parties hereto and all Successors.
6.4 EXPENSES. Except as otherwise specifically provided for herein,
each party hereto shall bear all expenses incurred by it in connection with this
Agreement including, without limitation, the charges of its counsel, accountants
and other experts.
6.5 NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be delivered to each party hereto by
hand or sent by reputable overnight courier, with receipt verified, or
registered or certified mail, return receipt requested, addressed as follows:
If to WAMP:
Walker Asset Management Limited Partnership
Four High Ridge Park
Stamford, CT 06905
Attention: President, Chief Operating Officer or Chief
Legal Officer of the General Partner
If to Walker Digital:
Walker Digital Corporation
Five High Ridge Park
Stamford, CT 06905
Attention: President, Chief Operating Officer or Chief
Legal Officer
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If to priceline.com:
Priceline.com LLC
Five High Ridge Park
Stamford, CT 06905
Attention: President, Chief Operating Officer or Chief
Legal Officer
If to PriceLine Travel:
PriceLine Travel, Inc.
Five High Ridge Park
Stamford, CT 06905
Attention: President, Chief Operating Officer or Chief
Legal Officer
or at such other address as either party may specify by notice to the other
party given as aforesaid. Such notices shall be deemed to be effective when the
same shall be deposited, postage prepaid, in the mail and/or when the same shall
have been delivered by hand or overnight courier, as the case may be. If any
action or notice is to be taken or given on or by a particular calendar day, and
such calendar day is not a business day, then such action or notice may be
deferred until, or may be taken or given on, the next business day.
6.6 GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of Connecticut without regard to its conflicts of law
principles.
6.7 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
6.8 HEADINGS. All headings contained in this Agreement are for
reference purposes only and shall not in any way effect the meaning or
interpretation of any provision or provisions of this Agreement.
6.9 INTEGRATION. This Agreement, and the documents to be delivered
in connection therewith, and the exhibits and schedules thereto, if any, set
forth the entire
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agreement of the parties hereto in respect of the subject matter contained
herein and supersede all prior and contemporaneous agreements, promises,
covenants, arrangements, understandings, communications, representations or
warranties, whether oral or written, by any party hereto; and any prior
agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled. No agreements or representations,
whether written, oral, express or implied, with respect to the subject matter
hereof have been made by either party that are not set forth expressly in this
Agreement and the other documents to be delivered in connection herewith and
therewith.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the ___ day of _____, 1998.
WALKER ASSET MANAGEMENT WALKER DIGITAL CORPORATION
LIMITED PARTNERSHIP
By: Walker Digital Corporation,
its sole General Partner
By:_________________________ By:________________________
Name: Name:
Title: Title:
PRICELINE.COM. LLC PRICELINE TRAVEL, INC.
By:________________________ By:________________________
Name: Name:
Title: Title:
SCHEDULE A
1. U.S. PATENTS
PATENT NO. TITLE
2. U.S. PATENT APPLICATIONS
SERIAL NO. TITLE
08/707,660 Method and Apparatus for a Cryptographically
Assisted Commercial Network System
Designed to Facilitate Buyer-Driven Conditional
Purchase Offers
08/889,319 Conditional Purchase Offer Management System
08/923,530 Conditional Purchase Offer Management System
for Event Tickets
08/943,266 System and Method for Aggregating Multiple Buyers
Utilizing Conditional Purchase Offers (CPOs)
08/923,317 Conditional Purchase Offer Management System
for Telephone Calls
08/923,683 Conditional Purchase Offer (CPO)
Management System for Packages
08/964,967 Conditional Purchase Offer (CPO)
Management System for Collectibles
08/923,524 Conditional Purchase Offer (CPO)
and Third-Party Input Management System
08/969,875 Conditional Purchase Offer (CPO)
Management System for Vehicle Leases
08/923,618 Conditional Purchase Offer
Management System for Cruises
2
08/943,483 System and Method for Facilitating Acceptance
of Conditional Purchase Offers (CPOs)
08/997,170 Conditional Purchase Offer Buyer Agency System
3. FOREIGN PATENTS AND PATENT APPLICATIONS
COUNTRY APPLN. NO. TITLE
WO US97/15492 Conditional Purchase Offer
Management System
SCHEDULE B
Service Marks Owned or Controlled by Walker Asset Management Limited Partnership
and Worldwide Applications to Register Therefor
Description of Mark Country Appl. No. Filing Date
PRICELINE (word) United States 75/218912 27-Dec-96
Canada 848845 24-Jun-97
Community Trademark 595850 25-Jun-97
Japan 132553 27-Jun-97
TRAVEL PRICELINE (word) United States 75/218913 27-Dec-96
PRICELINE.COM (word) United States 75/371458 10-Oct-97
Canada 871380 06-Mar-98
Community Trademark 794537 08-Apr-98
Japan 27911/98 02-Apr-98
SUPER LEISURE (word) United States 75/406667 17-Dec-97
Canada 875442 17-Apr-98
Community Trademark 817494 06-May-98
Japan 39499/98 12-May-98
EXHIBIT A
PATENT ASSIGNMENT
BY AND BETWEEN WALKER ASSET MANAGEMENT
LIMITED PARTNERSHIP AND PRICELINE.COM LLC
WHEREAS, Walker Asset Management Limited Partnership, hereinafter
"Assignor", a limited partnership organized and existing under the laws of the
State of Connecticut and having a principal office at Five High Ridge Park,
Stamford, Connecticut, 06905, is the owner of the entire right, title and
interest in and to certain patents and patent applications listed on SCHEDULE 1
annexed hereto (collectively referred to as the "Patents"); and
WHEREAS, priceline.com LLC, hereinafter "Assignee", a limited
liability company organized and existing under the laws of the State of Delaware
and having a principal office at Five High Ridge Park, Stamford, Connecticut,
06905, is desirous of acquiring all right, title, and interest in and to the
Patents.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Assignor hereby sells, assigns and
transfers to Assignee the entire right, title and interest in and to the Patents
throughout the world and the inventions and designs covered thereby, including
the right to claim priority and the right to any continuation, division, or
substitute application thereof and the right to any reissue, restoration,
extension or reexamination of any patent thereof, the same to be held and
enjoyed by Assignee for its own use and enjoyment, and for the use and enjoyment
of its successors, assigns and legal representatives, to the end of the terms
for which the Patents have been or will be granted, as fully and entirely as the
same would have been held and enjoyed by Assignor if this assignment had not
been made; together with all claims by Assignor for damages by reason of past
infringement of the Patents with the
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right to sue for, and collect the same for its own use and benefit, and for the
use and benefit of its successors, assigns and other legal representatives.
Assignor agrees that when requested by Assignee it will, at the sole
cost of Assignee, execute all documents necessary or desirable to properly vest
full right, title and interest in and to all Patents throughout the world in the
name of Assignee or which, in the sole judgment of Assignee, may be necessary to
obtain, maintain, issue or enforce said Patents.
IN WITNESS WHEREOF, Walker Asset Management Limited Partnership has
caused this Patent Assignment to be executed and delivered as of this __ day of
_______, 1998.
IN WITNESS WHEREOF, priceline.com LLC accepts this Patent Assignment
executed and delivered as of this __ day of _______, 1998.
WALKER ASSET MANAGEMENT
LIMITED PARTNERSHIP
By: Walker Digital Corporation
Its Sole General Partner
By:_________________________
Name:
Title:
3
State of ________________ )
) ss.:
County of ______________ )
On this ____ day of _____, 1998, before me personally came ________________, to
me known, who being by me duly sworn, did depose and say that he/she is
______________ of Walker Digital Corporation, the sole general partner of the
limited partnership described in and which executed the foregoing instrument;
and that he/she signed his/her name thereto by order of the Board of Directors
of Walker Digital Corporation.
[Notarial Seal] ____________________________________
Notary Public
SCHEDULE 1
1. U.S. PATENTS
PATENT NO. TITLE
2. U.S. PATENT APPLICATIONS
SERIAL NO. TITLE
08/707,660 Method and Apparatus for a Cryptographically
Assisted Commercial Network System
Designed to Facilitate Buyer-Driven Conditional
Purchase Offers
08/889,319 Conditional Purchase Offer Management System
08/923,530 Conditional Purchase Offer Management System
for Event Tickets
08/943,266 System and Method for Aggregating Multiple Buyers
Utilizing Conditional Purchase Offers (CPOs)
08/923,317 Conditional Purchase Offer Management System
for Telephone Calls
08/923,683 Conditional Purchase Offer (CPO)
Management System for Packages
08/964,967 Conditional Purchase Offer (CPO)
Management System for Collectibles
08/923,524 Conditional Purchase Offer (CPO)
and Third-Party Input Management System
08/969,875 Conditional Purchase Offer (CPO)
Management System for Vehicle Leases
08/923,618 Conditional Purchase Offer
Management System for Cruises
2
08/943,483 System and Method for Facilitating Acceptance
of Conditional Purchase Offers (CPOs)
08/997,170 Conditional Purchase Offer Buyer Agency System
3. FOREIGN PATENTS AND PATENT APPLICATIONS
COUNTRY APPLN. NO. TITLE
WO US97/15492 Conditional Purchase Offer
Management System
EXHIBIT B
TRADEMARK ASSIGNMENT
BY AND BETWEEN WALKER ASSET MANAGEMENT
LIMITED PARTNERSHIP AND PRICELINE.COM LLC
WHEREAS, Walker Asset Management Limited Partnership, hereinafter
"Assignor", a limited partnership organized and existing under the laws of the
State of Connecticut, having a principal place of business at Five High Ridge
Park, Stamford, Connecticut 06905, is the record owner of certain trademark
registrations and/or trademark applications listed in SCHEDULE 1 (collectively
referred to as the "Marks"); and
WHEREAS, priceline.com LLC hereinafter "Assignee", a limited liability
company organized and existing under the laws of the State of Delaware, having a
place of business at Five High Ridge Park, Stamford, Connecticut 06905, desires
to acquire the Marks.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Assignor hereby sells, assigns and
transfers to Assignee, its successors and assigns, all of Assignor's right,
title and interest, whether statutory or at common law, in and to the Marks,
together with the goodwill of the business symbolized by them throughout the
world and such other trademarks, service marks, trade names and trade dress as
may be owned by Assignor and used in connection with the Marks, and all
registrations and pending applications therefor, in all countries throughout the
world (collectively, "All Marks"), together with all causes of action for any
and all previously occurring infringements of the rights being assigned and the
right to receive and retain the proceeds relating to those infringements.
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Assignor agrees to execute further papers and to do such other acts as
may be necessary and proper to vest full title in and to All Marks in the
Assignee or which may be necessary to obtain, renew, issue or enforce All Marks.
This Trademark Assignment may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, Walker Asset Management Limited Partnership has
caused this Trademark Assignment to be executed and delivered as of this ___ day
of ____, 1998.
IN WITNESS WHEREOF, priceline.com LLC accepts this Trademark
Assignment executed and delivered as of this ___ day of _____, 1998.
WALKER ASSET MANAGEMENT
LIMITED PARTNERSHIP
By: Walker Digital Corporation
Its Sole General Partner
By:_________________________
Name:
Title:
3
State of ________________ )
) ss.:
County of ______________ )
On this ____ day of ____, 1998, before me personally came ________________, to
me _____ known, who being by me duly sworn, did depose and say that he/she is
______________ of Walker Digital Corporation, the sole general partner of the
limited partnership described in and which executed the foregoing instrument;
and that he/she signed his/her name thereto by order of the Board of Directors
of Walker Digital Corporation.
[Notarial Seal] ____________________________________
Notary Public
SCHEDULE 1
Service Marks Owned or Controlled by Walker Asset Management Limited Partnership
and Worldwide Applications to Register Therefor
Description of Mark Country Appl. No. Filing Date
PRICELINE (word) United States 75/218912 27-Dec-96
Canada 848845 24-Jun-97
Community Trademark 595850 25-Jun-97
Japan 132553 27-Jun-97
TRAVEL PRICELINE (word) United States 75/218913 27-Dec-96
PRICELINE.COM (word) United States 75/371458 10-Oct-97
Canada 871380 06-Mar-98
Community Trademark 794537 08-Apr-98
Japan 27911/98 02-Apr-98
SUPER LEISURE (word) United States 75/406667 17-Dec-97
Canada 875442 17-Apr-98
Community Trademark 817494 06-May-98
Japan 39499/98 12-May-98
TYPE: EX-10.(6)(1)
SEQUENCE: 6
DESCRIPTION: EMPLOYMENT AGREEMENT 1/1/98
Exhibit 10.6.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 1, 1998 by and among Mr. Jay
Walker (the "Stockholder"), Walker Digital Corporation, a Connecticut
corporation ("Walker Digital"), priceline.com LLC, a Delaware limited liability
company ("PriceLine" and, together with Walker Digital, the "Companies"), and
Mr. Jesse Fink, a resident of the State of Connecticut (the "Employee").
WHEREAS, the Stockholder (or trusts established for the benefit of
members of the Stockholder's family) currently owns substantially all of the
issued and outstanding common stock, without par value, of Walker Digital
("Walker Digital Stock");
WHEREAS, the Stockholder (or trusts established for the benefit of
members of the Stockholder's family) and Walker Digital currently own
substantially all of the common equity units of PriceLine ("PriceLine Units");
and
WHEREAS, the Stockholder and the Companies desire that the Employee
continue to serve as the Chief Operating Officer of PriceLine and the Employee
desires to continue to so serve under the terms and conditions of this
Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the parties
agree as follows:
1. EMPLOYMENT.
(a) The Companies agree to continue to employee the Employee, and the
Employee hereby agrees to continue to serve the Companies, upon the terms and
subject to the conditions set forth herein. The Companies hereby agree to
continue to engage the Employee, and the Employee hereby agrees to continue to
serve, as a the Chief Operating Officer of each of the Companies upon the terms
and subject to the conditions set forth herein.
(b) During the Term (as defined herein), the Employee shall serve as
the Chief Operating Officer of each of the Companies and shall have such
responsibilities, duties and authority consistent with the position of Chief
Operating Officer as may from time to time be determined by the respective board
of directors of each of the Companies.
(c) During the Term, the Employee shall diligently and faithfully
serve the Companies and devote substantially all of his working time and efforts
to the business and affairs of the Companies.
(d) Upon the mutual agreement of the Employee and the Stockholder,
the Employee may be employed pursuant to this Agreement by an entity (the "New
Employer") other than the Companies that is controlled by the Stockholder, in
which event (i) the Employee shall be deemed to be employed by the New Employer
pursuant to the terms of this Agreement and the Term shall continue as if the
Employee continued to be employed by the Companies, (ii) the Employee shall be
entitled to the Options vested at the time of such transfer of employment and
(iii) (A) the Employee shall have the right to receive options to purchase
equity interests in the New Employer in lieu of the Options that are not vested
at the time of such transfer of employment and (B) the Employee and the
Stockholder shall negotiate in good faith to ensure that such options have an
equivalent profit opportunity over the term of this Agreement as the unvested
Options at the time of such transfer. For example, if the reasonably anticipate
value of the unvested Options at the time of the Employee's transfer of
employment equals $2 million, then the Employee would receive options to
purchase equity interests in the New Employer valued at $2 million that would be
subject to the same terms and conditions as the unvested Option.
2. TERM. Subject to Section 5 hereof, the term of the employment by
the Companies of the Employee pursuant to this Agreement (the "Term") is for an
initial period commencing on January 1, 1998 and terminating on January 1, 2001.
3. COMPENSATION.
(a) BASE SALARY. In partial consideration of the Employee's services
to be rendered pursuant hereto and the Employee's agreement to the covenants and
restrictions set forth in Section 8 hereof, the Companies shall pay to the
Employee, effective as of January 1, 1998, an annual base salary of $225,000,
2
subject to annual adjustment (the "Base Salary"), such salary to be payable to
the employee in semi-monthly installments in accordance with the Companies'
customary payroll practices. PriceLine and Walker Digital will allocate such
payments between them in their discretion.
(b) CASH BONUS. The Employee shall be eligible to participate in
any cash bonus program introduced by PriceLine at a level commensurate with the
Employee's position and responsibility.
(c) ISSUANCE OF PRICELINE UNITS. In partial consideration for the
services previously rendered by the Employee, the services to be rendered
pursuant hereto and the Employee's agreement to the covenants and restrictions
set forth in Section 8 hereof, PriceLine shall issue and deliver to the Employee
on the date of this Agreement a certificate or certificates representing
2,700,000 PriceLine Units (representing approximately 36% of the founders'
equity of PriceLine and approximately 3.9% of PriceLine's estimated
capitalization), free and clear of any lien, encumbrance, security interest,
mortgage, pledge, charge, claim, option, right of first refusal or call, or
restriction of any kind, other than the restrictions provided for herein. Upon
such delivery of PriceLine Units, the Employee shall agree in writing to be
bound by the terms and conditions of the Limited Liability Company Agreement
dated as of July 18, 1997 by and among PriceLine and its members (as the same
may be amended through the time of exercise or any successor agreement, the
"PriceLine LLC Agreement") and any other agreement pertaining to the rights of
equity holders of PriceLine, and will, if requested by PriceLine or the
Stockholder, execute a separate statement to such effect.
(d) PRICELINE OPTION.
(i) In partial consideration for the services previously
rendered by the Employee, the services to be rendered pursuant hereto and the
Employee's agreement to the covenants and restrictions set forth in Section 8
hereof, PriceLine hereby grants to the Employee, effective as of the date
hereof, an option (the "PriceLine Option") to purchase, on the terms set forth
in this Section 3(d), up to 2,200,000 PriceLine Units, which represent
approximately 3.2% of PriceLine's estimated capitalization.
(ii) The PriceLine Option is not intended to qualify as an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
3
(iii) The PriceLine Option is exercisable at an aggregate
exercise price of $2,200,000, or a per security exercise price of $1.00 per
PriceLine Unit.
(iv) Subject to Section 5 hereof, the PriceLine Option shall
become exercisable as to (A) 1,200,000 of the PriceLine Units underlying the
PriceLine Option on the earlier of (x) the day on which the 5,000th airline
ticket is sold through PriceLine's priceline.com website and (y) December 31,
1998 (the "Launch Vesting Date"); (B) 500,000 of the PriceLine Units underlying
the PriceLine Option on the first anniversary of the Launch Vesting Date; and
(C) 500,000 of the PriceLine Units underlying the PriceLine Option on the second
anniversary of the Launch Vesting Date.
(v) Except as otherwise specifically provided for in this
Agreement, the PriceLine Option shall be governed by the terms of the Omnibus
PriceLine Option Plan and related Option Agreement.
(e) WD/CASH OPTION.
(i) In partial consideration for the services previously
rendered by the Employee, the services to be rendered pursuant hereto and the
Employee's agreement to the covenants and restrictions set forth in Section 8
hereof, Walker Digital hereby grants to the Employee, effective as of the date
hereof and upon the terms set forth in this Section 3(e), an option (the
"WD/Cash Option," and together with the PriceLine Option, the "Options" ) to (A)
purchase up to 500 shares of Walker Digital Stock, which represent approximately
.5% of Walker Digital's estimated capitalization or (B) elect to receive a cash
payment (the "Cash Payment") from the Stockholder in an amount equal of the
product of (1) the difference between (x) the per share fair market value (as
determined pursuant to Section 3(e)(vi) hereof) of the common stock of NewSub
Services, Inc., a Connecticut corporation ("NewSub"), on the date of exercise of
the WS/Cash Option minus (y) $30,709.74 (the per share fair market value of the
common stock of NewSub on the date hereof) multiplied by (2) 32.563 (the
"Reference Factor").
(ii) The WD/Cash Option is not intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code.
4
(iii) The WD/Cash Option is exercisable in the aggregate for
(A) 500 shares of Walker Digital Stock at an aggregate exercise price of
$1,000,000, or a per security exercise price of $2,000 per share of Walker
Digital Stock (the "WD/Cash Exercise Price") or (B) the Cash Payment.
(iv) The per security exercise price for Walker Digital Stock
was determined on the basis of a $200 million valuation of Walker Digital, after
giving effect to presently anticipated equity transactions. The Reference Factor
of 32.563 was determined on the basis of a $270 million valuation of NewSub and
8,792 issued and outstanding shares of common stock of NewSub as of March 9,
1998.
(v) The WD/Cash Option shall become exercisable upon the
issuance of the WD/Cash Option. The WD/Cash Option may be exercised for Walker
Digital Stock or the Cash Payment by written notice delivered in person or by
mail to Walker Digital and the Stockholder specifying either the number of
shares of Walker Digital Stock that the WD/Cash Option is being exercised for or
that the WD/Cash Option is being exercised for the Cash Payment. If the WD/Cash
Option is exercised for Walker Digital Stock, the WD/Cash Exercise Price shall
be paid in full and in cash at the time of exercise to Walker Digital. Unless
sooner exercised or terminated pursuant to the terms of this Agreement, the
WD/Cash Option shall be cancelled and be of no further force and effect after
January 1, 2001 (the "Expiration Date").
(vi) The per share fair market value of the common stock of
NewSub on the date of exercise of the WD/Cash Option shall be determined in good
faith by the Stockholder, PROVIDED, HOWEVER, if the Employee challenges such
valuation within thirty (30) days of being notified of such valuation, then the
valuation shall be determined in the following manner:
(A) First, the Stockholder and the Employee shall each
select a financial advisor who shall work together to determine the per share
fair market value of the common stock of NewSub on the date of exercise of the
WD/Cash Option; and
(B) Second, if the financial advisors of the Stockholder
and the Employee are not able to mutually agree on the per share fair market
value of the common stock of NewSub on the date of exercise of the
5
WD/Cash Option, then the financial advisors shall jointly select a third
financial advisor to determine such value.
(vii) In determining the per share fair market value of the
common stock of NewSub on the date of exercise of the WD/Cash Option pursuant to
Section 3(e)(vi) , the Stockholder and the Employee shall each be responsible
for the fees, costs and expenses of their own financial advisor and shall
equally divide the fees, costs and expenses of the third financial advisor.
(f) ISSUANCE OF WALKER DIGITAL STOCK. The Employee will be issued
10% of the Walker Digital Stock as founder's equity effectively granted "as of"
June 30, 1996. This investment was diluted by capital contributions in the
amount of $5,977,843 that were made by the Stockholder from June 30, 1996
through December 31, 1997 based on a $20 million pre-investment valuation,
thereby diluting the Employee's equity stake to 7.7% by virtue of the
Stockholder's investment during such period. Such issuance will be in the form
of a profits interest and will be made as soon as practicable following the
recapitalization of Walker Digital to an limited liability company. The
tag-along and conversion provisions set forth in Section 3(g) hereof shall also
apply to the units received in such grant. The Employee will have the right to
maintain his base 10% stake in Walker Digital by giving the Stockholder a
personal recourse note accumulating interest at the rate of 12% compounded
annually in a principal amount equal to 10% of the Stockholder's investment
during this period (i.e., $597,784). The Stockholder's investment in Walker
Digital beginning January 1, 1998 will be based on a $100 million valuation,
subject to adjustment up or down based on changes in fair market value and
subject to fiduciary obligations to other shareholders. The Employee will have
the right to preserve his ownership percentage in Walker Digital by investing
cash in Walker Digital at the same valuation as any new investments. The
Employee will be diluted ratably with the Stockholder for the $5 million of
Walker Investment Unit subscriptions based on a $200 million valuation of Walker
Digital, thereby reducing Employee's investment ownership to 7.7%. The Employee
will have the right to co-invest with the Stockholder on a pari passu basis in
any venture that licenses or otherwise receives Walker Digital intellectual
property. In addition, it is currently anticipated that the Employee will
receive 30% of a management participation pool of 20% (i.e., 6% of the total) of
the 1996 Walker Digital patents and 20% of a management participation pool of
20% (i.e., 4% of the total) of the 1997 Walker Digital patents. Walker Digital
will hold approximately 7.3% of the fully diluted equity of PriceLine. In the
event that Walker Digital does not create any such management participation
pools or effect
6
the aforementioned recapitalization, the Employee and the Stockholder will
negotiate in good faith for a comparable management participation arrangement or
comparable founders' stock arrangement, as the case may be..
(g) ADJUSTMENT.
(i) In the event that, following March 9, 1998, Walker Digital
or PriceLine effects an extraordinary dividend or other extraordinary
distribution, recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, spin-off, combination, repurchase or
share exchange, or other similar corporate transaction or event that affects the
Walker Digital Stock, PriceLine Units, as the case may be, such that an
adjustment is appropriate to prevent dilution or enlargement of the rights of
the Employee with respect to the Options, then Walker Digital or PriceLine, as
the case may be, shall make such equitable changes or adjustments as Walker
Digital, with respect to the Walker Digital Stock, and PriceLine with respect to
the PriceLine Units, deems necessary or appropriate to any or all of (A) the
number and kind of equity securities for which the Options are exercisable and
(B) exercise price of the Options.
(ii) In the event that, following March 9, 1998, NewSub effects
an extraordinary dividend or other extraordinary distribution, recapitalization,
stock split, reverse stock split, reorganization, merger, consolidation,
spin-off, combination, repurchase or share exchange, or other similar corporate
transaction or event that affects the common stock of NewSub, such that an
adjustment is appropriate to prevent dilution or enlargement of the rights of
the Employee with respect to the WD/Cash Option, then the Stockholder shall make
such equitable changes or adjustments to the WD/Cash Option as the Stockholder
deems necessary or appropriate to the maximum Reference Factor and Section
3(e)(3). For example, in the event that NewSub declares a two-for-one stock
split the maximum Reference Factor would be increased to 65.126 and Section
3(e)(3) would be adjusted accordingly.
(iii) The parties hereto acknowledge and understand that
ordinary dividends and/or additional issuances of equity securities by Walker
Digital, PriceLine or NewSub for cash or property shall not result in an
adjustment under this Section 3(g), unless such issuances are to the Stockholder
or any member of the Stockholder's immediate family or any entity controlled by
the Stockholder or pursuant to a transaction that is not an "arm's length"
purchase of
7
such securities, in either case, at a valuation less than the valuations set
forth in Sections 3(d) and 3(e) hereof.
(h) BENEFITS. During the Term, Walker Digital or PriceLine shall
provide the Employee with health, welfare and insurance benefits to the extent
and on the same terms as it provides such benefits to its executive officers.
The Employee also shall be entitled to participate in and receive any fringe
benefits or perquisites which may become available to the Companies' executive
officers.
(i) TAG-ALONG RIGHTS; CONVERSION.
(i) Except as set forth below, if the Stockholder proposes to
transfer, sell or otherwise dispose of PriceLine Units or shares of Walker
Digital Stock (other than to an affiliate, as defined in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934, as amended, of the Stockholder), the
Stockholder shall provide the Employee with not less than ten business days'
prior written notice of such proposed sale, which notice shall include all of
the terms and conditions of such proposed sale and identify the proposed
purchaser(s) ("Tag-Along Purchaser(s)") of such securities (the "Sale Notice").
The Employee shall have the option, exercisable by written notice given to the
Stockholder within ten business days after receipt of the Sale Notice, to
require the Stockholder to arrange for such Tag-Along Purchaser(s) to purchase
from the Employee, together with the Stockholder's securities, that number of
PriceLine Units or shares of Walker Digital Stock, as the case may be ("Employee
Put Shares"), equal to the product, rounded down to the nearest whole number, of
(a) a fraction, the numerator of which is the number of PriceLine Units or
shares of Walker Digital Stock, as the case may be, proposed to be sold by the
Stockholder and the denominator of which is the number of PriceLine Units or
shares of Walker Digital Stock, as the case may be, then owned by the
Stockholder, multiplied by (b) the number of PriceLine Units or shares of Walker
Digital Stock, as the case may be, then owned by the Employee, or any lesser
number of shares of such securities as the Employee shall desire. If the
Employee shall so elect, the Stockholder shall either (y) arrange for such
Tag-Along Purchaser(s) to purchase the Employee Put Shares at the same time as
and upon the same terms (including price per PriceLine Unit or share of Walker
Digital Stock) and conditions (including all direct or indirect consideration or
compensation) at which the Stockholder sells his PriceLine Units or shares of
Walker Digital Stock, as the case may be (it being understood that in the event
the Employee Put Shares require exercise, con-
8
version or exchange to effect such sale, such exercise, conversion or exchange
may be made simultaneously with the closing of such sale), and provided that if
such Tag-Along Purchaser(s) elect to purchase only such aggregate number of
securities as originally agreed with the Stockholder, then the number of
securities to be sold by the Stockholder and the Employee shall be reduced pro
rata to such aggregate number or (z) not effect the proposed sale to such Tag
Along Purchaser(s).
(ii) Upon the conversion of PriceLine from a limited
liability company to a "C" corporation under the Code, the issued and
outstanding PriceLine Units owned by the Employee shall be converted into the
number of shares of stock of the successor corporation that is necessary for the
Employee to own the same percentage of the issued and outstanding stock of such
corporation immediately after such conversion as the Employee owned of the
issued and outstanding PriceLine Units immediately prior to such conversion.
(iii) In the event that PriceLine sells all or a
substantial portion of its assets outside of the ordinary course of business,
then the Employee shall be paid, as additional compensation, an amount equal to
the excess, if any, of (A) an amount equal to what would have been his "pro
rata" share of the net proceeds available for distribution to all holders of
PriceLine Units (calculated as if all holders of PriceLine Units were to receive
distributions strictly in accordance with the number of PriceLine Units
outstanding and owned by each member of PriceLine) over (B) the amount available
for distribution to him under the terms of the PriceLine LLC Agreement.
4. BUSINESS EXPENSES. The Employee shall be reimbursed for all
direct, out-of-pocket business expenses incurred by him in connection with his
employment (including, without limitation, expenses for travel and entertainment
incurred in conducting or promoting business for the Companies) upon timely
submission by the Employee of receipts and other documentation as required by
the Code and in accordance with the normal expense reimbursement policies of the
Companies.
5. TERMINATION.
(a) DEATH. The employment by the Companies of the Employee pursuant
to this Agreement shall be terminated upon the death of the
9
Employee. In the event that this Agreement is terminated pursuant to this
Section 5(a), (i) the Employee's spouse or heirs shall be entitled to (A) the
Base Salary and benefits to be paid or provided to the Employee under this
Agreement through the Date of Termination (as defined herein) and (B) the Base
Salary and benefits to be paid or provided to the Employee under this Agreement
for the period commencing on the day after the Date of Termination and ending on
the later of (x) the six (6) month anniversary of the Date of Termination or
(y) January 1, 1999 and (ii) the Employee's executor, administrator or other
person entitled by law to his rights under the Options shall be entitled to
exercise the Options in accordance with the terms set forth in Section 3 as
though the Employee had not been terminated and vested Options shall be
exercisable at any time prior to the later of (A) one year after the Date of
Termination and (B) ninety days after the third anniversary of the date of this
Agreement. To the extent not exercisable pursuant to Section 3 hereof or this
Section 5(a), the Options shall immediately terminate on the Date of
Termination.
(b) DISABILITY. The employment by the Companies of the Employee
pursuant to this Agreement may be terminated by written notice to the Employee
at the option of either of the Companies, in the event that the Employee becomes
unable to perform his duties and responsibilities by reason of physical or
mental illness or accident for any six (6) consecutive month period. In the
event that this Agreement is terminated by the Companies pursuant to this
Section 5(b), the Employee shall be entitled to (i) the Base Salary and benefits
to be paid or provided to the Employee under this Agreement through the Date of
Termination; (ii) the Base Salary and benefits to be paid or provided to the
Employee under this Agreement for the period commencing on the day after the
Date of Termination and ending on the later of (A) the six (6) month anniversary
of the Date of Termination or (B) January 1, 1999; and (iii) exercise the
Options in accordance with the terms set forth in Section 3 as though the
Employee had not been terminated and vested Options shall be exercisable at any
time prior to the later of (A) one year after the Date of Termination and (B)
ninety days after the third anniversary of the date of this Agreement. To the
extent not exercisable pursuant to Section 3 hereof or this Section 5(b), the
Options shall immediately terminate on the Date of Termination.
(c) BY THE COMPANIES FOR CAUSE. This Agreement may be terminated by
either of the Companies by written notice to the Employee ("Notice of
Termination") upon the occurrence of any of the following events (each of which
shall constitute "Cause" for termination): (i) the commission by the
10
Employee of any act of gross negligence, fraud or dishonesty causing harm to
either of the Companies; (ii) the conviction of the Employee of a felony; (iii)
intentional obtainment by the Employee of personal gain, profit or enrichment at
the expense of either of the Companies or from any transaction in which the
Employee has an interest which is adverse to the interest of either of the
Companies, unless the Employee shall have obtained the prior written consent of
the board of directors of the Company as to which his interest is adverse; (iv)
acts by the Employee in a manner which is materially detrimental or damaging to
either of the Companies' reputation, business operations or relations with its
employees, suppliers or customers; or (v) any material breach by the Employee of
this Agreement, including, without limitation, a breach of Section 1 or 8 hereof
or the Confidentiality Agreements (as defined herein), which breach, if able to
be corrected, remains uncorrected for a period of thirty (30) days after receipt
by the Employee of written notice from the Companies setting forth the breach.
In the event the employment by the Companies of the Employee is terminated
pursuant to this Section 5(c), the Employee shall be entitled to the Base Salary
and benefits to be paid or provided to the Employee under this Agreement through
the Date of Termination and the Options, whether or not then exercisable, may
not be exercised at any time on or after the Date of Termination.
(d) BY THE COMPANIES WITHOUT CAUSE. The employment by the Companies
of the Employee pursuant to this Agreement may be terminated by either of the
Companies at any time without Cause by delivery of a Notice of Termination to
the Employee. In the event that the employment by the Companies of the Employee
pursuant to this Agreement is terminated by the Companies pursuant to this
Section 5(d), the Employee shall be entitled to (i) the Base Salary and benefits
to be paid or provided to the Employee under this Agreement through the Date of
Termination; (ii) the Base Salary and benefits to be paid or provided to the
Employee under this Agreement for the period commencing on the day after the
Date of Termination and ending on the later of (A) the six (6) month anniversary
of the Date of Termination or (B) January 1, 1999; and (iii) exercise the
Options in accordance with the terms set forth in Section 3 as though the
Employee had not been terminated and vested Options shall be exercisable at any
time prior to ninety days after the third anniversary of the date of this
Agreement. To the extent not exercisable pursuant to Section 3 hereof or this
Section 5(d), the Options shall immediately terminate on the Date of
Termination.
(e) BY THE EMPLOYEE. The employment of the Employee by the Companies
pursuant to this Agreement may be terminated by the Employee at any
11
time by delivery of a written notice of resignation to the Companies and the
Stockholder ("Notice of Resignation"). In the event the employment by the
Companies of the Employee pursuant to this Agreement is terminated by the
Employee pursuant to this Section 5(e), the Employee shall be entitled to (i)
the Base Salary and benefits to be paid or provided to the Employee under this
Agreement through the Date of Termination, (ii) exercise the PriceLine Option in
accordance with the terms set forth in Section 3(d) hereof, as to the number and
type of securities for which the PriceLine Option would be exercisable on the
next vesting date following the Date of Termination, at any time prior to 90
days after the Date of Termination and (iii) exercise the WD/Cash Option in
accordance with the terms set forth in Section 3(e) hereof, at any time prior to
90 days after the Date of Termination. To the extent not exercisable pursuant
to Section 3 hereof or this Section 5(e), the Options shall immediately
terminate on the Date of Termination.
(f) DATE OF TERMINATION. The Employee's Date of Termination shall be
(i) if the Employee's employment by the Companies is terminated pursuant to
Section 5(a) hereof, the date of his death, (ii) if the Employee's employment by
the Companies is terminated pursuant to Section 5(b) hereof, the last day the
Employee worked, (iii) if the Employee's employment by the Companies is
terminated pursuant to Section 5(c) or 5(d) hereof, the date on which a Notice
of Termination is given and (iv) if the Employee's employment by the Companies
is terminated pursuant to Section 5(e) hereof, the date on which a Notice of
Resignation is given.
6. REPRESENTATIONS.
(a) Walker Digital represents and warrants that (i) this Agreement
has been authorized by all necessary corporate action of Walker Digital and is a
valid and binding agreement of Walker Digital enforceable against it in
accordance with its terms and (ii) all shares of Walker Digital Stock which may
be issued upon exercise of the WD/Cash Option shall be, when issued in
accordance with the terms of this Agreement, duly authorized, validly issued,
fully paid and nonassessable and free of any preemptive rights in respect
thereto.
(b) PriceLine represents and warrants that (i) this Agreement has
been authorized by all necessary corporate action of PriceLine and is a valid
and binding agreement of PriceLine enforceable against it in accordance with its
terms and (ii) all PriceLine Units which may be issued pursuant to this
Agreement shall
12
be, when issued in accordance with the terms of this Agreement, duly authorized,
validly issued, fully paid and nonassessable and free of any preemptive rights
in respect thereto.
(c) The Stockholder represents and warrants that he is not a party to
any agreement or instrument which would prevent him from entering into or
performing his duties in any way under this Agreement and that this Agreement is
a valid and binding agreement of the Stockholder enforceable against him in
accordance with its terms.
(d) The Employee represents and warrants that he is not a party to
any agreement or instrument which would prevent him from entering into or
performing his duties in any way under this Agreement and that this Agreement is
a valid and binding agreement of the Employee enforceable against him in
accordance with its terms.
7. LIMITATION ON TRANSFER OF SECURITIES.
(a) The Employee shall not, directly or indirectly, offer, transfer,
sell, assign, pledge, encumber, hypothecate or otherwise dispose of all or part
of the securities issued pursuant to this Agreement or solicit any offers to
purchase or otherwise acquire or take a pledge of all or part of such securities
without the prior written consent of the issuer of such securities, PROVIDED,
HOWEVER, the foregoing restrictions shall not apply to the securities of an
issuer that has issued common equity securities in a public offering pursuant to
an effective registration statement under the Securities Act of 1933, as amended
(the "Act"), other than a registration statement filed on Form S-8, or any
successor form thereto, or any other applicable form with respect to the
issuance of common equity securities to be issued or granted to employees,
officers or directors of the issuer, in an amount not to exceed 15% of the
common equity securities of the issuer then outstanding on a fully-diluted
basis.
(b) In the event of any purported or attempted transfer by the
Employee of all or part of the securities issued pursuant to this Agreement that
does not comply with this Agreement, the purported transferee or successor shall
not be deemed to be a security holder of the issuer of such securities for any
purpose and shall not be entitled to any of the rights of a security holder,
including, without limitation, the right to vote or to receive any dividends or
other distributions on or with respect to such securities.
13
(c) Notwithstanding the foregoing, no provision hereof is intended to
prohibit the transfer of the securities issued pursuant to this Agreement (i)
upon the death of the Employee, by operation of laws of inheritance and descent
to the Employee's personal representatives, executors, administrators,
testamentary trustees, legatees or beneficiaries or (ii) by gift to a spouse,
child, other descendant or any other United States citizen, PROVIDED such person
is reasonably satisfactory to the Stockholder, or to a trust established for the
benefit of such person (each transferee referred to in clause (i) or (ii) being
a "Permitted Transferee"); PROVIDED, HOWEVER, that (i) any and all such
Permitted Transferees shall agree in writing to be bound by the terms of this
Agreement, a copy of which writing shall be filed with the issuer of such
securities and (ii) any such securities so transferred shall continue to be
subject to this Agreement.
(d) The Employee acknowledges that he is aware that there are
substantial restrictions on the transferability of the securities issued
pursuant to this Agreement. In addition to the restrictions set forth above,
since the securities issued pursuant to this Agreement will not be, and the
Employee has no right to require that such securities be, registered under the
Act, such securities may not be sold unless such sale is exempt from such
registration under the Act. The undersigned further acknowledges that the
Employee shall be responsible for compliance with all conditions on transfer
imposed by any state "blue sky" or securities law administrator.
(e) Each certificate representing the securities (other than the
PriceLine Option and the WD/Cash Option) issued to the Employee pursuant to this
Agreement shall bear substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
ENCUMBRANCE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE
PROVISIONS OF THE EMPLOYMENT AGREEMENT DATED AS OF JANUARY 1, 1997.
IN ADDITION TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SUCH
AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, ENCUMBRANCE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE
14
MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS
IN EFFECT THEREUNDER (THE "ACT"), AND ALL APPLICABLE STATE SECURITIES OR
"BLUE SKY" LAWS OR (B) IF SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
ENCUMBRANCE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF THE ACT AND, IF REQUIRED BY THE COMPANY, THE COMPANY HAS BEEN
FURNISHED WITH AN OPINION OF COUNSEL FOR THE HOLDER, WHICH OPINION AND
COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE COMPANY, TO THAT EFFECT.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES
TO BE BOUND BY ALL OF THE PROVISIONS OF THE AFORESAID AGREEMENT.
8. CONFIDENTIALITY; NON-COMPETITION. As a condition to the
Companies' and the Stockholder's willingness to enter into this Agreement and in
partial consideration of the grant of the Options, the Employee agrees to the
covenants and restrictions set forth in this Section 8.
(a) The Employee agrees that, during the Term and for a period of two
(2) years thereafter, he shall not, directly or indirectly, induce or solicit
(or authorize or assist in the taking of any such actions by any third party)
any employee or consultant of the Companies to leave his or her business
association with the Companies.
(b) The Employee acknowledges and agrees that, during the course of
the provision of the Employee's services to the Companies, the Employee may be
exposed to confidential, proprietary or sensitive data and information
concerning the business and affairs of the Companies, and that all such data and
information constitutes a protectable business interest of the Companies. In
furtherance of such business interest, the Employee is contemporaneously
herewith executing and delivering to Walker Digital and PriceLine the standard
consultant confidentiality agreement of each of them (the "Confidentiality
Agreements").
(c) The Employee agrees that he will not at any time during the Term
and, (i) for a period of one (1) year following the Date of Termination, di-
15
rectly or indirectly, own any interest in, operate, join, control or participate
as a director, stockholder, owner, partner, principal, officer or agent of,
enter into the employment of, act as a consultant to, or perform any services
for, any entity that is engaged anywhere in the United States of America in any
business in which either of the Companies is presently engaged. Notwithstanding
anything herein to the contrary, this Section 8 shall not prevent the Employee
from acquiring securities representing not more than one percent (1%) of the
outstanding voting securities of any publicly held corporation. It is the
desire and intent of the parties that the provisions of this Section 8(c) shall
be enforced to the fullest extent permitted under applicable law. If all or
part of this Section 8(c) is held 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. If any part of
this Section 8(c) is ultimately determined to be excessively broad as to
duration, scope, activity or subject, such part will be construed by limiting
and reducing it so as to be enforceable to the maximum extent compatible with
applicable law.
(d) The Employee acknowledges and agrees that each of the covenants
set forth in this Section 8 and in the Confidentiality Agreements are reasonable
and necessary for the protection of the Companies' business interests, that
irreparable injury will result to the Companies if the Employee breaches any of
the terms of said covenants, and that in the event of the Employee's actual or
threatened breach of any such covenants, the Companies will have no adequate
remedy at law. The Employee accordingly agrees that in the event of any actual
or threatened breach by the Employee of any of said covenants, the Companies
shall be entitled to immediate injunctive and other equitable relief without
bond and without the necessity of showing actual monetary damages. Nothing
contained herein shall be construed as prohibiting the Companies from pursuing
any other remedies available to it for such breach or threatened breach,
including the recovery of any damages which it is able to prove.
(e) The provisions of this Section 8 shall survive the expiration or
termination of this Agreement, and any of the arrangements contained herein, and
shall be binding upon the Employee's corporate or personal successors and
assigns.
9. INDEMNIFICATION. In the event the Employee was, is or becomes a
party to or witness or other participant in, or is threatened to be made a party
to or witness or other participant in, any threatened, pending or completed
16
action, suit or proceeding, or any inquiry or investigation (whether instituted
by the Companies or any other party) that the Employee in good faith believes
might lead to the institution of any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise (a "Claim"), by
reason of (or arising in part out of) any event or occurrence related to the
fact that the Employee is or was a director, officer, employee, agent,
independent contractor, consultant or fiduciary of either of the Companies, or
is or was serving at the request of either of the Companies as a director,
officer, employee, trustee, agent, independent contractor, consultant or
fiduciary of another corporation, partnership, limited liability company, joint
venture, employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by the Employee in any such capacity (an
"Indemnifiable Event"), then the Companies, jointly and severally, shall
indemnify and hold harmless the Employee to the fullest extent permitted by law
as soon as practicable but in any event no later than thirty (30) days after
written demand is presented to the Companies, against any and all expenses
(including attorneys' fees), judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such expenses, judgments, fines,
penalties or amounts paid in settlement of such Claim. If so requested by the
Employee, the Companies shall advance (within two (2) business days of such
request) to the Employee any and all expenses (including attorneys' fees)
incurred by the Employee in connection with any Claim relating to an
Indemnifiable Event, upon the receipt of an undertaking by or on behalf of the
Employee to repay such amounts if it shall ultimately be determined that he is
not entitled to be indemnified by the Companies as authorized in this Section 9.
Notwithstanding anything contained herein to the contrary, the indemnification
obligations of the Companies set forth in this Section 9 shall survive the
termination or expiration of this Agreement.
10. SUCCESSORS; BINDING AGREEMENT. This Agreement is a personal
contract and the rights and interests of the Employee hereunder may not be sold,
transferred, assigned, pledged, encumbered or hypothecated by him, except as
otherwise expressly permitted by the provisions of this Agreement. This
Agreement shall inure to the benefit of the parties hereto and their respective
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. ENTIRE AGREEMENT. This Agreement and the Confidentiality
Agreements contain all of the understandings between the parties hereto
pertaining to the matters referred to herein, and supersedes any other
undertakings and agree-
17
ments, whether oral or in writing, previously entered into by them with respect
thereto. The Employee represents that, in executing this Agreement, he does not
rely and has not relied upon any representation or statement not set forth
herein made by the Stockholder or the Companies with regard to the subject
matter or effect of this Agreement or otherwise.
12. AMENDMENT, MODIFICATION AND WAIVER. No provision of this
Agreement may be amended, modified or waived unless such amendment, modification
or waiver is agreed to in writing, signed by the Employee, the Stockholder and a
duly authorized officer of each of the Companies. No waiver by any party hereto
of any breach by another party hereto of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same time, any prior time or
any subsequent time.
13. NOTICES. Any notices, requests, demands, waivers or other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed given when delivered personally, sent by courier or
facsimile or registered or certified mail, postage prepaid, return receipt
requested, by reputable overnight courier (receipt of which is confirmed)
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice hereunder in writing:
To the Employee at:
Mr. Jesse Fink
Five High Ridge Park
Stamford, Connecticut 06905-1325
Telecopier: (203) 614-3234
To Walker Digital at:
Walker Digital Corporation
Five High Ridge Park
Stamford, Connecticut 06905-1325
Telecopier: (203) 614-3234
Attention: Mr. Jay Walker
To PriceLine at:
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priceline.com LLC
Five High Ridge Park
Stamford, Connecticut 06905-1325
Telecopier: (203) 614-3234
Attention: Mr. Jay Walker
To the Stockholder at:
Mr. Jay Walker
Four High Ridge Park
Stamford, Connecticut 06905-1325
Telecopier: (203) 614-3234
All such notices, requests, demands, waivers and communications shall be deemed
to have been given on the date on which so hand-delivered, on the third business
day following the date on which so mailed, on the next business day following
the date on which delivered to such overnight courier and on the date of such
facsimile transmission and confirmation, except for a notice of change of person
or address, which shall be effective only upon receipt thereof.
14. SEVERABILITY. If for any reason any provision of this Agreement
shall be held invalid, such invalidity shall not affect any other provision of
this Agreement not so held invalid, and all other such provisions shall to the
full extent consistent with law continue in full force and effect. If any such
provision shall be held invalid in part, such invalidity shall in no way affect
the rest of such provision which, together with all other provisions of this
Agreement, shall likewise to the full extent consistent with law continue in
full force and effect.
15. SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
16. GOVERNING LAW; JURISDICTION; ARBITRATION.
(a) This Agreement will be governed by and construed in accordance
with the laws of the State of Connecticut, without regard to its conflicts of
laws principles.
19
(b) The parties hereto hereby irrevocably:
(i) agree that any suit, action or other legal proceeding
arising out of this Agreement, or any of the transactions contemplated hereby,
may be brought in the courts of record of the State of Connecticut or the courts
of the United States located in the State of Connecticut;
(ii) consent to the jurisdiction of each such court in any
such suit, action or proceeding;
(iii) waive any objection to the laying of venue of any such
suit, action or proceeding in any of such courts; and
(iv) agree that Connecticut is the most convenient forum for
litigation of any such suit, action or proceeding.
(c) If any dispute arising under this Agreement is not settled
promptly in the ordinary course of business, the parties shall seek to resolve
any such dispute between them, first, by negotiating promptly with each other in
good faith. If the parties are unable to resolve the dispute between them
within twenty (20) business days (or such period as the parties shall otherwise
agree) through these negotiations, then any such disputes shall be settled by
binding arbitration in accordance with this Agreement and the following
procedures:
(i) Any arbitration shall be conducted in accordance with the
Commercial Rules of the American Arbitration Association (the "AAA") then in
effect.
(ii) Either party shall serve upon the other parties a written
demand that the dispute be arbitrated, specifying in reasonable detail the
nature of the dispute to be submitted to arbitration.
(iii) Within thirty (30) days after service of a demand for
arbitration, the parties shall attempt to agree upon a single arbitrator.
(iv) In the event the parties cannot agree upon a single
arbitrator, any party may request the AAA to appoint an arbitrator in accordance
with its rules; except that if the parties fail to agree upon an arbitrator from
the persons named by the AAA or if for any reason the appointment cannot be made
20
from the lists submitted by the AAA, then the Employee, on the one hand, and the
Companies and the Stockholder, on the other hand, shall appoint an arbitrator
within seven (7) days thereafter and the third arbitrator shall be appointed by
the AAA.
(v) The arbitration proceeding shall be held in Stamford,
Connecticut.
(vi) The arbitrators shall have no power or authority to add
to or detract from the agreements of the parties. The arbitrators shall have no
authority to award punitive, exemplary, consequential, special, indirect or
incidental damages.
(vii) The expenses of arbitration shall be borne equally by the
Employee, on the one hand, and the Companies and the Stockholder, on the other
hand, unless the arbitrators determine that one of the parties has not proceeded
in good faith with respect to the matters submitted for arbitration, in which
case, such party shall bear fully the expenses of arbitration.
(viii) Judgment may be entered on any arbitration award in any
court of competent jurisdiction.
17. HEADINGS. All descriptive headings of sections and paragraphs in
this Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph.
18. SPECIFIC PERFORMANCE. Each party hereto acknowledges that money
damages would be both incalculable and an insufficient remedy for any breach of
this Agreement by such party and that any such breach would cause the other
parties irreparable harm. Accordingly, each party hereto also agrees that, in
the event of any breach or threatened breach of the provisions of this Agreement
by such party, the other parties shall be entitled to equitable relief without
the requirement of posting a bond or other security, including in the form of
injunctions and orders for specific performance, in addition to all other
remedies available to such other parties at law or in equity.
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19. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYEE
/s/ Jesse Fink
----------------------------------
Jesse Fink
WALKER DIGITAL CORPORATION
By: /s/ Jay M. Walker
-------------------------------
Name:
-----------------------------
Title:
----------------------------
priceline.com LLC
By: /s/ Jay M. Walker
-------------------------------
Name:
-----------------------------
Title:
----------------------------
STOCKHOLDER
/s/ Jay M. Walker
----------------------------------
Jay Walker
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Purchase and Intercompany Services Agreement - Walker Asset Management LP, Walker Digital Corp, Priceline.com LLC and Priceline Travel Inc.
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