EXHIBIT 10.19.2
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR
CERTAIN PORTIONS OF THIS DOCUMENT. CONFIDENTIAL
PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
FIRST AMENDMENT AND WAIVER TO PARTICIPATION
WARRANT AGREEMENT
FIRST AMENDMENT AND WAIVER TO PARTICIPATION WARRANT AGREEMENT, dated
as of December 31, 1998 (this "Amendment"), between DELTA AIR LINES, INC., a
Delaware corporation (the "Warrant Holder"), and ▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED, a
Delaware corporation (the "Company").
WHEREAS, the Warrant Holder and the Company are parties to a
Participation Warrant Agreement, dated August 31, 1998 (the "Warrant
Agreement"); and
WHEREAS, the parties wish to amend the Warrant Agreement upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the covenants
and undertakings contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to them in the Warrant Agreement.
2. AMENDMENTS TO SECTION 1 OF THE WARRANT AGREEMENT. The phrase "Fifteen Million
One Hundred Fourteen Thousand and Eighty-Three (15,114,083)" is hereby deleted
and replaced with the following: "Fourteen Million, Eight Hundred Ninety-Five
Thousand, Five Hundred Twenty-Two (14,895,522)". Warrant Holder hereby
acknowledges that as a result of the reduction in the number of Shares pursuant
to this Amendment, all references in the Agreement to the percentage of Fully
Diluted Equity the Shares represent shall be proportionally decreased. The last
two sentences of Section 1 of the Warrant Agreement are hereby deleted in their
entirety.
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3. AMENDMENT TO SECTION 3 OF THE WARRANT AGREEMENT. Section 3 of the Warrant
Agreement is hereby amended and restated in its entirety to read as follows:
"3. TERM. Except as otherwise provided for herein, the term of the
Warrants and the right to purchase Shares as granted herein shall be
exercisable, at any time and from time to time beginning after
December 31, 1998 and terminating at 5:00 p.m. New York City local
time on December 31, 2005; provided, however, that if the Warrants
vest on December 31, 2005, the Warrant Holder will have an
additional six months thereafter to exercise its purchase rights in
respect of the Warrants (such seven year period and additional six
months, if applicable, being referred to herein as the "Termination
Date"); and PROVIDED further, HOWEVER, that if the Company has not
completed an initial public offering of shares of Common Stock of
the Company pursuant to an effective Registration Statement under
the Securities Act of 1933, as amended ("IPO"), prior to such
Termination Date, then the term of the Warrants shall be extended
on a year to year basis until the date that is six months after the
effective date of the Company's IPO. In the event that the
Termination Date falls on a date other than a business day in New
York City, then the Termination Date shall be deemed to be the next
succeeding business day thereafter.
4. AMENDMENTS TO SECTION 4 OF THE WARRANT AGREEMENT. Section 4(c) of the
Warrant Agreement is hereby amended by deleting all references to the number
"7,557,041" and replacing such references with the number "7,338,480". Section 4
of the Warrant Agreement is hereby amended to add a new Section 4(f) to read in
its entirety as follows:
"(f) FULL VESTING. Notwithstanding anything to the contrary
contained herein, the Warrants shall vest, to the extent not
previously vested pursuant to Sections 4(a), 4(b) or 4(c) above, on
December 31, 2005.
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5. WARRANT HOLDER WAIVER. The Warrant Holder waives any rights, claims and
actions it may have (i) under Sections 10(e) and (f) of the Warrant Agreement in
respect of the increase in the number of shares of Common Stock available for
issuance to employees and other personnel of the Company under the ▇▇▇▇▇▇▇▇▇.▇▇▇
1997 Omnibus Plan from 17.1 million shares to 19.1 million shares, such increase
already having been waived by the Purchasers, and (ii) under Sections 10(e) and
(f), and under Section 15(c), of the Warrant Agreement in connection with the
issuance of warrants to acquire 250,000 shares of Common Stock at an exercise
price of $4.00 per share issued to [**].
6. COMPANY WAIVER. Section 5 of the Warrant Agreement is deleted in its
entirety.
7. AMENDMENT. All references in the Warrant Agreement (and in the other
agreements, documents and instruments entered into in connection therewith) to
the "Warrant Agreement" shall be deemed for all purposes to refer to the Warrant
Agreement, as amended by this Amendment.
8. REMAINING PROVISIONS OF WARRANT AGREEMENT. Except as expressly provided
herein, the provisions of the Warrant Agreement shall remain in full force and
effect in accordance with their terms and shall be unaffected by this Amendment.
9. COUNTERPARTS. This Amendment may be executed in any number of counterparts
and by the parties 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.
10. HEADINGS. The headings in this Amendment are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
11. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of law of any jurisdiction.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the authorized officers of each of the undersigned as of the date
first above written.
PRICELINE. COM INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: CFO
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DELTA AIR LINES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive Vice President &
Chief Financial Officer
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