Exhibit
4.1


 










 


PRICELINE.COM
INCORPORATED


 


ISSUER


 










 


AMERICAN
STOCK TRANSFER & TRUST COMPANY


 


TRUSTEE


 










 


FIRST
SUPPLEMENTAL INDENTURE


 


Dated
as of December 13, 2004


 










 


2.25%
CONVERTIBLE SENIOR NOTES DUE JANUARY 15, 2025


 










 


 





















 


FIRST SUPPLEMENTAL INDENTURE,
dated as of December 13, 2004 (the “Supplemental Indenture”), between
PRICELINE.COM INCORPORATED, a Delaware corporation (the “Company”), and
AMERICAN STOCK TRANSFER & TRUST COMPANY, as trustee (the “Trustee”), to the
indenture, dated as of June 28, 2004, between the Company and the Trustee
(the “Original Indenture”).


W I T N E S S E T H:


WHEREAS, the Company and the
Trustee have heretofore executed and delivered the Original Indenture providing
for the issuance of 2.25% Convertible Senior Notes due January 15, 2025 (the “Notes”)
of the Company; and


WHEREAS, pursuant to Section
8.1 of the Original Indenture, the Company and the Trustee are authorized to
execute and deliver this Supplemental Indenture.


NOW, THEREFORE, in
consideration of the premises and the covenants and agreements contained
herein, and for other good and valuable consideration the receipt of which is
hereby acknowledged, and for the equal and proportionate benefit of the Holders
of the Notes, the Company and the Trustee hereby agree as follows:


Section 1.  Amendment of Certain Provisions


(a)           Section 1.1 of the Original Indenture is hereby amended by
deleting the definition of “Additional Shares”.


(b)           The second sentence of the definition of “Common Stock” in
Section 1.1 of the Original Indenture is hereby amended by deleting the words “or
repurchase”.


(c)           Section 1.12 of the Original Indenture is hereby amended
by deleting the words “(whether the same is payable in cash, shares of Common
Stock or a combination thereof in the case of the Repurchase Price or
Designated Event Repurchase Price)”.


(d)           The fifteenth paragraph under “[FORM OF REVERSE]” in
Section 2.2 of the Original Indenture is hereby amended by deleting the last
sentence, which states “At the option of the Company, the Repurchase Price may
be paid in cash, or subject to the fulfillment by the Company of the conditions
set forth in the Indenture, by delivery of shares of Common Stock having a fair
market value to the Repurchase Price (less any cash payments), or a combination
of cash and Common Stock.”, and replacing such with the following sentence: “The
Repurchase Price shall be paid in cash.”


(e)           The sixteenth paragraph under “[FORM OF REVERSE]” in
Section 2.2 of the Original Indenture is hereby amended by deleting the last sentence,
which states “At the option of the Company, the Designated Event Repurchase
Price may be paid in cash or, subject to the conditions provided in the
Indenture, by delivery of 


 


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shares of Common Stock having a fair market value
equal to the Designated Event Repurchase Price.”, and replacing such with the
following sentence: “The Designated Event Repurchase Price shall be paid in
cash.”


(f)            The seventeenth paragraph under “[FORM OF REVERSE]” in
Section 2.2 of the Original Indenture is hereby amended by deleting the first
sentence, which states “For purposes of the two preceding paragraphs, the fair
market value of shares of Common Stock shall be determined by the Company and
shall be equal to 95% of the average of the Closing Prices Per Share for the
five consecutive Trading Days immediately preceding and including the third
Trading Day prior to the Repurchase Date or the Designated Event Repurchase
Price, as the case may be.”


(g)           The eighteenth paragraph under “[FORM OF REVERSE]” in
Section 2.2 of the Original Indenture is hereby amended by deleting the
penultimate and last sentences, which state “The Company may pay the Make Whole
Premium in (at the Company’s option) Common Stock, cash or a combination thereof,
or in the same form of consideration into which all or substantially all of the
Common Stock has been converted in connection with the applicable Fundamental
Change, valued as set forth in the Indenture. 
If Holders of the Common Stock have the right to elect the form of
consideration received in a Fundamental Change, then for purposes of the
foregoing the consideration into which a share of Common Stock has been
converted shall be deemed to equal the aggregate consideration distributed in
respect of all shares of Common Stock of the Company divided by the total
number of shares of Common Stock participating in the distribution.” and
replacing such with the following:  “The
Company shall pay the Make Whole Premium in cash.”


(h)           The second paragraph under “ELECTION OF HOLDER TO REQUIRE
REPURCHASE” in Section 2.2 of the Original Indenture is hereby amended by
replacing the words “or, at the Company’s election, Common Stock valued as set
forth in the Indenture, equal to 100% of the principal amount to be repurchased
(less any cash payments) (as set forth below), or a combination of cash and
Common Stock” with the words “equal to 100% of the principal amount to be
repurchased”.


(i)            The third paragraph in Section 3.1 of the Original
Indenture is hereby amended by deleting the words “whether payable in cash or
in shares of Common Stock or a combination thereof,”.


(j)            The third paragraph in Section 10.8 of the Original
Indenture is hereby amended by deleting the words “, repurchase or redemption”.


(k)           Section 14.1 of the Original Indenture is hereby amended
by deleting the words “, subject to the provisions of Section 14.3” in the
first sentence, deleting the second sentence, which states “At the option of
the Company, the Repurchase Price may be paid in cash, or subject to the
fulfillment by the Company of the conditions set forth in Section 14.3, by
delivery of shares of Common Stock having a fair market value to the Repurchase
Price (less any cash payments), or a combination of 


 


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cash and Common Stock.”, and replacing such second
sentence with the following sentence: “The Repurchase Price shall be paid in
cash.”


(l)            Section 14.2 of the Original Indenture is hereby amended
by deleting the words “but subject to the provisions of Section 14.3,” in the
first sentence, deleting the third sentence, which states “At the option of the
Company, the Designated Event Repurchase Price may be paid in cash or, subject
to the fulfillment by the Company of the conditions set forth in Section 14.3,
by delivery of shares of Common Stock having a fair market value equal to the
Designated Event Repurchase Price (less any cash payments), or a combination of
cash and Common Stock.”, and replacing such third sentence with the following
sentence: “The Designated Event Repurchase Price shall be paid in cash.”


(m)          Section 14.3 of the Original Indenture is hereby amended by
deleting all the text, including the heading, in the Section and replacing such
with the word “RESERVED”.  The entry for
Section 14.3 in the Table of Contents of the Original Indenture is hereby
amended by deleting the words “Conditions to the Company’s Election to Pay the
Repurchase Price or the Designated Event Repurchase Price in Common Stock” and
replacing such with the word “RESERVED”.


(n)           Section 14.4(1)(C) of the Original Indenture is hereby
amended by deleting the words “and whether the Repurchase Price, or the
Designated Event Repurchase Price, as the case may be, shall be paid by the
Company in cash or by delivery of shares of Common Stock, or a combination
thereof (and the applicable ratio of cash and Common Stock),”.


(o)           Section 14.4(1)(H) of the Original Indenture is hereby
amended by deleting the words “and, if the Security is a Restricted Securities
Certificate, the place or places that the Surrender Certificate required by
Section 14.4 shall be delivered,”.


(p)           The first sentence in Section 14.4(2) of the Original
Indenture is hereby amended by deleting the words “and, in the event that any
portion of the Repurchase Price or the Designated Event Repurchase Price, as
the case may be, shall be paid in shares of Common Stock, the name or names
(with addresses) in which the certificate or certificates for shares of Common
Stock shall be issued,”.


(q)           Section 14.4(4) of the Original Indenture is hereby
amended by deleting the words “in cash or shares of Common Stock, as provided
in Section 14.3,” and deleting the words “or, if shares of Common Stock are to
be paid, on the date that is 35 days after the date of the Company’s Notice,
subject to extension to comply with applicable law,”.


(r)            Section 14.4(7) of the Original Indenture is hereby
amended by deleting all the text in the Section and replacing such with the
word “RESERVED”.


(s)           Section 14.4(8) of the Original Indenture is hereby
amended by deleting all the text in the Section and replacing such with the
word “RESERVED”.


 


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(t)            Section 14.4(9) of the Original Indenture is hereby
amended by deleting all the text in the Section and replacing such with the
word “RESERVED”.


(u)           Section 14.4(10) of the Original Indenture is hereby
amended by deleting all the text in the Section and replacing such with the
word “RESERVED”.


(v)           Section 15.1(3) of the Original Indenture is hereby
amended by deleting all the text in the Section and replacing such with the
following:  “The Company shall pay the
Make Whole Premium in cash.”


(w)          Section 15.1(4) of the Original Indenture is hereby amended
by deleting all of the text in the Section except for the last paragraph.  Such paragraph is hereby amended by deleting
the penultimate sentence of the paragraph. 
The last sentence of such paragraph is hereby amended by deleting the
words “(X) shall notify the Holders of the Stock Price, Make Whole Premium
and the estimated number of Additional Shares per $1,000 original principal
amount of Securities” and replacing such with the following:  “shall notify the Holders of the Stock Price
and Make Whole Premium”.  The last
sentence of such paragraph is hereby further amended by deleting the words “and
(Y) shall notify the Holders promptly upon the opening of business on the
Designated Event Repurchase Date or Calculation Date, as the case may be, of
the number of Additional Shares (or, at the option of the Company, cash or
other securities, assets or property into which all or substantially all of the
shares of Common Stock have been converted as of the Effective Date as
described above) to be delivered in respect of the Make Whole Premium, if any,
in connection with such Fundamental Change.”


(x)            The first sentence in Section 15.2 of the Original
Indenture is hereby amended by deleting the words “(which, at the option of the
Company, may be in the form the Company otherwise is entitled to deliver in
respect of Securities that are tendered upon a Designated Event or that are
converted”.  The second sentence in such
Section is hereby amended by deleting the words “in respect of cash and
otherwise delivering entitlements to securities, other assets or property”.  The last sentence in such Section is hereby
amended by deleting the words “or shares of Common Stock”.


(y)           Annex B of the Original Indenture is hereby amended by
deleting the words “or 14.3(9)” in the introductory text and deleting both
instances of the words “or repurchase” in the text immediately below the
heading “2.25% CONVERTIBLE SENIOR NOTES DUE JANUARY 15, 2025”.


Section 2.  Effect On The Original Indenture


Except as amended by this
Supplement Indenture, the Original Indenture shall remain in full force and
effect and is hereby ratified and confirmed.


Section 3.  Governing Law


 


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THIS SUPPLEMENTAL INDENTURE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, THE UNITED STATES OF AMERICA.


Section 4.  Defined Terms


Unless otherwise indicated,
capitalized terms used in this Supplemental Indenture and not defined shall
have the respective meanings assigned to them in the Original Indenture.


Section 5.  Trustee Disclaimer


The recitals contained in
this Supplemental Indenture shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Supplemental
Indenture.


Section 6.  Counterparts and Method of Execution


This instrument may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.


Section 7.  Effect of Headings


Section headings herein are
for convenience only and shall not affect the construction hereof.


Section
8.  Separability Clause


In
case any provision of this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Supplemental Indenture to be duly executed as
of the day and year first above written. 


	
   

  	
  PRICELINE.COM
  INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffery H. Boyd

  
	
   

  	
   

  	
  Name:  Jeffery H. Boyd

  
	
   

  	
   

  	
  Title:    Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMERICAN
  STOCK TRANSFER & TRUST COMPANY, AS TRUSTEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Herbert J. Lemmer

  
	
   

  	
   

  	
  Name:  Herbert J. Lemmer

  
	
   

  	
   

  	
  Title:     Vice President

  



 


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