Exhibit
4.6


 


EXECUTION
COPY


 


priceline.com
Incorporated


 


2.25%
Convertible Senior Notes due January 15, 2025


 


Registration Rights Agreement


 


	
   

  	
  June 28, 2004

  
	
  Goldman, Sachs &
  Co.,

  	
   

  
	
  Morgan Stanley &
  Co. Incorporated

  	
   

  
	
  c/o Goldman, Sachs
  & Co.

  	
   

  
	
  85 Broad Street

  	
   

  
	
  New York, New York
  10004

  	
   

  



 


Ladies and Gentlemen:


 


Priceline.com
Incorporated (the “Company”), proposes to issue and sell to the Purchasers (as
defined herein) upon the terms set forth in the Purchase Agreement (as defined
herein) its 2.25% Convertible Senior Notes due January 15, 2025  (the “Securities”).  As an inducement to the Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company  agrees with the Purchasers for the benefit of Holders (as
defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:


 


1.                                       Definitions.


 


(a)                                  Capitalized
terms used herein without definition shall have the meanings ascribed to them
in the Purchase Agreement.  As used in
this Agreement, the following defined terms shall have the following meanings:


 


“Affiliate”
of any specified person means any other person which, directly or indirectly,
is in control of, is controlled by, or is under common control with such
specified person.  For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.


 


“Closing
Date” means the First Time of Delivery as defined in the
Purchase Agreement.


 


“Commission”
means the United States Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities
Act, whichever is the relevant statute for the particular purpose.


 


“Common
Stock” means the Company’s common stock, par value $0.008 per
share.


 


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“DTC”
means The Depository Trust Company.


 


“Effective
Date” has the meaning assigned thereto in
Section 2(b)(i) hereof.


 


“Effective
Failure” has the meaning assigned thereto in
Section 7(b) hereof.


 


“Effectiveness
Period” has the meaning assigned thereto in Section 2(b)(i)
hereof.


 


“Effective
Time” means the time at which the Commission declares the
Shelf Registration Statement effective or at which the Shelf Registration
Statement otherwise becomes effective.


 


“Electing
Holder” has the meaning assigned thereto in
Section 3(a)(iii) hereof.


 


“Exchange
Act” means the United States Securities Exchange Act of 1934,
as amended.


 


“Holder”
means any person that is the record owner of Registrable Securities (and
includes any person that has a beneficial interest in any Registrable Security
in book-entry form).


 


“Indenture”
means the Indenture, dated as of June 28, 2004, between
the Company and American Stock Transfer and Trust Company, as amended and
supplemented from time to time in accordance with its terms.


 


“Liquidated
Damages” has the meaning assigned thereto in
Section 7(a) hereof.


 


“Managing
Underwriters” means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.


 


“NASD
Rules” means the Rules of the National Association of
Securities Dealers, Inc., as amended from time to time.


 


“Notice
and Questionnaire” means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of Appendix
A hereto.


 


The term “person” means an individual, partnership,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.


 


“Prospectus”
means the prospectus (including, without limitation, any preliminary
prospectus, any final prospectus and any prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act) included in the
Shelf Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.


 


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“Purchase
Agreement” means the purchase agreement, dated June 22,
2004, between the Purchasers and the Company relating to the Securities.


 


“Purchasers”
means the Purchasers named in Schedule I to the Purchase
Agreement.


 


“Registrable
Securities” means all or any portion of the Securities issued
from time to time under the Indenture in registered form and the shares of
Common Stock issuable upon conversion, repurchase or redemption of such
Securities; provided, however, that a security ceases to be a
Registrable Security when it is no longer a Restricted Security.


 


“Registration
Default” has the meaning assigned thereto in
Section 7(a) hereof.


 


“Restricted
Security” means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock that (i) has been effectively registered under the Securities Act and
sold in a manner contemplated by the Shelf Registration Statement, (ii) has
been transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto) or (iii) has otherwise been
transferred and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5 of the Indenture.


 


“Rules
and Regulations” means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.


 


“Securities
Act” means the United States Securities Act of 1933, as
amended.


 


“Shelf
Registration” means a registration effected pursuant to
Section 2 hereof.


 


“Shelf
Registration Statement” means a “shelf” registration
statement filed under the Securities Act providing for the registration of, and
the sale on a continuous or delayed basis by the Holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission, filed by the Company
pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration statement.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.


 


The term “underwriter” means any underwriter of
Registrable Securities in connection with an offering thereof under a Shelf
Registration Statement.


 


(b)                                 Wherever
there is a reference in this Agreement to a percentage of the “principal
amount” of Registrable Securities or to a percentage of Registrable Securities,
Common Stock


 


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shall be treated as
representing the principal amount of Securities that was surrendered for
conversion or exchange in order to receive such number of shares of Common
Stock.


 


2.                                       Shelf Registration.


 


(a)                                  The
Company shall, no later than 90 calendar days following the Closing Date, file
with the Commission a Shelf Registration Statement relating to the offer and
sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement and, thereafter, shall use its best
efforts to cause such Shelf Registration Statement to be declared effective
under the Securities Act no later than 180 calendar days following the Closing
Date; provided, however, that the Company may, upon
written notice to all Holders, postpone having the Shelf Registration Statement
declared effective for a reasonable period not to exceed 90 days if the Company
possesses material non-public information, the disclosure of which would have a
material adverse effect on the Company and its subsidiaries taken as a whole; provided, further,
however, that no Holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement or to use the Prospectus forming a part thereof for resales of
Registrable Securities unless such Holder is an Electing Holder.


 


(b)                                 The
Company shall use its best efforts:


 


(i)                                     to
keep the Shelf Registration Statement continuously effective under the
Securities Act in order to permit the Prospectus forming a part thereof to be
usable by Holders until the earliest of (1) the sale of all Registrable
Securities registered under the Shelf Registration Statement; (2) the
expiration of the period referred to in Rule 144(k) of the Securities with
respect to all Registrable Securities held by Persons that are not Affiliates
of the Company; and (3) two years from the date (the “Effective Date”) such
Shelf Registration Statement is declared effective (such period being referred
to herein as the “Effectiveness Period”);


 


 (ii)                               after the Effective Time
of the Shelf Registration Statement, promptly upon the request of any Holder of
Registrable Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such Holder to use the Prospectus forming a part
thereof for resales of Registrable Securities, including, without limitation,
any action necessary to identify such Holder as a selling securityholder in the
Shelf Registration Statement; provided,
however, that nothing in this subparagraph shall relieve such Holder
of the obligation to return a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(a)(ii) hereof; and


 


(iii)                               if
at any time the Securities, pursuant to Article XII of the Indenture, are
convertible into securities other than Common Stock, to cause, or to cause any
successor under the Indenture to cause, such securities to be included in the
Shelf Registration Statement no later than the date on which the Securities may
then be convertible into such securities.


 


The Company shall be
deemed not to have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if the Company voluntarily
takes any action that would result in Holders of Registrable Securities covered
thereby not being able to offer and sell


 


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any of such Registrable
Securities during that period, unless such action is (A) required by applicable
law and the Company thereafter promptly complies with the requirements of
paragraph 3(j) below or (B) permitted pursuant to Section 2(c) below.


 


(c)                                  The
Company may suspend the use of the Prospectus for a period not to exceed 30
days in any 90-day period or an aggregate of 90 days in any 12-month period if
the Board of Directors of the Company shall have determined in good faith that
because of valid business reasons (not including avoidance of the Company’s
obligations hereunder), including the acquisition or divestiture of assets,
pending corporate developments, public filings with the Commission and similar
events, it is in the best interests of the Company to suspend such use, and
prior to suspending such use the Company provides the Holders with written
notice of such suspension, which notice need not specify the nature of the
event giving rise to such suspension.


 


3.                                       Registration Procedures.  In connection with the Shelf Registration
Statement, the following provisions shall apply:


 


 (a) (i)                 Not less than 30 calendar days prior
to the Effective Time of the Shelf Registration Statement, the Company shall
mail the Notice and Questionnaire to the Holders of Registrable
Securities.  No Holder shall be entitled
to be named as a selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no Holder shall be entitled to use the Prospectus
forming a part thereof for resales of Registrable Securities at any time,
unless such Holder has returned a completed and signed Notice and Questionnaire
to the Company by the deadline for response set forth therein; provided, however, Holders of Registrable
Securities shall have at least 28 calendar days from the date on which the
Notice and Questionnaire is first mailed to such Holders to return a completed
and signed Notice and Questionnaire to the Company.


 


(ii)                                  After
the Effective Time of the Shelf Registration Statement, the Company shall, upon
the request of any Holder of Registrable Securities that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such Holder.  The Company shall not be required to take any
action to name such Holder as a selling securityholder in the Shelf
Registration Statement or to enable such Holder to use the Prospectus forming a
part thereof for resales of Registrable Securities until such Holder has
returned a completed and signed Notice and Questionnaire to the Company.


 


(iii)                               The
term “Electing Holder” shall mean any Holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(i) or 3(a)(ii) hereof.


 


(b)                                 The
Company shall furnish to each Electing Holder, prior to the Effective Time, a
copy of the Shelf Registration Statement initially filed with the Commission,
and shall furnish to such Holders, promptly after the filing thereof with the
Commission, copies of each amendment thereto and each amendment or supplement,
if any, to the Prospectus included therein.


 


(c)                                  The
Company shall promptly take such action as may be necessary so that (i) each of
the Shelf Registration Statement and any amendment thereto and the Prospectus
forming a part thereof and any amendment or supplement thereto (and each report
or other


 


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document incorporated
therein by reference in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and regulations
thereunder, (ii) each of the Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) each of the
Prospectus forming a part of the Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not at any time during the
Effectiveness Period include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however, that the Company shall
not be required to take such action in respect of the Shelf Registration
Statement or any amendment thereto or of the Prospectus or any amendment or
supplement to the Prospectus if the Board of Directors of the Company has made
a determination pursuant to Section 2(c) for so long as such suspension is
continuing.


 


(d)                                 The
Company shall promptly advise each Electing Holder, and shall confirm such
advice in writing if so requested by any such Electing Holder:


 


(i)                                     when
a Shelf Registration Statement and any amendment thereto has been filed with
the Commission and when a Shelf Registration Statement or any post-effective
amendment thereto has become effective, and in the case of the filing of and
the effectiveness of the initial Shelf Registration Statement (not including
any post-effective amendments thereto) making a public announcement thereof by
release made to Reuters Economic Services and Bloomberg Business News;


 


(ii)                                  of
any request by the Commission for amendments or supplements to the Shelf
Registration Statement or the Prospectus included therein or for additional
information;


 


(iii)                               of
the issuance by the Commission of any stop order suspending the effectiveness
of the Shelf Registration Statement or the initiation of any proceedings for
such purpose;


 


(iv)                              of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the securities included in the Shelf Registration
Statement for sale in any jurisdiction or the initiation of any proceeding for
such purpose; and


 


(v)                                 of
the occurrence of any event or the existence of any state of facts that
requires the making of any changes in the Shelf Registration Statement or the
Prospectus included therein so that, as of such date, such Shelf Registration
Statement and Prospectus do not contain an untrue statement of a material fact
and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to such Holders to suspend the use of
the Prospectus until the requisite changes have been made).


 


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(e)                                  The
Company shall use its best efforts to prevent the issuance, and if issued to
obtain the withdrawal at the earliest possible time, of any order suspending
the effectiveness of the Shelf Registration Statement.


 


(f)                                    The
Company shall furnish to each Electing Holder, without charge, at least one
copy of the Shelf Registration Statement and all post-effective amendments
thereto, including financial statements and schedules, and, if such Electing
Holder so requests in writing, all reports, other documents and exhibits that
are filed with or incorporated by reference in the Shelf Registration
Statement.


 


(g)                                 The
Company shall, during the Effectiveness Period, deliver to each Electing
Holder, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such Electing Holder may reasonably request;
and the Company consents (except during the periods specified in Section 2(c)
above or during the continuance of any event or the existence of any state of
facts described in Section 3(d)(v) above) to the use of the Prospectus and
any amendment or supplement thereto by each of the Electing Holders in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus and any amendment or supplement thereto during the Effectiveness
Period.


 


(h)                                 Prior
to any offering of Registrable Securities pursuant to the Shelf Registration
Statement, the Company shall (i) register or qualify or cooperate with the
Electing Holders and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale
under the securities or “blue sky” laws of such jurisdictions within the United
States as any Electing Holder may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for so long as
may be necessary to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement, and (iii) take any and all other actions necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in no event shall the
Company be obligated to (A) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 3(h) or (B) file any general consent to
service of process in any jurisdiction where it is not as of the date hereof so
subject.


 


(i)                                     Unless
any Registrable Securities shall be in book-entry only form, the Company shall
cooperate with the Electing Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
pursuant to the Shelf Registration Statement, which certificates, if so
required by any securities exchange upon which any Registrable Securities are
listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such permitted denominations
and registered in such names as Electing Holders may request in connection with
the sale of Registrable Securities pursuant to the Shelf Registration
Statement.


 


(j)                                     Upon
the occurrence of any event or the existence of any state of facts contemplated
by paragraph 3(d)(v) above, the Company shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or supplement to
the related


 


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Prospectus or file any
other required document so that, as thereafter delivered to Purchasers of the
Registrable Securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
provided, however, that the Company shall not be required to file
such amendment, supplement or document if the Board of Directors of the Company
has made a determination pursuant to Section 2(c) for so long as such
suspension is continuing.  If the Company
notifies the Electing Holders of the occurrence of any event or the existence
of any state of facts contemplated by Section 2(c) or paragraph 3(d)(v)
above, the Electing Holder shall suspend the use of the Prospectus until the
requisite changes to the Prospectus have been made.


 


(k)                                  Not
later than the Effective Time of the Shelf Registration Statement, the Company
shall provide a CUSIP number for the Registrable Securities that are debt
securities.


 


(l)                                     The
Company shall use its best efforts to comply with all applicable Rules and
Regulations, and to make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after (i) the
effective date (as defined in Rule 158(c) under the Securities Act) of the
Shelf Registration Statement, (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement, and (iii) the date of each
filing by the Company with the Commission of an Annual Report on Form 10-K that
is incorporated by reference in the Shelf Registration Statement, an earning
statement of the Company and its subsidiaries complying with Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158).


 


(m)                               Not
later than the Effective Time of the Shelf Registration Statement, the Company
shall cause the Indenture to be qualified under the Trust Indenture Act; in
connection with such qualification, the Company shall cooperate with the
Trustee under the Indenture and the Holders (as defined in the Indenture) to
effect such changes to the Indenture as may be required for such Indenture to
be so qualified in accordance with the terms of the Trust Indenture Act; and
the Company shall execute, and shall use all reasonable efforts to cause the
Trustee to execute, all documents that may be required to effect such changes
and all other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner.  In the event that any such amendment or
modification referred to in this Section 3(m) involves the appointment of
a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.


 


(n)                                 In
the event of an underwritten offering conducted pursuant to Section 6
hereof, the Company shall, if requested, promptly include or incorporate in a
Prospectus supplement or post-effective amendment to the Shelf Registration
Statement such information as the Managing Underwriters reasonably agree should
be included therein and to which the Company does not reasonably object and
shall make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after it is notified of the matters to be
included or incorporated in such Prospectus supplement or post-effective
amendment.


 


(o)                                 The
Company shall enter into such customary agreements (including an underwriting
agreement in customary form in the event of an underwritten offering conducted
pursuant to Section 6 hereof) and take all other appropriate action in
order to expedite and


 


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facilitate the
registration and disposition of the Registrable Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures substantially identical to
those set forth in Section 5 hereof with respect to all parties to be
indemnified pursuant to Section 5 hereof.


 


(p)                                 The
Company shall:


 


(i)(A)  make reasonably available for inspection by
the Electing Holders, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement, and any attorney, accountant or other
agent retained by such Electing Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries, and (B) cause the Company’s officers,
directors and employees to supply all information reasonably requested by such
Electing Holders or any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case, as is customary
for similar due diligence examinations; provided,
however, that all records,
information and documents that are designated in writing by the Company, in
good faith, as confidential shall be kept confidential by such Electing Holders
and any such underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or such
records, information or documents become available to the public generally or
through a third party without an accompanying obligation of confidentiality;
and provided further that, if the
foregoing inspection and information gathering would otherwise disrupt the
Company’s conduct of its business, such inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf of the
Electing Holders and the other parties entitled thereto by one counsel
designated by and on behalf of the Electing Holders and other parties;


 


(ii)                                  in
connection with any underwritten offering conducted pursuant to Section 6
hereof, make such representations and warranties to the Electing Holders
participating in such underwritten offering and to the Managing Underwriters,
in form, substance and scope as are customarily made by the Company to
underwriters in primary underwritten offerings of equity and convertible debt
securities and covering matters including, but not limited to, those set forth
in the Purchase Agreement;


 


(iii)                               in
connection with any underwritten offering conducted pursuant to Section 6
hereof, obtain opinions of counsel to the Company (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters) addressed to each Electing Holder participating in such
underwritten offering and the underwriters, covering such matters as are
customarily covered in opinions requested in primary underwritten offerings of
equity and convertible debt securities and such other matters as may be
reasonably requested by such Electing Holders and underwriters (it being agreed
that the matters to be covered by such opinions shall include, without
limitation a statement by such counsel that nothing came to the attention of
such counsel in the course of their review that the Shelf Registration
Statement and the Prospectus, including the documents incorporated by reference
therein (other than the financial statements or other financial data derived
from accounting records therein, as to which such counsel need express no
opinion or belief),


 


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as of the
Effective Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein necessary in order to make the statements therein not
misleading;


 


(iv)                              in
connection with any underwritten offering conducted pursuant to Section 6
hereof, obtain “cold comfort” letters and updates thereof from the independent
public accountants of the Company (and, if necessary, from the independent
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Shelf Registration Statement), addressed to
each Electing Holder participating in such underwritten offering (if such
Electing Holder has provided such letter, representations or documentation, if
any, required for such cold comfort letter to be so addressed) and the
underwriters, in customary form and covering matters of the type customarily
covered in “cold comfort” letters in connection with primary underwritten
offerings;


 


(v)                                 in
connection with any underwritten offering conducted pursuant to Section 6
hereof, deliver such documents and certificates as may be reasonably requested
by any Electing Holders participating in such underwritten offering and the
Managing Underwriters, if any, including, without limitation, certificates to
evidence compliance with Section 3(j) hereof and with any conditions
contained in the underwriting agreement or other agreements entered into by the
Company.


 


(q)                                 The
Company will use its best efforts to cause the Common Stock issuable upon
conversion of the Securities to be listed for quotation on the Nasdaq National
Market System or other stock exchange or trading system on which the Common
Stock primarily trades on or prior to the Effective Time of the Shelf
Registration Statement hereunder.


 


(r)                                    In
the event that any broker-dealer registered under the Exchange Act shall be an
“affiliate” (as defined in Rule 2720(b)(1) of the NASD Rules (or any successor
provision thereto)) of the Company or has a “conflict of interest” (as defined
in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and
such broker-dealer shall underwrite, participate as a member of an underwriting
syndicate or selling group or assist in the distribution of any Registrable
Securities covered by the Shelf Registration Statement, whether as a Holder of
such Registrable Securities or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, the Company shall assist
such broker-dealer in complying with the requirements of the NASD Rules,
including, without limitation, by (A) engaging a “qualified independent
underwriter” (as defined in Rule 2720(b)(15) of the NASD Rules (or any
successor provision thereto)) to participate in the preparation of the
registration statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and to recommend the public
offering price of such Registrable Securities, (B) indemnifying such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof, and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the NASD Rules.


 


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(s)                                  The
Company shall use its best efforts to take all other steps necessary to effect
the registration, offering and sale of the Registrable Securities covered by
the Shelf Registration Statement contemplated hereby.


 


4.                                       Registration Expenses.  Except as otherwise provided in
Section 3, the Company shall bear all fees and expenses incurred in
connection with the performance of its obligations under Sections 2, 3 and 6
hereof and shall bear or reimburse the Electing Holders for the reasonable fees
and disbursements of a single counsel selected by a plurality of all Electing
Holders who own an aggregate of not less than 25% of the Registrable Securities
covered by the Shelf Registration Statement to act as counsel therefore in
connection therewith.  Each Electing
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Electing Holder’s
Registrable Securities pursuant to the Shelf Registration Statement.


 


5.                                       Indemnification and Contribution.


 


(a)                                  Indemnification by the Company. Upon the
registration of the Registrable Securities pursuant to Section 2 hereof,
the Company shall indemnify and hold harmless each Electing Holder and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities, and each of their
respective officers and directors and each person who controls such Electing
Holder, underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes referred to as an “Indemnified
Person”) against any losses, claims, damages or liabilities, joint or several,
to which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Shelf Registration
Statement under which such Registrable Securities are to be registered under
the Securities Act, or any Prospectus contained therein or furnished by the
Company to any Indemnified Person, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company hereby agrees to reimburse
such Indemnified Person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such action or claim as
such expenses are incurred; provided,
however, that the Company shall
not be liable to any such Indemnified Person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in such Shelf Registration Statement or Prospectus, or amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Indemnified Person expressly for use therein.


 


(b)                                 Indemnification by the Electing Holders and any
Agents and Underwriters.  Each
Electing Holder agrees, as a consequence of the inclusion of any of such
Electing Holder’s Registrable Securities in such Shelf Registration Statement,
and each underwriter, selling agent or other securities professional, if any,
which facilitates the disposition of Registrable Securities shall agree, as a consequence
of facilitating such disposition of Registrable Securities, severally and not
jointly, to (i) indemnify and hold harmless the Company, its directors,
officers who sign


 


11
















 


any Shelf Registration Statement
and each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities to which the Company or such
other persons may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such Shelf Registration Statement or
Prospectus, or any amendment or supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Electing Holder, underwriter, selling agent or other securities
professional expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.


 


(c)                                  Notices of Claims, Etc.  Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by subsection (a) or (b) above.  In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party under this Section 5 for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.


 


(d)                                 Contribution.  If the indemnification provided for in this
Section 5 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the


 


12
















 


indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. 
The relative fault of such indemnifying party and indemnified party
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such indemnifying
party or by such indemnified party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.  The parties
hereto agree that it would not be just and equitable if contribution pursuant
to this Section 5(d) were determined by pro rata allocation (even if the
Electing Holders or any underwriters, selling agents or other securities
professionals or all of them were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in this Section 5(d).  The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.  The
obligations of the Electing Holders and any underwriters, selling agents or
other securities professionals in this Section 5(d) to contribute shall be
several in proportion to the percentage of principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.


 


(e)                                  Notwithstanding
any other provision of this Section 5, in no event will any (i) Electing
Holder be required to undertake liability to any person under this
Section 5 for any amounts in excess of the dollar amount of the proceeds
to be received by such Holder from the sale of such Holder’s Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) pursuant to any Shelf Registration Statement under which such
Registrable Securities are to be registered under the Securities Act and (ii)
underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.


 


(f)                                    The
obligations of the Company under this Section 5 shall be in addition to
any liability which the Company may otherwise have to any Indemnified Person
and the obligations of any Indemnified Person under this Section 5 shall
be in addition to any liability which such Indemnified Person may otherwise
have to the Company.  The remedies
provided in this Section 5 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to an indemnified party at
law or in equity.


 


6.                                       Underwritten Offering.  Any Holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided
that (i) the Electing Holders of at least 33-1/3% in aggregate principal amount
of the Registrable Securities then covered by the Shelf Registration Statement
shall request such an offering and (ii) at least such aggregate principal
amount of such Registrable Securities shall be included in such offering; and provided further that the Company shall
not be obligated to cooperate with


 


13
















 


more than one
underwritten offering during the Effectiveness Period.  Upon receipt of such a request, the Company
shall provide all Holders of Registrable Securities written notice of the
request, which notice shall inform such Holders that they have the opportunity
to participate in the offering.  In any
such underwritten offering, the investment banker or bankers and manager or
managers that will administer the offering will be selected by, and the
underwriting arrangements with respect thereto (including the size of the
offering) will be approved by, the holders of a majority of the Registrable
Securities to be included in such offering; provided,
however, that such investment
bankers and managers and underwriting arrangements must be reasonably satisfactory
to the Company.  No Holder may
participate in any underwritten offering contemplated hereby unless (a) such
Holder agrees to sell such Holder’s Registrable Securities to be included in
the underwritten offering in accordance with any approved underwriting
arrangements, (b) such Holder completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements, and (c) if such Holder is not then an Electing
Holder, such Holder returns a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(a)(ii) hereof within a reasonable
amount of time before such underwritten offering.  The Holders participating in any underwritten
offering shall be responsible for any underwriting discounts and commissions
and fees and, subject to Section 4 hereof, expenses of their own
counsel.  The Company shall pay all
expenses customarily borne by issuers in an underwritten offering, including
but not limited to filing fees, the fees and disbursements of its counsel and
independent public accountants and any printing expenses incurred in connection
with such underwritten offering. 
Notwithstanding the foregoing or the provisions of Section 3(n)
hereof, upon receipt of a request from the Managing Underwriter or a
representative of holders of a majority of the Registrable Securities to be
included in an underwritten offering to prepare and file an amendment or
supplement to the Shelf Registration Statement and Prospectus in connection
with an underwritten offering, the Company may delay the filing of any such
amendment or supplement for up to 90 days if the Board of Directors of the
Company shall have determined in good faith that the Company has a bona fide
business reason for such delay.


 


7.                                       Liquidated
Damages.


 


(a)                                  Notwithstanding
any postponement of effectiveness permitted by Section 2(a) hereof, if (i)
on or prior to the 90th day following the Closing Date, a Shelf Registration
Statement has not been filed with the Commission or (ii) on or prior to the
180th day following the Closing Date, such Shelf Registration Statement is not
declared effective by the Commission (each, a “Registration Default”), the
Company shall be required to pay liquidated damages (“Liquidated Damages”),
from and including the day following such Registration Default until such Shelf
Registration Statement is either so filed or so filed and subsequently declared
effective, as applicable, at a rate per annum equal to an additional
one-quarter of one percent (0.25%) of the principal amount of Registrable
Securities, to and including the 90th day following such Registration Default
and one-half of one percent (0.50%) thereof from and after the 91st day
following such Registration Default.


 


(b)                                 In
the event that (i) the Shelf Registration Statement ceases to be effective,
(ii) the Company suspends the use of the Prospectus pursuant to
Section 2(c) or 3(j) hereof, (iii) the Holders are not authorized to use
the Prospectus pursuant to Section 3(g) hereto or (iv) the


 


14
















 


Holders are otherwise
prevented or restricted by the Company from effecting sales pursuant to the
Shelf Registration Statement (an “Effective Failure”) for more than 30 days,
whether or not consecutive, in any 90-day period, or for more than 90 days,
whether or not consecutive, during any 12-month period, then the Company shall
pay Liquidated Damages at a rate per annum equal to an additional one-half of
one percent (0.50%) of the principal amount of Registrable Securities from the
31st day of the applicable 90-day period or the 91st day of the
applicable 12-month period, as the case may be, that any such Effective Failure
has existed until the earlier of (1) the time the Shelf Registration again
becomes effective or the Holders of Registrable Securities are again able to
make sales under the Shelf Registration Statement or (2) the expiration of the
Effectiveness Period.


 


(c)                                  Any
amounts to be paid as Liquidated Damages pursuant to paragraphs (a) or (b) of
this Section 7 shall be paid in cash semi-annually in arrears, with the
first semi-annual payment due on the first interest payment date following the
date on which the liquidated damages began to accrue (as defined in the
Indenture), as applicable, following the date of such Registration Default or
Effective Failure, as applicable.  Such
Liquidated Damages will accrue (1) in respect of the Securities at the rates
set forth in paragraphs (a) or (b) of this Section 7, as applicable, on
the principal amount of the Securities and (2) in respect of the Common Stock
issued upon conversion of the Securities, at the rates set forth in paragraphs
(a) or (b) of this Section 7, as applicable, applied to the Conversion
Price (as defined in the Indenture) at that time.


 


(d)                                 Except
as provided in Section 8(b) hereof, the Liquidated Damages as set forth in
this Section 7 shall be the exclusive monetary remedy available to the
Holders of Registrable Securities for such Registration Default or Effective
Failure. In no event shall the Company be required to pay Liquidated Damages in
excess of the applicable maximum amount of one-half of one percent (0.50%) set
forth above, regardless of whether one or multiple Registration Defaults or
Effective Failures exist.


 


8.                                       Miscellaneous.


 


(a)                                  Other Registration Rights.  The Company may grant registration rights
that would permit any person that is a third party the right to piggy-back on
any Shelf Registration Statement, provided
that if the Managing Underwriter of any underwritten offering conducted
pursuant to Section 6 hereof notifies the Company and the Electing Holders
that the total amount of securities which the Electing Holders and the holders
of such piggy-back rights intend to include in any Shelf Registration Statement
is so large as to materially threaten the success of such offering (including
the price at which such securities can be sold), then the amount, number or
kind of securities to be offered for the account of holders of such piggy-back
rights will be reduced to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount, number and kind
recommended by the Managing Underwriter prior to any reduction in the amount of
Registrable Securities to be included in such Shelf Registration Statement.


 


(b)                                 Specific Performance.  The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the Holders from time to time
may be irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such Holders, in addition to any other


 


15
















 


remedy to which they may
be entitled at law or in equity and without limiting the remedies available to
the Electing Holders under Section 7 hereof, shall be entitled to compel
specific performance of the obligations of the Company under this Registration
Rights Agreement in accordance with the terms and conditions of this
Registration Rights Agreement, in any court of the United States or any State
thereof having jurisdiction.


 


(c)                                  Amendments and Waivers.  This Agreement, including this
Section 8(c), may be amended, and waivers or consents to departures from
the provisions hereof may be given, only by a written instrument duly executed
by the Company and the holders of a majority in aggregate principal amount of
Registrable Securities then outstanding. 
Each Holder of Registrable Securities outstanding at the time of any
such amendment, waiver or consent or thereafter shall be bound by any
amendment, waiver or consent effected pursuant to this Section 8(c),
whether or not any notice, writing or marking indicating such amendment, waiver
or consent appears on the Registrable Securities or is delivered to such
Holder.


 


(d)                                 Notices. 
All notices and other communications provided for or permitted hereunder
shall be given as provided in the Indenture.


 


(e)                                  Parties in Interest.  The
parties to this Agreement intend that all Holders of Registrable Securities
shall be entitled to receive the benefits of this Agreement and that any
Electing Holder shall be bound by the terms and provisions of this Agreement by
reason of such election with respect to the Registrable Securities which are
included in a Shelf Registration Statement. 
All the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto and any Holder from time to time
of the Registrable Securities to the aforesaid extent.  In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be
entitled to receive the benefits of and, if an Electing Holder, be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement to the aforesaid extent.


 


(f)                                    Counterparts.  This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.


 


(g)                                 Headings. 
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.


 


(h)                                 Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.


 


(i)                                     Severability.  In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by law.


 


16
















 


(j)                                     Survival. 
The respective indemnities, agreements, representations, warranties and
other provisions set forth in this Agreement or made pursuant hereto shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Electing
Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.


 


17
















 


Please confirm
that the foregoing correctly sets forth the agreement between the Company and
you.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  priceline.com
  Incorporated

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffery H. Boyd

  	
   

  
	
   

  	
   

  	
   Name: 

  	
  Jeffery H. Boyd

  
	
   

  	
   

  	
   Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
  Accepted as of the date
  hereof:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Goldman, Sachs &
  Co.

  	
   

  	
   

  
	
  Morgan Stanley &
  Co. Incorporated

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Goldman, Sachs
  & Co.

  	
   

  	
   

  	
   

  
	
  (Goldman,
  Sachs & Co.)

  	
   

  	
   

  
								



 


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