-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NMIZq7Q9YQ+aizKPMLlmJ5Ovrujtsdf8bswYk0kDsQSIuQE2RAS4zSwe8H/xl8OX E1lw0tqot9qaf1QZ1cFdAQ== 0000950130-01-502295.txt : 20010612 0000950130-01-502295.hdr.sgml : 20010612 ACCESSION NUMBER: 0000950130-01-502295 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010611 GROUP MEMBERS: CHEUNG KONG (HOLDINGS) LIMITED GROUP MEMBERS: FORTHCOMING ERA LIMITED GROUP MEMBERS: HUTCHISON WHAMPOA LTD /WAV GROUP MEMBERS: POTTON RESOURCES LIMITED GROUP MEMBERS: PRIME PRO GROUP LIMITED GROUP MEMBERS: ULTIMATE PIONEER LIMITED SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PRICELINE COM INC CENTRAL INDEX KEY: 0001075531 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 061528493 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-56083 FILM NUMBER: 1658816 BUSINESS ADDRESS: STREET 1: 800 CONNECTICUT AVE CITY: NORWALK STATE: CT ZIP: 06854 BUSINESS PHONE: 2037053000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HUTCHISON WHAMPOA LTD /WAV CENTRAL INDEX KEY: 0000933662 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: HUTCHISON HOUSE 22ND FLOOR CITY: HONG KONG STATE: K3 ZIP: 00000 BUSINESS PHONE: 8522128118 MAIL ADDRESS: STREET 1: 22ND FL HUTCHISON HOUSE STREET 2: 10 HARCOURT RD CITY: HONG KONG STATE: K3 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: HUTCHINSON WHAMPOA LTD /WAV DATE OF NAME CHANGE: 19971204 SC 13D/A 1 dsc13da.txt AMENDMENT #1 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO.1 TO SCHEDULE 13D Under the Securities Exchange Act of 1934 priceline.com Incorporated -------------------------- (Name of Issuer) Common Stock, par value $0.008 per share ---------------------------------------- (Title of Class of Securities) 741503106 --------- (CUSIP Number) Edith Shih Hutchison Whampoa Limited 22nd Floor, Hutchison House 10 Harcourt Road Hong Kong (852-2128-1188) __________ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: John A. Otoshi Dewey Ballantine LLP Suite 701 Edinburgh Tower, The Landmark 15 Queen's Road Central Hong Kong (852-2509-7000) __________ June 5, 2001 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box _____. SCHEDULE 13D CUSIP NO.741503106 ----------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON HUTCHISON WHAMPOA LIMITED Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Hong Kong - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 17,546,622 (See Item 6) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 17,546,622 (See Item 6) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 17,546,622 (See Item 6) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 8.6% (See Items 5 and 6) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 HC, CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO.741503106 ----------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON FORTHCOMING ERA LIMITED - Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 AF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 British Virgin Islands - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 17,546,622 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 17,546,622 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 17,546,622 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 8.6% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO.741503106 ----------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON ULTIMATE PIONEER LIMITED - Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 AF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 British Virgin Islands - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY -0- (See Item 6) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 -0- (See Item 6) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 -0- (See Item 6) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 0% (See Items 5 and 6) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO.741503106 ----------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON CHEUNG KONG (HOLDINGS) LIMITED - Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Hong Kong - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 35,093,244 (including shares disclaimed, set 11 below) (see Item 6) EACH ----------------------------------------------------------- SOLE DISPOSITIVE POWER REPORTING 9 PERSON -0- ----------------------------------------------------------- WITH SHARED DISPOSITIVE POWER 10 35,093,244 (including shares disclaimed, see 11 below) (See Item 6) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 35,093,244, of which Cheung Kong expressly disclaims beneficial ownership of 17,546,622 shares beneficially owned by Hutchison Whampoa Limited and Forthcoming Era Limited (See Item 6) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [X] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 17.1% (See Items 5 and 6) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 HC, CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO.741503106 ----------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON PRIME PRO GROUP LIMITED - Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 AF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 British Virgin Islands - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 17,546,622 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 17,546,622 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 17,546,622 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 8.6% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO.741503106 ----------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON POTTON RESOURCES LIMITED - Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 AF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 British Virgin Islands - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY -0- (See Item 6) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 -0- (See Item 6) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 -0- (See Item 6) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 0% (See Items 5 and 6) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 CO - ------------------------------------------------------------------------------ This statement constitutes Amendment No. 1 to the Schedule 13D originally filed with the Securities and Exchange Commission on February 26, 2001 and is filed by Hutchison Whampoa Limited, a Hong Kong company ("HWL"); Forthcoming Era Limited ("FEL"), a British Virgin Islands company and an indirect wholly-owned subsidiary of HWL; Ultimate Pioneer Limited ("UPL"), a British Virgin Islands company and an indirect wholly-owned subsidiary of HWL; Cheung Kong (Holdings) Limited ("Cheung Kong"), a Hong Kong company and a 49.97% shareholder of HWL; Prime Pro Group Limited ("PPG"), a British Virgin Islands company and an indirect wholly-owned subsidiary of Cheung Kong; and Potton Resources Limited ("PRL"), a British Virgin Islands company and an indirect wholly-owned subsidiary of Cheung Kong. Such Schedule 13D relates to the common stock, par value $0.008 per share ("Common Stock") of priceline.com Incorporated, a Delaware corporation (the "Issuer"). Terms defined in the Schedule 13D previously filed have the same meanings in this Amendment. Item 2. Identity and Background. ----------------------- Item 2 of the Schedule 13D as originally filed is hereby amended by adding thereto the following: UPL --- The principal business of UPL is investment holding. The registered office address of UPL is P.O. Box 957 Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of UPL and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule V hereto and are incorporated herein by reference. During the past five years, neither UPL nor, to the best knowledge of UPL, any of their executive officers or directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. PRL --- The principal business of PRL is investment holding. The registered office address of PRL is P.O. Box 957 Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of PRL and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule VI hereto and are incorporated herein by reference. During the past five years, neither PRL nor, to the best knowledge of PRL, any of their executive officers or directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Schedules I to IV are hereby amended and restated and attached hereto. Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- Item 3 of the Schedule 13D as originally filed is hereby amended by adding thereto the following: The total purchase price of the 12,514,011 shares to be purchased by UPL pursuant to the New Stock Purchase Agreement (as defined in Item 6) is US$54,686,228.07. The funds for UPL's purchase will be provided by HWL from working capital. The total purchase price of the 12,514,012 shares to be purchased by PRL pursuant to the New Stock Purchase Agreement (as defined in Item 6) is US$54,686,232.44. The funds for PRL's purchase will be provided by Cheung Kong from working capital. Item 5. Interest in Securities of the Issuer. ------------------------------------ Item 5 of the Schedule 13D as originally filed is hereby amended by adding thereto the following: (a) (b) Upon the closing of the purchase of shares under the New Stock Purchase Agreement (as defined in Item 6), HWL would beneficially own an aggregate of 30,060,633 shares of Common Stock, representing 14.6% of the Common Stock based on the 206,433,004 shares of Common Stock (representing shares of Common Stock outstanding as of May 31, 2001 plus shares upon the exercise of certain options by Jay S. Walker), and would have shared power over the voting and disposition of such shares. UPL would beneficially own 12,514,011 shares of Common Stock, representing 6.1% of the Common Stock, and would have shared power over the voting and disposition of such shares. PRL would beneficially own 12,514,012 shares of Common Stock, representing 6.1% of the Common Stock, and would have shared power over the voting and disposition of such shares. Cheung Kong would beneficially own an aggregate of 30,060,634 shares of Common Stock, representing 14.6% of the Common Stock, and would have shared power over the voting and disposition of such shares. In addition, Cheung Kong, through its ownership of 49.97% of the issued shares of HWL, may be deemed to share voting and dispositive power over the shares of Common Stock to be owned by HWL and UPL. However, pursuant to Rule 13d-4 under the Exchange Act, Cheung Kong expressly disclaims beneficial ownership of such shares. The shares reported above do not include 20,000 shares subject to options that are not exercisable within 60 days held by Ian Wade, who was nominated by FEL to the Issuer's Board of Directors. Except as described in Item 6, none of UPL or PRL, nor, to the best knowledge of UPL and PRL, any executive officer or director of UPL or PRL, (i) beneficially owns any securities of the Issuer as of the date hereof or (ii) has any right as of the date hereof to acquire, directly or indirectly, any beneficial ownership of other securities of the Issuer. (c) Except as set forth herein, none of UPL or PRL, nor, to the best knowledge of UPL and PRL, any executive officer or director of UPL or PRL, has effected any transaction in shares of the Common Stock, or securities convertible into shares of the Common Stock, during the past 60 days. Item 6. Contracts, Arrangements, Understandings or Relationships With ------------------------------------------------------------- Respect to Securities of the Issuer. ----------------------------------- Item 6 of the Schedule 13D as originally filed is hereby amended by adding thereto the following: On June 5, 2001, UPL and PRL entered into a stock purchase agreement with Jay S. Walker and The Jay S. Walker Irrevocable Credit Trust (the "New Stock Purchase Agreement"), which provides for the purchase of 18,221,686 and 6,806,337 shares of Common Stock from Jay S. Walker and The Jay S. Walker Irrevocable Credit Trust, respectively, at a price of US$4.37 per share. Upon the closing of the transactions contemplated in the New Stock Purchase Agreement, UPL and PRL will purchase a total of 25,028,023 shares of Common Stock for an aggregate consideration of US$109,372,460.51. The completion of the purchase is subject to certain conditions, including filings and clearance under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. Concurrently with entering into the New Stock Purchase Agreement, UPL, PRL, FEL, PPG and the Issuer entered into a stockholders' agreement, dated as of June 5, 2001 (the "Stockholders' Agreement"), pursuant to which certain provisions of the Issuer Stock Purchase Agreement and the Registration Rights Agreement were amended. The amendments are to take effect at the closing under the New Stock Purchase Agreement, and they are as follows: UPL, PRL, FEL and PPG are entitled to designate three nominees (including the designee of FEL elected to the Issuer's Board of Directors pursuant to the Issuer Stock Purchase Agreement) to the Issuer's Board of Directors so long as they own beneficially at least 20% of the 206,433,004 shares of Common Stock (representing shares of Common Stock outstanding as of May 31, 2001 plus shares upon the exercise of certain options by Jay S. Walker), subject to adjustment for stock splits or combination of shares and dividends of Common Stock issued pro rata to all holders of Common Stock for no consideration. UPL, PRL, FEL and PPG are entitled to designate only two nominees or one nominee to the Issuer's Board of Directors if collectively their beneficial ownership in the Issuer is less than 20% but at least 10% or less than 10% but at least 5%, respectively, of the 206,433,004 shares of Common Stock, subject to same adjustments as referred to above. Without the prior written consent of the Issuer's Board of Directors, and subject to certain other exceptions, UPL, PRL, FEL and PPG will not (and will cause their affiliates not to) acquire or propose to acquire additional securities which would result in they and their affiliates owning more than 32.5% of the outstanding capital stock of the Issuer on a fully diluted basis, or take or propose to take certain actions, including a merger or other business combination involving the Issuer, a purchase of a material portion of the Issuer's assets, a proxy contest, a voting arrangement or a tender or exchange offer, which could relate to a potential change of control of the Issuer. The Registration Rights Agreement is amended to include UPL and PRL as parties to the agreement. UPL and PRL are also granted certain demand and piggyback registration rights for their newly purchased shares of Common Stock, exercisable at any time after the closing under the New Stock Purchase Agreement, except in certain circumstances. The descriptions of the New Stock Purchase Agreement and the Stockholders' Agreement contained herein are subject, and qualified in their entirety by reference to, the New Stock Purchase Agreement and the Stockholders' Agreement, each of which has been made an exhibit to this amendment and is hereby incorporated by reference in this Item 6. Item 7. Material to be Filed as Exhibits. -------------------------------- Item 7 of the Schedule 13D as originally filed is hereby amended by adding thereto the following Exhibits: Exhibit No ---------- 5. Agreement with respect to filing of Amendment No.1 to Schedule 13D 6. Stock Purchase Agreement, dated as of June 5, 2001, by and among Jay S. Walker, Jay S. Walker Irrevocable Credit Trust, Ultimate Pioneer Limited and Potton Resources Limited. 7. Stockholders' Agreement, dated as of June 5, 2001, by and among priceline.com Incorporated, Ultimate Pioneer Limited, Potton Resources Limited, Forthcoming Era Limited and Prime Pro Group Limited. SIGNATURE --------- After reasonable inquiry and to the best of its knowledge and belief, each party certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: June 8, 2001 FOR AND ON BEHALF OF HUTCHISON WHAMPOA LIMITED By: /s/ Susan Chow -------------------------------- Name: Susan Chow Title: Director FOR AND ON BEHALF OF FORTHCOMING ERA LIMITED By: /s/ Susan Chow -------------------------------- Name: Susan Chow Title: Director FOR AND ON BEHALF OF ULTIMATE PIONEER LIMITED By: /s/ Susan Chow -------------------------------- Name: Susan Chow Title: Director FOR AND ON BEHALF OF CHEUNG KONG (HOLDINGS) LIMITED By: /s/ Ip Tak Chuen, Edmond -------------------------------- Name: Ip Tak Cheun, Edmond Title: Director FOR AND ON BEHALF OF PRIME PRO GROUP LIMITED By: /s/ Ip Tak Cheun, Edmond -------------------------------- Name: Ip Tak Chuen, Edmond Title: Director FOR AND ON BEHALF OF POTTON RESOURCES LIMITED By: /s/ Ip Tak Chuen, Edmond -------------------------------- Name: Ip Tak Chuen, Edmond Title: Director SCHEDULE I ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- LI Ka-shing Hong Kong Chairman, Hutchison Whampoa Limited 7th Floor, Cheung Kong Center Chairman, Cheung Kong (Holdings) 2 Queen's Road Central Limited Hong Kong LI Tzar Kuoi, Victor Hong Kong Deputy Chairman and Executive Director, 7th Floor, Cheung Kong Center Hutchison Whampoa Limited 2 Queen's Road Central Chairman, Cheung Kong Infrastructure Hong Kong Holdings Limited/2/ Co-Chairman, Husky Energy Inc./7/ Managing Director and Deputy Chairman, Cheung Kong (Holdings) Limited Executive Director, Hongkong Electric Holdings Limited/3/ Director, The Hongkong and Shanghai Banking Corporation Limited (banking), No. 1 Queen's Road Central, Hong Kong FOK Kin-ning, Canning British Group Managing Director and Executive Director, Hutchison Whampoa Limited Chairman, Hutchison Telecommunications (Australia) Limited/4/ Chairman, Partner Communications Company Ltd./5/ Co-Chairman, Husky Energy Inc./7/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman, Hongkong Electric Holdings Limited/3/ Non-executive Director, Cheung Kong (Holdings) Limited
SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- CHOW WOO Mo Fong, Susan British Deputy Group Managing Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Hongkong Electric Holdings Limited/3/ Director, Partner Communications Company Ltd./5/ Director, Forthcoming Era Limited Director, Ultimate Pioneer Limited Non-executive Director, TOM.COM LIMITED/6/ Frank John SIXT Canadian Group Finance Director and Executive Director, Hutchison Whampoa Limited Chairman, TOM.COM LIMITED/6/ Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Husky Energy Inc./7/ Director, Partner Communications Company Ltd./5/ Non-executive Director, Cheung Kong (Holdings) Limited Director, Forthcoming Era Limited Director, Ultimate Pioneer Limited LAI Kai Ming, Dominic Canadian Executive Director, Hutchison Whampoa Limited
SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- George Colin MAGNUS British Executive Director, Hutchison Whampoa 7th Floor, Cheung Kong Center Limited 2 Queen's Road Central Chairman, Hongkong Electric Holdings Hong Kong Limited/3/ Deputy Chairman, Cheung Kong (Holdings) Limited Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ KAM Hing Lam Hong Kong Executive Director, Hutchison Whampoa 7th Floor, Cheung Kong Center Limited 2 Queen's Road Central Group Managing Director, Cheung Hong Kong Kong Infrastructure Holdings Limited/2/ Deputy Managing Director, Cheung Kong (Holdings) Limited Executive Director, Hongkong Electric Holdings Limited/3/ Michael David KADOORIE British Independent Non-Executive Director, 24th Floor, St. George's Hutchison Whampoa Limited Building, 2 Ice House Street Chairman, CLP Holdings Limited Central, Hong Kong (investment holding), 147 Argyle Street, Kowloon, Hong Kong Chairman, The Hongkong and Shanghai Hotels Limited (hotel catering and real estate), 8th Floor, St. George's Building, 2 Ice House Street, Central, Hong Kong Chairman, Heliservices (Hong Kong) Limited (provision of helicopter services), 2107 St. George's Building, 2 Ice House Street, Central, Hong Kong
SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- LI Fook-wo British Independent Non-Executive Director, 1416 Prince's Building Hutchison Whampoa Limited 10 Chater Road Director, The Bank of East Asia, Hong Kong Limited (banking), No. 10 Des Voeux Road Central, Hong Kong Director, Johnson Electric Holdings Limited (micromotors), Cedar House, 41 Cedar Avenue, Hamilton HM 12, Bermuda Simon MURRAY British Non-Executive Director, Hutchison Room 2108 Gloucester Tower Whampoa Limited The Landmark Chairman, General Enterprise Management 15 Queen's Road Central Services Limited (investment fund), Hong Kong Room 2108 Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Independent Non-executive Director, Cheung Kong (Holdings) Limited OR Ching Fai, Raymond British Independent Non-Executive Director, 1 Queen's Road Central Hutchison Whampoa Limited Hong Kong General Manager, The Hongkong and Shanghai Banking Corporation Limited (banking), 1 Queen's Road Central, Hong Kong
SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- William SHURNIAK Canadian Independent Non-Executive Director, Hutchison Whampoa Limited Deputy Chairman, Husky Energy Inc./7/ Chairman, ETSA Utilities (operation of electricity distribution network in Australia), 1 Anzac Highway, Keswick, South Australia 5035, Australia Chairman, Powercor Australia Ltd. (operation of electricity distribution network in Australia), Level 9, 40 Market Street, Melbourne, Victoria 3000, Australia Peter Alan Lee VINE British Non-Executive Director, Hutchison Suite 1005 World Wide House Whampoa Limited 19 Des Voeux Road Central Director, Liu Chong Hing Investments Hong Kong Limited (investments), 24 Des Voeux Road Central, Hong Kong Director, Liu Chong Hing Bank Limited (banking), 24 Des Voeux Road Central, Hong Kong WONG Chung Hin British Non-Executive Director, Hutchison 1225 Prince's Building Whampoa Limited 10 Chater Road Director, The Bank of East Asia, Limited Hong Kong (banking), No. 10 Des Voeux Road Central, Hong Kong Director, Hongkong Electric Holdings Limited/3/
SCHEDULE II ----------- Executive Officers and Directors of ----------------------------------- Forthcoming Era Limited ----------------------- As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- --------------------------------- CHOW WOO Mo Fong, Susan British Director, Forthcoming Era Limited Deputy Group Managing Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Hongkong Electric Holdings Limited/3/ Director, Partner Communications Company Ltd./5/ Director, Ultimate Pioneer Limited Non-executive Director, TOM.COM LIMITED/6/ Frank John SIXT Canadian Director, Forthcoming Era Limited Group Finance Director and Executive Director, Hutchison Whampoa Limited Chairman, TOM.COM LIMITED/6/ Executive Director, Cheung Kong Infrastrucure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Husky Energy Inc./7/ Director, Partner Communications Company Ltd./5/ Director, Ultimate Pioneer Limited Non-executive Director, Cheung Kong (Holdings) Limited
SCHEDULE II (continued) ----------- Executive Officers and Directors of ----------------------------------- Forthcoming Era Limited ----------------------- As of June 6, 2000 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- --------------------------------- HO Wai Leung, Edmond British Director, Forthcoming Era Limited 9 Queen Street, Mayfair, Director, Hutchison Whampoa (Europe) London W1X 7PH, Limited (consultancy services), 9 Queen United Kingdom Street, Mayfair, London W1X 7PH, United Kingdom Director, Hutchison Whampoa (UK) Limited (investment holding), 9 Queen Street, Mayfair, London W1X 7PH, United Kingdom Director, Hutchison Whampoa Properties (Europe) Limited (project management), 100 New Bridge Street, London EC4V 6JA, United Kingdom Director, Ultimate Pioneer Limited Neil Douglas McGEE Australian Director, Forthcoming Era Limited 707-8th Avenue S.W., Box Director, Prime Pro Group Limited 6525, Station D, Calgary, Director, Ultimate Pioneer Limited Alberta, Canada, T2P 3G7 Director, Potton Resources Limited Vice President and Chief Financial Officer, Husky Energy Inc./7/ SNG Cheng Khoong, Robin Singaporean Director, Forthcoming Era Limited 150 Beach Road #17-06, Managing Director, Copthorne International Singapore 189720 Investment Ltd (fund management), 150 Beach Road #17-06, Singapore 189720 Director, Ultimate Pioneer Limited
SCHEDULE III ------------ Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - ---------------- ----------- --------------------------------- LI Ka-shing Hong Kong Chairman, Cheung Kong (Holdings) Limited Chairman, Hutchison Whampoa Limited LI Tzar Kuoi, Victor Hong Kong Managing Director and Deputy Chairman, Cheung Kong (Holdings) Limited Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman and Executive Director, Hutchison Whampoa Limited Co-Chairman, Husky Energy Inc./7/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, The Hongkong and Shanghai Banking Corporation Limited (banking), No. 1 Queen's Road Central, Hong Kong George Colin MAGNUS British Deputy Chairman, Cheung Kong (Holdings) Limited Chairman, Hongkong Electric Holdings Limited/3/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/3/ Executive Director, Hutchison Whampoa Limited KAM Hing Lam Hong Kong Deputy Managing Director, Cheung Kong (Holdings) Limited Group Managing Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hutchison Whampoa Limited Executive Director, Hongkong Electric Holdings Limited/3/
SCHEDULE III (continued) ------------ Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - ---------------- ----------- --------------------------------- CHUNG Sun Keung, Davy Hong Kong Executive Director, Cheung Kong (Holdings) Limited IP Tak Chuen, Edmond Hong Kong Executive Director, Cheung Kong (Holdings) Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Prime Pro Group Limited Director, Potton Resources Limited Non-executive Director, TOM.COM LIMITED/6/ PAU Yee Wan, Ezra Hong Kong Executive Director, Cheung Kong (Holdings) Limited Director, Prime Pro Group Limited Director, Potton Resources Limited WOO Chia Ching, Grace U.S.A. Executive Director, Cheung Kong (Holdings) Limited CHIU Kwok Hung, Justin Canadian Executive Director, Cheung Kong (Holdings) Limited LEUNG Siu Hon British Independent Non-executive Director, 502 Aon China Building Cheung Kong (Holdings) Limited 29 Queen's Road Central Consultant, Messrs. S.H. Leung & Co. Hong Kong (solicitors' firm), 502 Aon China Building, 29 Queen's Road Central, Hong Kong
SCHEDULE III (continued) ------------ Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - ---------------- ----------- --------------------------------- FOK Kin-ning, Canning British Non-executive Director, Cheung Kong 22nd Floor, Hutchison House (Holdings) Limited 10 Harcourt Road Chairman, Hutchison Telecommunications Hong Kong (Australia) Limited/4/ Chairman, Partner Communications Company Ltd./5/ Co-Chairman, Husky Energy Inc./7/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman, Hongkong Electric Holdings Limited/3/ Group Managing Director and Executive Director, Hutchison Whampoa Limited Frank John SIXT Canadian Non-executive Director, Cheung Kong 22nd Floor, Hutchison House (Holdings) Limited 10 Harcourt Road Chairman, TOM.COM LIMITED/6/ Hong Kong Group Finance Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Husky Energy Inc./7/ Director, Partner Communications Company Ltd./5/ Director, Forthcoming Era Limited Director, Ultimate Pioneer Limited
SCHEDULE III (continued) ------------ Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - ---------------- ----------- --------------------------------- CHOW Kun Chee, Roland British Independent Non-executive Director, 12th Floor, Prince's Building Cheung Kong (Holdings) Limited Chater Road Consultant, Herbert Tsoi and Partners Hong Kong (law firm), 602, Aon China Building, 29 Queen's Road Central, Hong Kong WONG Yick-ming, Rosanna Hong Kong Independent Non-executive Director, Room 906, Duke of Windsor Cheung Kong (Holdings) Limited Social Service Building Member of the Executive Council of the 15 Hennessy Road Hong Kong Special Administrative Wanchai, Hong Kong Region Executive Director, Hong Kong Federation of Youth Groups (charitable organisation), Room 906, Duke of Windsor Social Service Building, 15 Hennessy Road, Wanchai, Hong Kong Director, The Hongkong and Shanghai Banking Corporation Limited (banking), No. 1 Queen's Road Central, Hong Kong Chairman, Education Commission of the Hong Kong Special Administrative Region HUNG Siu-lin, Katherine Hong Kong Non-executive Director, Cheung Kong (Holdings) Limited YEH Yuan Chang, Anthony Hong Kong Independent Non-executive Director, 26th Floor, Tower A Cheung Kong (Holdings) Limited Regent Centre Honorary Life President, Tai Ping 63 Wo Yi Hop Road Carpets International Limited (carpet Kwai Chung manufacturing), 26th Floor, Tower A, Hong Kong Regent Centre, 63 Wo Yi Hop Road, Kwai Chung, Hong Kong
SCHEDULE III (continued) ------------ Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - ---------------- ----------- --------------------------------- CHOW Nin Mow, Albert British Non-executive Director, Cheung Kong 2602, Henley Building (Holdings) Limited 5 Queen's Road Central Chairman & Managing Director, Hong Kong Wah Yip (Holdings) Limited (property development and investment), 2602 Henley Building, 5 Queen's Road Central, Hong Kong Simon MURRAY British Independent Non-executive Director, Room 2108 Gloucester Tower Cheung Kong (Holdings) Limited The Landmark Chairman, General Enterprise Management 15 Queen's Road Central Services Limited (investment fund), Hong Kong Room 2108 Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Non-Executive Director, Hutchison Whampoa Limited KWOK Tun-li, Stanley Canadian Independent Non-executive Director, Ste 970-355 Burrard Street Cheung Kong (Holdings) Limited Vancouver, British Columbia Director, Amara International Investment V6C 2G8, Canada Corporation (investment holdings), Ste 970-355 Burrard Street, Vancouver, British Columbia, V6C 2G8, Canada
SCHEDULE IV ----------- Executive Officers and Directors of ----------------------------------- Prime Pro Group Limited ----------------------- As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- IP Tak Chuen, Edmond Hong Kong Director, Prime Pro Group Limited Executive Director, Cheung Kong (Holdings) Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Potton Resources Limited Non-executive Director, TOM.COM LIMITED/6/ PAU Yee Wan, Ezra Hong Kong Director, Prime Pro Group Limited Executive Director, Cheung Kong (Holdings) Limited Director, Potton Resources Limited LAU Chin Sung, John Australian Director, Prime Pro Group Limited 707- 8th Avenue S.W. Director, Potton Resources Limited Box 6525 Station D President and Chief Executive Officer, Calgary, Alberta Husky Energy Inc./7/ Canada T2P 3G7 Neil Douglas McGEE Australian Director, Prime Pro Group Limited 707-8th Avenue S.W. Director, Forthcoming Era Limited Box 6525 Station D Director, Ultimate Pioneer Limited Calgary, Alberta Director, Potton Resources Limited Canada, T2P 3G7 Vice President and Chief Financial Officer, Husky Energy Inc./7/
SCHEDULE IV ----------- Executive Officers and Directors of ----------------------------------- Prime Pro Group Limited ----------------------- As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- --------------------------------- YEO May Ann, Annie Singaporean Director, Prime Pro Group Limited 150 Beach Road Director, Potton Resources Limited #17-03 Gateway West General Manager, Property Enterprises Singapore 189720 Development Pte Ltd, Japura Pte Ltd, Japura Development Pte Ltd and Glenfield Investments Pte Ltd (all are property development), all at 150 Beach Road, #17-03 Gateway West, Singapore 189720 CHUI Sing Loi Singaporean Director, Prime Pro Group Limited 150 Beach Road Director, Potton Resources Limited #17-03 Gateway West Senior Project Manager, Property Singapore 189720 Enterprises Development Pte Ltd, Japura Pte Ltd, Japura Development Pte Ltd and Glenfield Investments Pte Ltd (all are property development), all at 150 Beach Road, #17-03 Gateway West, Singapore 189720
SCHEDULE V ----------- Executive Officers and Directors of ----------------------------------- Ultimate Pioneer Limited ------------------------ As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ------------------ ----------- -------------------------------- CHOW WOO Mo Fong, Susan British Director, Ultimate Pioneer Limited Deputy Group Managing Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Hongkong Electric Holdings Limited/3/ Director, Partner Communications Company Ltd./5/ Director, Forthcoming Era Limited Non-executive Director, TOM.COM LIMITED/6/ Frank John SIXT Canadian Director, Ultimate Pioneer Limited Group Finance Director and Executive Director, Hutchison Whampoa Limited Chairman, TOM.COM LIMITED/6/ Executive Director, Cheung Kong Infrastrucure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Husky Energy Inc./7/ Director, Partner Communications Company Ltd./5/ Director, Forthcoming Era Limited Non-executive Director, Cheung Kong (Holdings) Limited
SCHEDULE V (continued) ----------- Executive Officers and Directors of ----------------------------------- Ultimate Pioneer Limited ------------------------ As of June 6, 2001 ------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ------------------- -------------------------------- HO Wai Leung, Edmond British Director, Ultimate Pioneer Limited 9 Queen Street, Mayfair, Director, Hutchison Whampoa (Europe) London W1X 7PH, Limited (consultancy services), 9 Queen United Kingdom Street, Mayfair, London W1X 7PH, United Kingdom Director, Hutchison Whampoa (UK) Limited (investment holding), 9 Queen Street, Mayfair, London W1X 7PH, United Kingdom Director, Hutchison Whampoa Properties (Europe) Limited (project management), 100 New Bridge Street, London EC4V 6JA, United Kingdom Director, Forthcoming Era Limited Neil Douglas McGEE Australian Director, Ultimate Pioneer Limited 707-8th Avenue S.W., Box 6525, Director, Prime Pro Group Limited Station D, Calgary, Alberta, Director, Forthcoming Era Limited Canada, T2P 3G7 Director, Potton Resources Limited Vice President and Chief Financial Officer, Husky Energy Inc./7/ SNG Cheng Khoong, Robin Singaporean Director, Ultimate Pioneer Limited 150 Beach Road #17-06, Managing Director, Copthorne International Singapore 189720 Investment Ltd (fund management), 150 Beach Road #17-06, Singapore 189720 Director, Forthcoming Era Limited
SCHEDULE VI ----------- Executive Officers and Directors of ----------------------------------- Potton Resources Limited ------------------------ As of June 6, 2001 ------------------ Present Principal Occupation or Employment, Name and Including Name, Principal Business and Business Address/1b/ Citizenship Address of Each Corporation or Organization - -------------------- ----------- ------------------------------------------- IP Tak Chuen, Edmond Hong Kong Director, Potton Resources Limited Executive Director, Cheung Kong (Holdings) Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Non-executive Director, TOM.COM LIMITED/6/ Director, Prime Pro Group Limited PAU Yee Wan, Ezra Hong Kong Director, Potton Resources Limited Executive Director, Cheung Kong (Holdings) Limited Director, Prime Pro Group Limited LAU Chin Sung, John Australian Director, Potton Resources Limited 707- 8th Avenue S.W. President and Chief Executive Officer, Box 6525 Station D Husky Energy Inc./7/ Calgary, Alberta Director, Prime Pro Group Limited Canada T2P 3G7 Neil Douglas McGEE Australian Director, Potton Resources Limited 707-8th Avenue S.W. Director, Forthcoming Era Limited Box 6525 Station D Director, Ultimate Pioneer Limited Calgary, Alberta Director, Prime Pro Group Limited Canada, T2P 3G7 Vice President and Chief Financial Officer, Husky Energy Inc./7/ SCHEDULE VI (continued) ----------- Executive Officers and Directors of ----------------------------------- Potton Resources limited ------------------------ As of June 6 2001 ----------------- Present Principal Occupation or Employment Name and Including Name, Principal Business and Business Address/1b/ Citizenship Address of Each Corporation or Organization - -------------------- ----------- --------------------------------------------- YEO May Ann, Annie Singaporean Director, Potton Resources Limited Director, 150 Beach Road Prime Pro Group Limited #17-03 Gateway West General Manager, Property Enterprises Singapore 189720 Development Pte Ltd, Japura Pte Ltd, Japura Development Pte Ltd and Glenfield Investments Pte Ltd (all are property development), all at 150 Beach Road, #17-03 Gateway West, Singapore 189720 CHUI Sing Loi Singaporean Director, Potton Resources Limited Director, 150 Beach Road Prime Pro Group Limited #17-03 Gateway West Senior Project Manager, Property Enterprises Singapore 189720 Development Pte Ltd, Japura Pte Ltd, Japura Development Pte Ltd and Glenfield Investments Pte Ltd (all are property development), all at 150 Beach Road, #17-03 Gateway West, Singapore 189720 Notes:- 1a. Unless otherwise indicated, the business address of each of the named persons is 22nd Floor, Hutchison House, 10 Harcourt Road, Hong Kong. 1b. Unless otherwise indicated, the business address of each of the named persons is 7th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong. 2. The principal business address of Cheung Kong Infrastructure Holdings Limited is 12th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong. The principal business of Cheung Kong Infrastructure Holdings Limited is the development, investment and operation of infrastructure businesses in Hong Kong, the PRC and the Asia-Pacific Region. 3. The principal business address of Hongkong Electric Holdings Limited is Electric Centre, 28 City Garden Road, North Point, Hong Kong. The principal business of Hongkong Electric Holdings Limited is generation and supply of electricity. 4. The principal business address of Hutchison Telecommunications (Australia) Limited is Level 3, 504 Pacific Highway, St. Leonards NSW 2065, Sydney, Australia. The principal business of Hutchison Telecommunications (Australia) Limited is telecommunications. 5. The principal business address of Partner Communications Company Ltd. is 8 Amal Street, Afeq Industrial Park, Rosh Ha'ayin 48103, Israel. The principal business of Partner Communications Company Ltd. is cellular mobile telephone services. 6. The principal business address of TOM.COM LIMITED is 48/F., The Center, 99 Queen's Road Central, Hong Kong. The principal business of TOM.COM LIMITED is the development of software and computer network systems and provision of related services, events production and the operation of an Internet portal delivering Internet infotainment, contents and services. 7. The principal business address of Husky Energy Inc. is 707-8th Avenue S.W., Box 6525 Station D, Calgary, Alberta, Canada, T2P 3G7. The principal business of Husky Energy Inc. is investment in oil and gas. EXHIBIT INDEX ------------- Exhibit No. Description - ----------- ----------- 5. Agreement with respect to filing of Amendment No. 1 to Schedule 13D 6. Stock Purchase Agreement, dated as of June 5, 2001, by and among Jay S. Walker, Jay S. Walker Irrevocable Credit Trust, Ultimate Pioneer Limited and Potton Resources Limited. 7. Stockholders' Agreement, dated as of June 5, 2001, by and among priceline.com Incorporated, Ultimate Pioneer Limited, Potton Resources Limited, Forthcoming Era Limited and Prime Pro Group Limited. (Incorporated by reference to Exhibit 99.1 to priceline.com Incorporated's Current Report on Form 8-K filed with the Securities and Exchange Commission on June 6, 2001). EX-99.5 2 dex995.txt AGREEMENT WITH RESPECT TO FILING AMENDMENT #1 EXHIBIT 5 --------- AGREEMENT In accordance with Reg. S. 13d-1(f)(1), each of the undersigned hereby agrees that Hutchison Whampoa Limited shall file on behalf of each of them this Amendment No. 1 to Schedule 13D relating to the Common Stock, $0.008 par value, in priceline.com Incorporated, to which this Agreement is an Exhibit and such statements and amendments thereto as may be required to be filed with the United States Securities and Exchange Commission. Dated: June 8, 2001 FOR AND ON BEHALF OF HUTCHISON WHAMPOA LIMITED By: /s/ Susan Chow -------------------------- Name: Susan Chow Title: Director FOR AND ON BEHALF OF ULTIMATE PIONEER LIMITED By: /s/ Susan Chow -------------------------- Name: Susan Chow Title: Director FOR AND ON BEHALF OF POTTON RESOURCES LIMITED By: /s/ Ip Tak Chuen, Edmond -------------------------- Name: Ip Tak Chuen, Edmond Title: Director EX-99.6 3 dex996.txt STOCK PURCHASE AGREEMENT EXHIBIT 6 ================================================================================ STOCK PURCHASE AGREEMENT among JAY S. WALKER an individual JAY S. WALKER IRREVOCABLE CREDIT TRUST POTTON RESOURCES LIMITED a British Virgin Islands Company and ULTIMATE PIONEER LIMITED a British Virgin Islands Company ___________________________________ Dated as of June 5, 2001 ___________________________________ ================================================================================ STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of June 5, --------- 2001, by and among Mr. Jay S. Walker, an individual ("Walker") and the Jay S. ------ Walker Irrevocable Credit Trust (the "Trust") (Walker and the Trust are each ----- referred to as a "Seller" and are collectively referred to as the "Sellers"), ------ ------- Potton Resources Limited, a British Virgin Islands company ("PRL") and wholly --- owned subsidiary of Cheung Kong (Holdings) Limited, a Hong Kong corporation, and Ultimate Pioneer Limited, a British Virgin Islands company ("UPL") and wholly --- owned subsidiary of Hutchison Whampoa Limited, a Hong Kong corporation (PRL and UPL are each a "Purchaser", and collectively the "Purchasers"). --------- ---------- NOW, THEREFORE, the parties hereto hereby agree as follows. ARTICLE I. DEFINITIONS As used in this Agreement, the following terms shall have the following meanings: "Affiliate" shall mean, with respect to any person, any other person --------- directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person and, in the case of a person who is an individual, shall include (i) members of such specified person's immediate family (as defined in Instruction 2 of Item 404(a) of Regulation S-K under the Securities Act) and (ii) trusts, the trustee and all beneficiaries of which are such specified person or members of such person's immediate family as determined in accordance with the foregoing clause (i). For the purposes of this definition, "control," when used with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "affiliated," "controlling" and "controlled" have meanings correlative to the foregoing. "Agreement" shall have the meaning set forth in the Preamble. --------- "Applicable Law" shall mean, with respect to any person, any law, -------------- statute, rule, regulation, order, writ, injunction, judgment or decree of any Governmental Authority to which such person or any of its subsidiaries is bound or to which any of their respective properties is subject. "Business Day" shall mean any day on which commercial banks are not ------------ authorized or required to close in New York City and Hong Kong. "Closing" shall have the meaning set forth in Section 2.2. ------- "Common Stock" shall mean the common stock, par value $.008 per share, ------------ of the Company. "Company" shall mean priceline.com Incorporated, a Delaware ------- corporation. 1 "Exchange Act" shall mean the Securities Exchange Act of 1934, as ------------ amended, and the rules and regulations promulgated thereunder. "FEL" shall mean Forthcoming Era Limited, a British Virgin Islands --- company and a wholly owned subsidiary of Hutchison Whampoa Limited. "Governmental Authority" shall mean any foreign, Federal, state or ---------------------- local court or governmental or regulatory authority. "HSR Act" shall mean Hart-Scott-Rodino Antitrust Improvements Act of ------- 1976, as amended. "Indemnified Party" shall have the meaning set forth in Section 9.1. ----------------- "Indemnifying Party" shall have the meaning set forth in Section 9.1. ------------------ "Lien" shall mean any pledge, lien, claim, restriction, charge or ---- encumbrance of any kind. "NASD" shall mean the National Association of Securities Dealers, Inc. ---- "Nasdaq Rules" shall mean the Marketplace Rules of the Nasdaq Stock ------------ Market. "Notices" shall have the meaning set forth in Section 9.2. ------- "Permitted Transferee" shall mean, as to either Purchaser, (i) the -------------------- other Purchaser, (ii) PPG, (iii) FEL, (iv) any wholly-owned subsidiary of Hutchison Whampoa Limited and (v) any wholly-owned subsidiary of Cheung Kong (Holdings) Limited. "Permitted Liens" shall mean: (i) liens for Taxes and other --------------- governmental charges and assessments arising in the ordinary course of business which are not yet due and payable, (ii) liens of landlords and liens of carriers, warehousemen, mechanics and materialmen and other like liens arising in the ordinary course of business for sums not yet due and payable and (iii) other liens or imperfections on property which are not material in amount, do not interfere with, and are not violated by, the consummation of the transactions contemplated by this Agreement, and do not impair the marketability of, or materially detract from the value of or materially impair the existing use of, the property affected by such lien or imperfection. "person" shall mean any individual, partnership, corporation, limited ------ liability company, joint venture, association, joint- stock company, trust, unincorporated organization, government or agency or political subdivision thereof, or other entity. "Original Company Stock Purchase Agreement" shall mean the Stock ----------------------------------------- Purchase Agreement dated as of February 15, 2001, among the Company and the Original Purchasers. "Original Purchasers" shall mean PPG and FEL. ------------------- 2 "PPG" shall mean Prime Pro Group Limited, a British Virgin Islands --- company and a wholly owned subsidiary of Cheung Kong (Holdings) Limited. "Purchaser" shall have the meaning set forth in the Preamble. --------- "Shares" shall have the meaning set forth in Section 2.1 hereof. ------ "Securities" shall mean the Shares and any other Common Stock of the ---------- Company. "Securities Act" shall mean the Securities Act of 1933, as amended, -------------- and the rules and regulations thereunder. "Stockholders' Agreement" shall mean the Stockholders' Agreement dated ----------------------- as of the date hereof, among the Company, the Original Purchasers and the Purchasers. "subsidiary" shall mean, with respect to any person, (a) a corporation ---------- a majority of whose capital stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by such person, by a subsidiary of such person, or by such person and one or more subsidiaries of such person or (b) a partnership in which such person or a subsidiary of such person is, at the date of determination, a general partner, or any other person (other than a corporation) in which such person, a subsidiary of such person or such person and one or more subsidiaries of such person, directly or indirectly, at the date of determination thereof, has (i) at least a majority ownership interest, (ii) the power to elect or direct the election of the directors or other governing body, or (iii) the power to direct or cause the direction of the affairs or management. For purposes of this definition, a person is deemed to own any capital stock or other ownership interest if such person has the right to acquire such capital stock or other ownership interest, whether through the exercise of any purchase option, conversion privilege or similar right. "Taxes" shall mean all foreign, federal, state and local taxes, ----- including any interest, penalties or additions to tax that may become payable in respect thereof, imposed by any Governmental Authority, which taxes shall include, without limiting the generality of the foregoing, all income taxes, payroll and employee withholding taxes, unemployment insurance, social security, sales and use taxes, excise taxes, franchise taxes, gross receipts taxes, occupation taxes, real and personal property taxes, stamp taxes, transfer taxes, workmen's compensation taxes and other obligations of the same or a similar nature, whether arising before, on or after the Closing Date. ARTICLE II. SALE AND PURCHASE Section 2.1 Sale of Shares. On the Closing Date, upon the terms and -------------- subject to the satisfaction of all the conditions to Closing set forth in this Agreement, each Seller shall sell to each Purchaser, severally and not jointly, and each Purchaser shall purchase and accept from each Seller, payable in immediately available funds, the number of shares of Common Stock set forth opposite each Purchaser's name on Exhibit A hereto, at a purchase price of $4.37 per share (the 3 aggregate number of shares of Common Stock being sold hereinafter being referred to herein as the "Shares"). ------ Section 2.2 Closing. ------- (a) The closing of the purchase and sale of the Shares hereunder (the "Closing") shall take place three (3) Business Days after the ------- satisfaction of all the conditions to Closing set forth in Article VII (the "Closing Date"), at the offices of Dewey Ballantine LLP, 1301 Avenue of the ------------ Americas, New York, NY 10019, or at such other time and place as the parties hereto shall agree in writing. (b) At the Closing (i) each Purchaser shall deposit into one or more bank accounts designated by each Seller, by wire transfer of immediately available funds, an amount equal to the purchase price of the Shares being purchased by such Purchaser from such Seller pursuant to Section 2.1 and (ii) such Seller shall deliver to each Purchaser, against payment of the purchase price therefor, a stock certificate or stock certificates representing the Shares being purchased from such Seller by such Purchaser pursuant to Section 2.1. The stock certificates shall be duly endorsed or accompanied by appropriate stock powers duly endorsed in blank and evidence of payment of any applicable stock transfer tax which may be incurred as a result of the transfer of the Shares. ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE SELLERS Each Seller represents and warrants, as to itself only and severally and not jointly, to the Purchasers as follows (except that the representation in Section 3.6 is made only by Walker): Section 3.1 Authorization; Enforceability. Such Seller has duly ----------------------------- executed and delivered this Agreement. This Agreement constitutes, assuming due execution by the other parties hereto, the legal, valid and binding obligation of such Seller enforceable against him or it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). Section 3.2 No Violation; Consents. ---------------------- (a) The execution, delivery and performance by such Seller of this Agreement and the consummation of the transactions contemplated hereby does not and will not contravene any Applicable Law and will not (x) violate, result in a breach of or constitute (with due notice or lapse of time or both) a default under any contract, lease, loan agreement, mortgage, security agreement or other agreement or instrument to which such Seller is a party or by which either he or it or his or its properties or assets is subject or (y) result in the creation or imposition of any Lien (other than a Permitted Lien) upon any of such Seller's properties or assets. 4 (b) Except for filings and clearance under the HSR Act and, if required, approval of stockholders of the Company under the Nasdaq Rules, no consent, authorization or order of, or filing or registration with, any Governmental Authority or other person is required to be obtained or made by such Seller for the execution, delivery and performance of this Agreement, or the consummation by such Seller of any of the transactions contemplated hereby. Section 3.3 Litigation. Except as disclosed in Schedule 3.3, the ---------- sale of the Shares pursuant to this Agreement has not been, and has not been threatened to be, restrained or enjoined (either temporarily, preliminarily or permanently), and no material adverse conditions have been imposed thereon by any Governmental Authority or arbitrator. Section 3.4 No Integrated Offering. Neither such Seller, nor any ---------------------- person acting on its behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require the registration of the Shares under the Securities Act. Section 3.5 Ownership of Shares. All of the Shares are on the date ------------------- hereof (except as disclosed in Schedule 3.5), and all of the Shares (without exception) will be as of the Closing Date, duly authorized and validly issued, fully-paid and non-assessable, with no personal liability attaching to the ownership thereof and free and clear of any taxes, liens or other claims or encumbrances. Assuming the truth and accuracy of each Purchaser's representations and warranties contained in Article IV, the offers and sales of the Shares as contemplated hereby and the deliveries to the Purchasers of the Shares are exempt from registration under the Securities Act and under applicable state securities and "blue sky" laws. Such Seller is the sole record and beneficial owner of such Shares and, except for the shares of Common Stock listed on Schedule 3.5, such Shares constitute all of the shares of the Common Stock owned beneficially or of record by such Seller. Upon delivery by such Seller of the certificates representing the Shares being sold by such Seller and payment therefor by the Purchasers as provided in Section 2.2 hereof, the Purchasers will acquire valid and marketable title to such Shares free and clear of any claims or encumbrances, except for restrictions on transfer imposed by the Securities Act and state securities laws and any restrictions arising as a result of the Purchasers. Section 3.6 Additional Representation. Walker has no actual ------------------------- knowledge, without having made any inquiry, of any facts or circumstances that would have a material adverse effect on the Company's and its subsidiaries', taken as a whole, financial condition or results of operations, except as disclosed in the Company's reports and filings under the Exchange Act or the Securities Act filed prior to the date hereof or on the disclosure schedules to the Original Company Stock Purchase Agreement. ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS Each of the Purchasers hereby represents and warrants, each as to itself only and each severally and not jointly, to the Sellers as follows: 5 Section 4.1 Organization and Standing; Authorization; ----------------------------------------- Enforceability; No Violations. - ----------------------------- (a) Such Purchaser is duly organized, validly existing and in good standing as a domestic corporation under the laws of the British Virgin Islands and has all requisite corporate power and authority to own its properties and assets and to carry on its business as it is now being conducted. (b) Such Purchaser has the corporate power to execute, deliver and perform its obligations under this Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and to consummate the transactions contemplated hereby. No other corporate proceedings on the part of such Purchaser are necessary therefor. (c) Such Purchaser has duly executed and delivered this Agreement. This Agreement constitutes the legal, valid and binding obligation of such Purchaser, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (d) The execution, delivery and performance by such Purchaser of this Agreement and the consummation of the transactions contemplated hereby does not and will not contravene any Applicable Law and will not (x) violate, result in a breach of or constitute (with due notice or lapse of time or both) a default under any contract, lease, loan agreement, mortgage, security agreement or other agreement or instrument to which such Purchaser is a party or by which either it or its properties or assets is subject or (y) result in the creation or imposition of any Lien (other than a Permitted Lien) upon any of such Purchaser's properties or assets. Section 4.2 Consents. Except for filings and clearance under the -------- HSR Act, or, if required under the Nasdaq Rules, stockholder approval, no consent, authorization or order of, or filing or registration with, any Governmental Authority or other person is required to be obtained or made by such Purchaser for the execution, delivery and performance by such Purchaser of this Agreement or the consummation by the Purchaser of any of the transactions contemplated hereby. Section 4.3 Investment Representations. Such Purchaser is capable -------------------------- of evaluating the risks and merits of its investment in the Shares and has the capacity to protect its owns interests. Such Purchaser is acquiring the Shares for investment for its own account and not with a view to, or for resale in connection with, any distribution thereof, and has no present intention of selling or distribution of the Shares. It understands that the Shares have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. Such Purchaser acknowledges that because they have not been registered under the Securities Act, the Shares it is purchasing must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. 6 ARTICLE V. COVENANTS OF THE SELLERS Section 5.1 Agreement to Take Necessary and Desirable Actions. Each ------------------------------------------------- Seller shall execute and deliver such other documents, certificates, agreements and other writings and take such other actions as may be necessary, desirable or reasonably requested by the Purchasers in order to consummate or implement as expeditiously as practicable the transactions contemplated hereby; provided, however, that notwithstanding the foregoing or any of the other covenants contained in this Article V, such Seller shall have no obligation with respect to obtaining or assisting to obtain any approval of the Company's stockholders that may be required under Rule 4350(i) of the Nasdaq Rules. Section 5.2 Other Consents and Approvals. Each Seller shall (a) use ---------------------------- commercially reasonable efforts to obtain all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and other persons required in connection with the execution, delivery and performance by such Seller of this Agreement, any other document or any of the transactions contemplated hereby or thereby, and (b) assist and cooperate with the Purchasers and the Company in preparing and filing all documents required to be submitted by the Purchasers or the Company to any Governmental Authority in connection with such transactions and in obtaining any governmental consents, waivers, authorizations or approvals which may be required to be obtained by the Purchasers or the Company in connection with such transactions (which assistance and cooperation shall include, without limitation, timely furnishing to the Purchasers and the Company all information concerning such Seller that counsel to the Purchasers or the Company reasonably determines is required to be included in such documents or would be helpful in obtaining any such required consent, waiver, authorization or approval). Section 5.3 Compliance with Conditions; Commercially Reasonable --------------------------------------------------- Efforts. Each Seller shall use commercially reasonable efforts to cause all of - ------- the obligations imposed upon it in this Agreement to be duly complied with and to cause all conditions precedent to the obligations of such Seller to be satisfied. Upon the terms and subject to the conditions of this Agreement, each Seller shall use its best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable consistent with Applicable Law, including under the HSR Act, to consummate and make effective in the most expeditious manner practicable the transactions contemplated hereby. Section 5.4 Sale of Additional Shares of Common Stock. In the event ----------------------------------------- that any of the shares of Common Stock that are subject to Liens set forth in the Consulting/Option Agreements identified in items 4(d)-(g) on Schedule 3.5 shall cease to be subject to such Liens, Walker shall not sell, short sell, pledge, assign or otherwise convey or transfer, directly or indirectly or by means of any derivatives transaction, any record or beneficial interest in such shares for a period of one year commencing on the Closing Date. 7 ARTICLE VI. COVENANTS OF THE PURCHASERS Section 6.1 Agreement to Take Necessary and Desirable Actions. Each ------------------------------------------------- Purchaser shall execute and deliver such other documents, certificates, agreements and other writings and take such other actions as may be necessary, desirable or reasonably requested by the Sellers in order to consummate or implement as expeditiously as practicable the transactions contemplated hereby. Section 6.2 Other Consents and Approvals. Each Purchaser shall (a) ---------------------------- use commercially reasonable efforts to obtain all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and other persons required in connection with the execution, delivery and performance by such Purchaser of this Agreement, any other document or any of the transactions contemplated hereby or thereby, and (b) assist and cooperate with the Sellers and the Company in preparing and filing all documents required to be submitted by the Sellers or the Company to any Governmental Authority in connection with such transactions and in obtaining any governmental consents, waivers, authorizations or approvals which may be required to be obtained by the Sellers or the Company in connection with such transactions (which assistance and cooperation shall include, without limitation, timely furnishing to the Sellers and the Company all information concerning such Purchaser that counsel to the Sellers or the Company reasonably determines is required to be included in such documents or would be helpful in obtaining any such required consent, waiver, authorization or approval). Section 6.3 Compliance with Conditions; Commercially Reasonable --------------------------------------------------- Efforts. Each Purchaser shall use its commercially reasonable efforts to cause - ------- all of the obligations imposed upon it in this Agreement to be duly complied with and to cause all conditions precedent to the obligations of such Purchaser and the Company to be satisfied. Upon the terms and subject to the conditions of this Agreement, each Purchaser shall use its best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable consistent with Applicable Law, including under the HSR Act, to consummate and make effective in the most expeditious manner practicable the transactions contemplated hereby, including requesting in its filing under the HSR Act early termination of the waiting period thereunder. ARTICLE VII. CONDITIONS TO CLOSING Section 7.1 Conditions to Each Party's Obligations. The obligations -------------------------------------- of each party hereunder required to be performed at the Closing shall be subject to the fulfillment at or prior to the Closing Date of the following conditions (any of which maybe waived, to the extent permitted by law, by all of the parties): (a) To the extent required, the approval by the stockholders of the Company under Rule 4350(i) of the Nasdaq Rules (it being understood that this paragraph (a) shall not affect any party's right to terminate this Agreement in accordance with Section 8.1 prior to obtaining such approval). 8 (b) Any waiting period under the HSR Act applicable to the consummation of the purchase and sale of Shares hereunder shall have expired or been terminated early. (c) No action or proceeding shall be pending before a court or other Governmental Authority to restrain or prohibit any of the transactions contemplated hereby. Section 7.2 Conditions to Purchasers' Obligations. The obligations ------------------------------------- of each Purchaser required to be performed at the Closing shall be subject to the additional conditions (any of which may be waived, to the extent permitted by law, by the Purchasers): (a) The representations and warranties of the Sellers contained in this Agreement, or in any Schedule attached hereto, shall be true and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties have been made on and as of such date, and the Sellers shall have delivered to the Purchasers a certificate, dated as of the Closing Date, to such effect. (b) Either (i) the Company shall have delivered to the Purchasers, (A) a legal opinion satisfactory to the Purchasers, (B) written confirmation from the NASD (unless such confirmation is subject to further conditions or actions that may be imposed by the NASD on the Company, the Purchasers or the Original Purchasers) or (C) other confirmation satisfactory to the Purchasers in their sole discretion, that the Closing of the purchase of the Shares will not require approval of stockholders of the Company in order to avoid violation of Rule 4350(i) of the Nasdaq Rules or (ii) if such stockholders' approval or any other condition or action is required by the NASD, such approval, condition or action shall have been obtained, satisfied or taken (it being understood that this subparagraph (ii) shall not affect any party's right to terminate this Agreement in accordance with Section 8.1 prior to obtaining, satisfying or taking any such approval, condition or action). Section 7.3 Conditions to Sellers' Obligations. The obligations of ---------------------------------- each Seller required to be performed at the Closing shall be subject to the additional condition (which may be waived, to the extent permitted by law, by the Sellers) that the representations and warranties of the Purchasers contained in this Agreement or in any Schedule attached hereto shall be true and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties have been made on and as of such date, and the Purchasers shall have delivered to the Sellers a certificate, dated as of the Closing Date, to such effect. Section 7.4 Parties' Election. If the conditions set forth in ----------------- Section 7.1(c) or 7.2(a) (other than with respect to the representation and warranty in Section 3.6) cannot be satisfied with respect to a portion of the Shares, the Purchasers shall each have the right to elect, in their sole discretion, to proceed with the purchase of the remainder of the Shares which are not subject to such failure of a condition, otherwise on the terms and subject to the conditions of this Agreement. 9 ARTICLE VIII. TERMINATION Section 8.1. Termination. This Agreement may be terminated and the ----------- transactions herein contemplated may be abandoned at any time prior to or at the Closing: (a) by mutual consent of the Sellers and the Purchasers; (b) by the Sellers, if there has been a material misrepresentation or a material breach by a Purchaser of a warranty or covenant herein and the material breach is not cured by the breaching party within 20 days of receiving notice thereof from the Sellers; (c) by the Purchasers, if there has been a material misrepresentation or a material breach by a Seller of a warranty or covenant herein and the material breach is not cured by the breaching party within 20 days of receiving notice thereof from the Purchasers; (d) by any party if any applicable HSR Act waiting period referred to in Section 7.1(b) shall not have expired or been terminated on or prior to July 24, 2001; (e) by any party if the condition referred to in Section 7.2(b)(i) shall not have been satisfied by the close of business Eastern Time on July 10, 2001, or, if earlier, upon issuance by the NASD of a written determination, reasonably determined by the Company, the Purchasers and the Sellers to be final, that stockholders' approval will be required under Rule 4350(i) of the Nasdaq Rules for the purchase of the Shares; or (f) by any party if the Closing has not occurred on or prior to July 27, 2001. Section 8.2 Effect of Termination. If this Agreement is terminated --------------------- pursuant to Section 8.1, all further obligations of the Sellers and the Purchasers under this Agreement shall terminate without further liability of the Sellers or the Purchasers, provided, that in no event shall termination of this Agreement limit or restrict the rights and remedies of any party against any other party which has breached the provisions of this Agreement prior to termination hereof. ARTICLE IX. MISCELLANEOUS Section 9.1 Survival of Representations and Warranties. ------------------------------------------ (a) All representations, warranties, and agreements (except agreements which are expressly required to be performed and are performed in full on or before the Closing) contained in this Agreement shall survive the Closing for a period of 12 months from the Closing Date, except that, with respect to claims asserted pursuant to this Section 9.1 before the expiration of the applicable representation, warranty and agreements such claims shall survive until the date they are finally liquidated or otherwise resolved. All covenants shall survive in accordance with their own terms. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 9.1 (or otherwise) following expiration of the applicable period of survival, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnifying Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third party claim is filed or lodged against the Indemnified Party on or prior 10 to the expiration of the applicable period of survival provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim. (b) (i) Each Seller, separately and not jointly, agrees to indemnify and hold harmless, on an after-Tax basis, each of the Purchasers and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of its Affiliates within the meaning of either section 15 of the Securities Act or section 20 of the Exchange Act and any partner of any of them from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of any breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4 and 3.5 of this Agreement by such Seller and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by each Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), such Seller shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of such Seller, which consent shall not be unreasonably withheld or delayed. (c) If a person entitled to indemnity hereunder (an "Indemnified Party") asserts that any party hereto (the "Indemnifying Party") ----------------- ------------------ has become obligated to the Indemnified Party pursuant to Section 9.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay. 11 (d) In fulfilling its obligations under this Section 9.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 9.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed twenty (20) Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party. (e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by a Seller is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then such Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by such Seller, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations. Section 9.2 Notices. All notices, demands, requests, consents, ------- approvals or other communications (collectively, "Notices") required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by 12 a reputable air courier service with tracking capability, with charges prepaid, or transmitted by hand delivery or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by facsimile, provided the sender receives evidence of complete transmission without error. Notice otherwise sent as provided herein shall be deemed given on the next business day following delivery of such notice to a reputable air courier service. If to the Sellers, as follows: Mr. Jay Walker Walker Digital, L.L.C. Five High Ridge Park Stamford, Connecticut 06905 Attention: Jay Walker Facsimile: (203) 461-7188 with a copy (which shall not constitute notice) to: Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square Wilmington, Delaware 19801 Attention: Patricia Moran, Esq. Facsimile: (302) 651-3001 If to the Purchasers, as follows: Ultimate Pioneer Limited Offshore Incorporations Limited P.O. Box 957 Offshore Incorporations Centre Road Town, Tortola British Virgin Islands with a copy to: Hutchison Whampoa Limited 22/F Hutchison House 10 Harcourt Road Central Hong Kong Attention: Company Secretary Facsimile: (852) 2128 1778 and: 13 Potton Resources Limited c/o 8/F, Cheung Kong Center 2 Queen's Road Central Hong Kong Attention: Mr. Edmond Ip Facsimile: (852) 2845 2057 Section 9.3 Governing Law. This Agreement and the rights and ------------- obligations of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York, and each party hereto submits to the non-exclusive jurisdiction of the state and federal courts within the County of New York in the State of New York. Section 9.4 Entire Agreement. This Agreement (including all ---------------- agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties or their Affiliates, whether oral or written, with respect to the subject matter hereof. Section 9.5 Modifications and Amendments. No amendment, ---------------------------- modification or termination of this Agreement shall be binding upon any other party unless executed in writing by the parties hereto intending to be bound thereby. Section 9.6 Waivers and Extensions. Any party to this ---------------------- Agreement may waive any right, breach or default which such party has the right to waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts. Section 9.7 Titles and Headings. Titles and headings of ------------------- sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. Section 9.8 Exhibits and Schedules. Each of the annexes, ---------------------- exhibits and schedules referred to herein and attached hereto is an integral part of this Agreement and is incorporated herein by reference. Section 9.9 Expenses; Brokers. Each party shall pay its own ----------------- costs and expenses in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby, including without limitation, fees and disbursements of counsel, financial advisors and accountants. The Sellers shall pay any and all stamp, transfer and other similar Taxes 14 payable or determined to be payable in connection with the execution and delivery of this Agreement or the transfer of the Shares, and shall save and hold each of the Purchasers harmless from and against any and all liabilities with respect to or resulting from any delay in paying, or omission to pay, such Taxes. Each of the parties represents to the others that neither it nor any of its Affiliates has used a broker or other intermediary, in connection with the transactions contemplated by this Agreement for whose fees or expenses any other party will be liable and respectively agrees to indemnify and hold the others harmless from and against any and all claims, liabilities or obligations with respect to any such fees or expenses asserted by any person on the basis of any act or statement alleged to have been made by such party or any of its Affiliates. Section 9.10 Press Releases and Public Announcements. All press --------------------------------------- releases and similar public announcements relating to the transactions contemplated by this Agreement and the Stockholders' Agreement shall be made after mutual consultation among the Sellers and the Purchasers, except to the extent that such disclosure is required by law or by stock exchange regulation; provided that any such required disclosure shall only be made to the extent required by such law or regulation. Section 9.11 Assignment; No Third Party Beneficiaries. This ---------------------------------------- Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by either the Sellers or the Purchasers without the prior written consent of the other parties hereto; provided that each Purchaser may assign or delegate its rights, duties and obligations hereunder to a Permitted Transferee or to such other person as may be reasonably satisfactory to the Sellers. Except as provided in the preceding sentence, any assignment or delegation of rights, duties or obligations hereunder made without the prior written consent of the other parties hereto shall be void and of no effect. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and their respective successors and permitted assigns. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Sections 9.1 and 9.11. Section 9.12 Severability. This Agreement shall be deemed ------------ severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. Section 9.13 Counterparts; Facsimile. This Agreement may be ----------------------- executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. All documents and closing deliveries for the transactions contemplated by this Agreement may be delivered by a party at the Closing via facsimile; provided, that, the originally executed signature pages and original documents are delivered to the appropriate parties within five (5) Business Days following the Closing. Section 9.14 Further Assurances. Each party hereto, upon the ------------------ request of any other party hereto, shall do all such further acts and execute, acknowledge and deliver all such further 15 instruments and documents as may be necessary or desirable to carry out the transactions contemplated by this Agreement, including, in the case of the Sellers, such acts, instruments and documents as may be necessary or desirable to convey and transfer to each Purchaser the Shares to be purchased by it hereunder. Section 9.15 Remedies Cumulative; No Consequential Damages. The --------------------------------------------- remedies provided herein shall be cumulative and shall not preclude the assertion by any party hereto of any other rights or the seeking of any remedies against the other party hereto. In no event shall any party be liable to another party or to any indemnitee hereunder for any special or consequential damages arising in connection with this Agreement or the purchase and sale of the Shares pursuant hereto. * * * 16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. ___________________________ Jay S. Walker JAY S. WALKER IRREVOCABLE CREDIT TRUST By:________________________ Name: Title: POTTON RESOURCES LIMITED By:________________________ Name: Title: ULTIMATE PIONEER LIMITED By:________________________ Name: Title: EXHIBIT A --------- Shares to be Purchased - ---------------------- Aggregate Purchaser Sellers No. of Shares Purchase Price --------- ------- ------------- -------------- Potton Resources Limited Jay S. Walker 9,110,843 $ 39,814,383.91 Potton Resources Limited Jay S. Walker 3,403,169 $ 14,871,848.53 Irrevocable Credit Trust Ultimate Pioneer Limited Jay S. Walker 9,110,843 $ 39,814,383.91 Ultimate Pioneer Limited Jay S. Walker 3,403,168 $ 14,871,844.16 Irrevocable Credit Trust ============================= Total 25,028,023 $109,372,460.51 -----END PRIVACY-ENHANCED MESSAGE-----