Exhibit 10.85


 


PRICELINE.COM
INCORPORATED 1999 OMNIBUS PLAN


RESTRICTED
STOCK AGREEMENT


 


THIS
RESTRICTED STOCK AGREEMENT (“Agreement”) made as of the     day
of                        by
and between priceline.com Incorporated, a Delaware corporation, with its
principal United States office at 800 Connecticut Avenue, Norwalk, Connecticut
06854 (the “Company”), and                                          (the
“Participant”).


 


W I T N E S S E T
H:


 


Pursuant
to terms of the priceline.com Incorporated 1999 Omnibus Plan (the “Plan”), the
Board of Directors of the Company has authorized this Agreement.  The Participant has been granted on [February      ,
2005] (the “Grant Date”), subject to execution of this Agreement, the
number of restricted shares of Company Stock (the “Restricted Stock”) set forth
below.  Unless otherwise indicated, any
capitalized term used herein, but not defined herein, shall have the meaning
ascribed to such term in the Plan.


 


1.                                       The
Grant


 


(a)                                  Subject
to the terms and conditions set forth herein, the Participant is granted                            (               )shares
of Restricted Stock.


 


(b)                                 Subject
to Section 2 hereof, one-fourth (1/4) of the Restricted Stock granted under
this Agreement shall vest on [February 28, 2006] (the “Initial Vesting Date”)
and an additional one-fourth (1/4) of the Restricted Stock granted under this
Agreement shall vest on each of the first, second and third anniversaries of
the Initial Vesting Date if on each such vesting date, the Participant has been
in Continuous Service through such date. 
For avoidance of doubt, there shall be no proportionate or partial
vesting in the periods prior to each vesting date and vesting shall occur only
on the applicable vesting dates pursuant to this Section 1(b).  Upon satisfaction of the vesting requirements
set forth in this Section 1(b), the restrictions on the vested Restricted
Stock, as set forth in Section 2 of this Agreement, shall lapse.  For purposes of this Agreement, “Continuous
Service” shall mean the Participant’s service with the Company or any
Subsidiary or Affiliate whether as an employee, director or consultant, is not
interrupted or terminated.


 


2.                                       Effect
of Termination of Continuous Service; Change in Control


 


(a)                                  Subject
to Section 2(b) below, upon the Participant’s termination of Continuous
Service, the unvested portion of the Restricted Stock granted under this
Agreement shall be immediately forfeited and canceled.


 


(b)                                 In
the event of a Change in Control, the Participant shall be fully vested in all
Restricted Stock granted under this Agreement, if  (i) the Participant was in Continuous Service
immediately prior to the Change in Control and (ii) the Participant remains in
Continuous Service through the date which is six (6) months after the effective
date of the Change in Control.  In the
event that the Participant’s Continuous Service is terminated (other than for
Cause) by the Company in anticipation of a Change in Control or within six (6)
months after the


 





















 


effective date of a Change in Control, then the Participant shall be
fully vested in all Restricted Stock granted under this Agreement.  The determination of whether the Participant’s
Continuous Service is terminated by the Company in anticipation of a Change in
Control shall be made by the Company, in its sole discretion.


 


(c)                                  For
purposes of this Agreement, the term “Change in Control” shall mean the
occurrence of any one of the following events:


 


(i)                                     any Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing
thirty-five percent (35%) or more of the combined voting power of the Company’s
then outstanding securities eligible to vote for the election of the Board (the
“Company Voting Securities”); provided, however, that the event described in this
paragraph (i) shall not be deemed to be a Change in Control if such event
results from the acquisition of Company Voting Securities pursuant to a
Non-Qualifying Transaction (as defined in paragraph (iii) below);


 


(ii)                                  individuals who, on the Grant Date,
constitute the Board (the “Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board; provided, however, that any person
becoming a director subsequent to the Grant Date, whose election or nomination
for election was approved (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for
director, without written objection to such nomination) by a vote of at least
two-thirds of the directors who were, as of the date of such approval,
Incumbent Directors, shall be an Incumbent Director; provided, further, that no
individual initially appointed, elected or nominated as a director of the
Company as a result of an actual or threatened election contest with respect to
the election or removal of directors or as a result of any other actual or
threatened solicitation of proxies or consents by or on behalf of any person
other than the Board shall be deemed to be an Incumbent Director;


 


(iii)                               the consummation of a merger, consolidation,
statutory share exchange or similar form of corporate transaction involving (A)
the Company or (B) any of its wholly owned subsidiaries pursuant to which, in
the case of this clause (B), Company Voting Securities are issued or issuable
(any event described in the immediately preceding clause (A) or (B), a “Reorganization”)
or the sale or other disposition of all or substantially all of the assets of
the Company to an entity that is not an Affiliate of the Company (a “Sale”),
unless immediately following such Reorganization or Sale: (1) more than 50% of
the total voting power (in respect of the election of directors, or similar
officials in the case of an entity other than a corporation) of (x) the
Company (or, if the Company ceases to exist, the entity resulting from such
Reorganization), or, in the case of a Sale, the entity which has acquired all
or substantially all of the assets of the Company (in either case, the “Surviving
Entity”), or (y) if applicable, the ultimate parent entity that directly
or indirectly has Beneficial Ownership of more than 50% of the total voting
power (in respect of the election of directors, or similar officials in the
case of an entity other than a corporation) of the Surviving Entity (the “Parent
Entity”), is represented by Company Voting Securities that were outstanding
immediately prior to such Reorganization or Sale (or, if applicable, is
represented by shares into which such Company Voting Securities were converted
pursuant to such Reorganization or Sale), (2) no Person is or becomes the


 


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Beneficial
Owner, directly or indirectly, of 35% or more of the total voting power (in
respect of the election of directors, or similar officials in the case of an
entity other than a corporation) of the outstanding voting securities of the
Parent Entity (or, if there is no Parent Entity, the Surviving Entity) and
(3) at least a majority of the members of the board of directors (or
similar officials in the case of an entity other than a corporation) of the
Parent Entity (or, if there is no Parent Entity, the Surviving Entity)
following the consummation of the Reorganization or Sale were, at the time of
the approval by the Board of the execution of the initial agreement providing
for such Reorganization or Sale, Incumbent Directors (any Reorganization or
Sale which satisfies all of the criteria specified in (1), (2) and (3) above
being deemed to be a “Non-Qualifying Transaction”); or


 


(iv)                              the
stockholders of the Company approve
a plan of complete liquidation or dissolution of the Company.


 


Notwithstanding
the foregoing, (I) if any Person becomes the Beneficial Owner, directly or
indirectly, of 35% or more of the combined voting power of Company Voting
Securities solely as a result of the acquisition of Company Voting Securities
by the Company which reduces the number of Company Voting Securities
outstanding, such increased amount shall be deemed not to result in a Change in
Control; provided, however, that if such Person subsequently becomes the
Beneficial Owner, directly or indirectly, of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities Beneficially Owned by such Person, a Change in Control of the
Company shall then be deemed to occur and (II) the acquisition following the
Effective Date of Company Voting Securities by Hutchison Whampoa Limited,
Cheung Kong (Holdings) Limited or any of their Affiliates shall be deemed not
to result in a Change in Control until such time as Hutchison Whampoa Limited,
Cheung Kong (Holdings) Limited or any of their Affiliates become the Beneficial
Owners in the aggregate of 50% or more of the combined voting power of Company
Voting Securities (and for this purpose the preceding clause (I) shall not
apply).


 


(d)                                 For
the purposes of Section 2(c), the following terms shall have the following
meanings:


 


(i)                                     “Affiliate” shall mean an affiliate of
the Company, as defined in Rule 12b-2 promulgated under Section 12 of the
Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”);


 


(ii)                                  “Beneficial Owner” shall have the
meaning set forth in Rule 13d-3 under the Exchange Act;


 


(iii)                               “Person”
shall have the meaning set forth in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (1) the Company or any of its subsidiaries, (2) a trustee or
other fiduciary holding securities under an employee benefit plan (or related
trust) sponsored or maintained by the Company or any of its subsidiaries, (3)
an underwriter temporarily holding securities pursuant to an offering of such
securities, (4) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same


 


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proportions
as their ownership of shares of Common Stock or (5) the Participant or any
group of persons including the Participant, or any entity controlled by the
Participant or any group of persons including the Participant; provided the
Participant is an executive officer, director or more than 10% owner of Stock.


 


3.                                       Nontransferability
of Grant


 


Except
as otherwise provided herein or in the Plan, no unvested Restricted Stock shall
be assigned, negotiated, pledged, or hypothecated in any way or be subject to
execution, attachment or similar process. 
Prior to the vesting of any Restricted Stock, no transfer of the
Participant’s rights with respect to such Restricted Stock, whether voluntary
or involuntary, by operation of law or otherwise, shall be permitted.  Immediately upon any attempt to transfer such
rights, such Restricted Stock, and all of the rights related thereto, shall be
forfeited by the Participant.


 


4.                                       Dividend
and Distribution Rights


 


The
Committee in its discretion may require any dividends or distribution paid on
the Restricted Stock be held in escrow until all restrictions on such
Restricted Stock have lapsed.


 


5.                                       Stock;
Adjustment Upon Certain Events.


 


(a)                                  Stock
to be issued under this Agreement shall be made available, at the discretion of
the Board, either from authorized but unissued Stock, from issued Stock
reacquired by the Company or from Stock purchased by the Company on the open
market specifically for this purpose.


 


(b)                                 The
existence of this Agreement and the Restricted Stock granted hereunder shall
not affect in any way the right or power of the Board or the stockholders of
the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company’s capital structure or its
business, any merger or consolidation of the Company or any affiliate, any
issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Stock, the authorization or issuance of additional shares of
Stock, the dissolution or liquidation of the Company or any affiliate or sale
or transfer of all or part of the assets or business of the Company or any
affiliate, or any other corporate act or proceeding.


 


6.                                       Determinations


 


Each
determination, interpretation or other action made or taken pursuant to the
provisions of this Agreement by the Committee or the Board in good faith shall
be final, conclusive and binding for all purposes and upon all persons,
including, without limitation, the Participant and the Company, and their
respective heirs, executors, administrators, personal representatives and other
successors in interest.


 


7.                                       Other
Conditions


 


The
transfer of any shares of Restricted Stock shall be effective only at such time
as counsel to the Company shall have determined that the issuance and delivery
of such shares of


 


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Restricted Stock are in compliance with all applicable laws,
regulations of governmental authority and the requirements of any securities
exchange on which Stock is traded.


 


8.                                       Withholding
Taxes


 


(a)                                  The
Participant shall be liable for any and all taxes and contributions of any kind
required by law to be withheld with respect to the vesting of Restricted Stock
(including Secondary Class 1 National Insurance Contribution amounts determined
in accordance with Section 8(b) below). 
The Participant agrees that the Participant’s employer (the “Employer”)
may, in its discretion, (i) require the Participant to remit to the Employer on
the date on which the Restricted Stock vests cash in an amount sufficient to
satisfy all applicable required withholding taxes and contributions related to
such vesting, or (ii) deduct from his regular salary payroll cash, on a payroll
date following the date on which the Restricted Stock vests, in an amount
sufficient to satisfy such obligations.


 


(b)                                 The
vesting of Restricted Stock is subject to the execution of a joint election
between the Employer and the Participant being formally approved by Inland
Revenue and remaining in force thereafter to provide for the transfer of any
Secondary Class 1 National Insurance Contribution liability in connection with
the Participant’s vesting in Restricted Stock. 
By accepting the Restricted Stock, Participant hereby consents to and agrees
to satisfy any liability the Employer realizes with respect to Secondary Class
1 National Insurance Contribution payments required to be paid by the Employer
in connection with the Restricted Stock. 
If the Company determines that any additional consents and/or elections
are required to accomplish the foregoing, Participant agrees to provide them
promptly upon request.


 


9.                                       Distribution
of Restricted Stock


 


Upon the vesting of any
Restricted Stock pursuant to the terms hereof, the restrictions of Sections 2
and 3 shall lapse with respect to such vested Restricted Stock.  Reasonably promptly after any Restricted
Stock vests, the Company shall cause to be delivered to the Participant a
certificate evidencing such Stock.


 


10.                                 Data
Privacy


 


The
Participant explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of the Participant’s personal data by
and among, as applicable, the Company and its Subsidiaries and Affiliates for
the exclusive purpose of implementing, administering and managing the
Participant’s participation in the priceline.com Incorporated 1999 Omnibus
Plan.  The Participant hereby understands
that the Company and its Subsidiaries and Affiliates hold certain personal
information about the Participant, including, but not limited to, the
Participant’s name, home address and telephone number, date of birth, social
insurance number or other identification number, salary, nationality, job
title, any shares of Stock or directorships held in the Company, details of all
Restricted Stock or any other entitlement to shares of Stock awarded, canceled,
exercised, vested, unvested or outstanding in the Participant’s favor, for the
purpose of implementing, administering and managing the Plan (“Data”).  The Participant hereby understands that Data
may be transferred to any third parties assisting in the implementation,
administration and management of the Plan, that these recipients may be located


 


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in the Participant’s country or elsewhere (including countries outside
of the European Union), and that the recipient’s country may have different
data privacy laws and protections than the Participant’s country.  The Participant hereby understands that the
Participant may request a list with the names and addresses of any potential
recipients of the Data by contacting the Participant’s local human resources
representative.  The Participant
authorizes the recipients to receive, possess, use, retain and transfer the
Data, in electronic or other form, for the purposes of implementing,
administering and managing the Participant’s participation in the Plan,
including any requisite transfer of such Data as may be required to a broker or
other third party with whom the Participant may elect to deposit any shares
acquired upon vesting of the Restricted Stock. 
The Participant hereby understands that Data will be held only as long
as is necessary to implement, administer and manage the Participant’s
participation in the Plan.  The Participant
hereby understands that the Participant may, at any time, view Data, request
additional information about the storage and processing of Data, require any
necessary amendments to Data or refuse or withdraw the consents herein, in any
case without cost, by contacting in writing the Participant’s local human
resources representative.  The
Participant hereby understands, however, that refusing or withdrawing the
Participant’s consent may affect the Participant’s ability to participate in
the Plan.  For more information on the
consequences of the Participant’s refusal to consent or withdrawal of consent,
the Participant hereby understands that the Participant may contact the
Participant’s local human resources representative.


 


11.                                 Nature
of Grant


 


The Participant
acknowledges and agrees that: (a) the Plan is established voluntarily by the
Company, it is discretionary in nature and it may be modified, amended,
suspended or terminated by the Company at any time;  (b) the grant of Restricted Stock is voluntary
and occasional and does not create any contractual or other right to receive
future grants of Restricted Stock, or benefits in lieu of Restricted Stock,
even if Restricted Stock has been granted repeatedly in the past; (c) all
decisions with respect to future Restricted Stock grants, if any, will be at
the sole discretion of the Company; (d) Participation in the Plan is voluntary;
(e) the Restricted Stock is not a part of normal or expected compensation or
salary for any purposes, including, but not limited to, calculating any
severance, resignation, termination, redundancy, end of service payments,
bonuses, long-service awards, pension or retirement benefits or similar
payments; (f) the future value of the underlying shares is unknown and cannot
be predicted with certainty; and (g) in consideration of the grant of
Restricted Stock, no claim or entitlement to compensation or damages shall
arise from termination of the Restricted Stock or diminution in value of the
Restricted Stock or shares received upon vesting including (without limitation)
any claim or entitlement resulting from termination of the Participant’s active
employment by the Company or a Subsidiary or Affiliate (for any reason
whatsoever and whether or not in breach of local labor laws) and the
Participant hereby releases the Company and its Subsidiaries and Affiliates
from any such claim that may arise; if, notwithstanding the foregoing, any such
claim is found by a court of competent jurisdiction to have arisen, then, by
signing this Restricted Stock Agreement, the Participant shall be deemed
irrevocably to have waived the Participant’s entitlement to pursue such claim.


 


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12.                                 Miscellaneous


 


(a)                                  This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, personal legal representatives, successors,
trustees, administrators, distributees, devisees and legatees.  The Company shall assign to, and require, any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree in writing to perform this
Agreement.  Notwithstanding the foregoing,
this Agreement may not be assigned by the Participant.


 


(b)                                 No
modification or waiver of any of the provisions of this Agreement shall be
effective unless in writing and signed by the party against whom it is sought
to be enforced.


 


(c)                                  This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one agreement.


 


(d)                                 The
failure of any party hereto at any time to require performance by another party
of any provision of this Agreement shall not affect the right of such party to
require performance of that provision, and any waiver by any party of any
breach of any provision of this Agreement shall not be construed as a waiver of
any continuing or succeeding breach of such provision, a waiver of the
provision itself, or a waiver of any right under this Agreement.


 


(e)                                  The
headings of the sections of this Agreement have been inserted for convenience
of reference only and shall in no way restrict or modify any of the terms or
provisions hereof.


 


(f)                                    The
Company shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and will from time to time use its reasonable
efforts to comply with all laws and regulations which, in the opinion of
counsel to the Company, are applicable thereto.


 


(g)                                 All
notices, consents, requests, approvals, instructions and other communications
provided for herein shall be in writing and validly given or made when
delivered, or on the second succeeding business day after being mailed by
registered or certified mail, whichever is earlier, to the persons entitled or
required to receive the same, at the addresses set forth at the heading of this
Agreement or to such other address as either party may designate by like
notice.  Notices to the Company shall be
addressed to its principal office, attention of the Company’s General Counsel.


 


(h)                                 The
Plan and this Agreement constitute the entire Agreement and understanding
between the parties with respect to the matters described herein and supercede
all prior and contemporaneous agreements and understandings, oral and written,
between the parties with respect to such subject matter.


 


(i)                                     This
Agreement shall be governed and construed and the legal relationships of the
parties determined in accordance with the laws of the state of Delaware without
reference to principles of conflict of laws.


 


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(j)                                     The
Company represents and warrants that it is duly authorized by its Board and/or
the Committee (and by any other person or body whose authorization is required)
to enter into this Agreement, that there is no agreement or other legal
restriction which would prevent it from entering into, and carrying out its
obligations under, this Agreement, and that the officer signing this Agreement
is duly authorized and empowered to sign this Agreement on behalf of the
Company.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.


 


	
   

  	
  PRICELINE.COM
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature

  



 


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