Exhibit 10.86


 


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                       , 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,                       (            )
shares of the Restricted Stock granted under this Agreement (the “Consideration
Shares”) shall vest on [February 28, 2006]. 
For avoidance of doubt, there shall be no proportionate or partial
vesting of Consideration Shares prior to [February 28, 2006].  All other shares of Restricted Stock granted
under this Agreement which are not Consideration Shares shall be referred to as
“General Shares”.


 


(c)                                  Subject
to Section 3 hereof, one-fourth (1/4) of the General Shares shall vest on [February
28, 2006] (the “Initial General Shares Vesting Date”) and an additional one-fourth
(1/4) of the General Shares shall vest on each of the first, second and third
anniversaries of the Initial General Shares 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 of General Shares in the periods prior to each
vesting date and vesting shall occur only on the applicable vesting dates
pursuant to this Section 1(c).  Upon satisfaction
of the vesting requirements set forth in this Section 1(c), the restrictions on
the vested General Shares, as set forth in Section 3 of this Agreement, shall
lapse.


 


(d)                                 For
purposes of this Agreement, “Continuous Service” shall mean the Participant’s
service with the Company or any Subsidiary or Affiliate as an employee is not
interrupted or terminated.


 





















 


2.                                       Restrictions
On Consideration Shares


 


(a)                                  If,
prior to [February 28, 2006], the Participant in any way fails to comply with
the terms and conditions of Addendum A, all Consideration Shares shall be
immediately forfeited and canceled.


 


(b)                                 If
the Participant has a termination of Continuous Service as a result of the
Participant’s death prior to [February 28, 2006], all Consideration Shares
shall be immediately forfeited and canceled.


 


(c)                                  In
the event of a Change in Control occurring prior to [February 28, 2006], the
Participant shall be fully vested in all Consideration Shares, 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 the earlier of [February 28, 2006]
or six (6) months after the effective date of the Change in Control.  In the event that the Participant’s
Continuous Service is terminated prior to February 28, 2006 (other than for
Cause) by the Company in anticipation of a Change in Control, then the
Participant shall be fully vested in all Consideration Shares. 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.  If
there is a Change in Control prior to February 28, 2006 and the Participant’s
Continuous Service is terminated by the Company during the period beginning on
the effective date of such Change in Control and ending on the earlier of [February
28, 2006] or the date which is six (6) months after the effective date of a
Change in Control, then the Participant shall be fully vested in all
Consideration Shares.


 


3.                                       Restrictions
on General Shares


 


(a)                                  Subject
to Section 3(b) below, upon the Participant’s termination of Continuous
Service, the unvested portion of the General Shares shall be immediately
forfeited and canceled.


 


(b)                                 In
the event of a Change in Control, the Participant shall be fully vested in all
General Shares, 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 General Shares.  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.


 


4.                                       Definition
of Change in Control


 


(a)                                  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


 


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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
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


 


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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).


 


(b)                                 For
the purposes of Section 4(a), 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 proportions as their
ownership of shares of 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.


 


5.                                       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


 


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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.


 


6.                                       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.


 


7.                                       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.


 


8.                                       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.


 


9.                                       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 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.


 


10.                                 Notification
of Election Under Section 83(b) of the Code


 


If the
Participant shall, in connection with the grant of Restricted Stock under this
Agreement, make the election permitted under Section 83(b) of the Internal
Revenue Code (i.e., an election
to include in gross income in the year of transfer the amounts specified in
Section 83(b) of the Internal Revenue Code), then the Participant shall notify
the Company of such election within 10 days of filing notice of the election
with the Internal Revenue Service.


 


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11.                                 Withholding
Taxes


 


The Participant shall be
liable for any and all U.S. federal, state or local taxes of any kind required
by law to be withheld with respect to the vesting of Restricted Stock.  When the Restricted Stock vests, the
Participant shall surrender to the Company a sufficient number of whole shares
of Stock as necessary to cover all applicable required withholding taxes and
social security contributions related to such vesting.  The Company will provide the Participant with
a cash refund for any fraction of surrendered shares of Stock not necessary for
required withholding taxes and social security contributions.  Instead of requiring the Participant to
surrender shares as described above, the Company may, in its discretion, (a)
require the Participant to remit to the Company on the date on which the
Restricted Stock vests cash in an amount sufficient to satisfy all applicable
required withholding taxes and social security contributions related to such
vesting, or (b) 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.


 


In lieu of surrendering
shares of Stock to cover all applicable required withholding taxes and social
security contributions, the Participant may, by providing notice to the Company
within 30 days of the Grant Date (a) elect to remit to the Company on the date
on which the Restricted Stock vests cash in an amount sufficient to satisfy
such obligations, or (b) request the Company to 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, which request
the Committee may choose to honor in its sole discretion.  Notwithstanding the foregoing, if the
Participant makes an election under Section 10 above, the Participant shall
remit to the Company in cash an amount sufficient to satisfy any withholding
obligations at the time the notice described in Section 10 is delivered to the
Company.


 


12.                                 Distribution
of Restricted Stock


 


Upon the vesting of any
Restricted Stock pursuant to the terms hereof, the restrictions of Sections 2
or 3 (as the case may be) and Section 5 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.


 


13.                                 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.


 


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(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.


 


(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.


 


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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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ADDENDUM A


 


This Noncompetition, Nonsolicitation and Nondisclosure
Agreement (the “Agreement”) is dated February      ,
2005 by and between priceline.com Incorporated, a Delaware corporation (“Company”),
and [executive’s name] (“Executive”).


 


The parties, intending to
be legally bound, agree as follows:


 


1.                                      ACKNOWLEDGEMENTS


 


(a)                                  The
Executive acknowledges that the Company has expended and shall continue to
expend substantial amounts of time, money and effort to develop business
strategies, employee and customer relationships and goodwill and build an
effective organization.  The Executive
acknowledges that the Executive is and shall become familiar with the Company’s
Confidential Information (as defined below), including trade secrets, and that
the Executive’s services are of special, unique and extraordinary value to the
Company, its subsidiaries and Affiliates (as defined below).  The Executive acknowledges that the Company
has a legitimate business interest and right in protecting its Confidential
Information, business strategies, employee and customer relationships and
goodwill, and that the Company would be seriously and irreparably damaged by
the disclosure of Confidential Information and the loss or deterioration of its
business strategies, employee and customer relationships and goodwill.  For purposes of this Agreement, “Affiliate”
means, with respect to any specified person or entity, any other person or
entity that directly or indirectly, through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such specified
person or entity; and “Control” (including, with correlative meanings,
the terms “Controlled by” and “under common Control with”), as
used with respect to any person or entity, means the direct or indirect
possession of the power to direct or cause the direction of the management or
policies of such person or entity, whether through the ownership of voting
securities, by contract or otherwise.


 


(b)                                 The
Executive acknowledges (i) that the business of the Company, its subsidiaries
and Affiliates will be global in scope and without geographical limitation and
(ii) notwithstanding the jurisdiction of formation or principal office of the
Company, its subsidiaries and Affiliates, or any of their respective executives
or employees (including, without limitation, the Executive), it is expected
that the Company and its subsidiaries and Affiliates will have business
activities and have valuable business relationships within its industry
throughout the world.  In addition, the
Executive agrees and acknowledges that the potential harm to the Company of the
non-enforcement of Section 2, 3, 4 or 5 outweighs any potential harm to the
Executive of its enforcement by injunction or otherwise.


 


(c)                                  The
Executive acknowledges that he has carefully read this Agreement and has given
careful consideration to the restraints imposed upon the Executive by this
Agreement, and is in full accord as to their necessity for the reasonable and
proper protection of the Confidential Information, business strategies,
employee and customer relationships and goodwill of the Company and its
subsidiaries and Affiliates now existing or to be developed in the future.  The Executive expressly acknowledges and
agrees that each and every restraint imposed by this Agreement is reasonable
with respect to subject matter, time period and geographical area.  The Executive further acknowledges that
although the Executive’s compliance with the covenants


 





















 


contained in Sections 2, 3 and 4 may prevent the Executive from earning
a livelihood in a business similar to the business of the Company, the
Executive’s experience and capabilities are such that the Executive has other
opportunities to earn a livelihood and adequate means of support for the
Executive and the Executive’s dependents.


 


2.                                      NONCOMPETITION
AND NONSOLICITATION


 


(a)                                  The Executive agrees that the
Executive shall not, while an employee of the Company, and for the duration of
the Restriction Period (as defined below), directly or indirectly, without the
prior written consent of the Company:


 


(i)                                     (A)                              engage
in any activities, in any capacity, for or on behalf of or invest in any of the
following companies or their successors (the “Competitive Activities”):  (i) any travel businesses of InterActive
Corporation, provided that the restriction in this clause (i)(A)(i) shall cease
to apply upon the completion of the spin-off of Expedia from InterActive
Corporation; (ii) Expedia, Hotels.com & Hotwire; (iii) Sabre Group; (iv)
Lastminute.com plc; (v) the following companies or divisions owned or
controlled by Cendant’s Travel Distribution Services (a subsidiary of Cendant
Corporation):  Orbitz, CheapTickets,
Lodging.com, the Neat Group and Galileo; (vi) the following on-line travel
aggregators: SideStep, Inc. (owner and operator of the website SideStep.com),
Mobissimo, Inc. (owner and operator of the website Mobissimo.com), Cheapflights
Limited (owner and operator of the website Cheapflights.com), Farechase,
Kayak.com, or any substantially similar on-line travel search business; and
(vii) on-line travel search businesses of Yahoo!, MSN, AOL or Google;


 


(B)                                solicit
or attempt to solicit any customer or client or actively sought prospective
customer or client of the Company or any of its subsidiaries or Affiliates,
with respect to the businesses actively operated by the Company or any of its
subsidiaries or Affiliates (it being intended that businesses owned but not
operated by the Company or any of its subsidiaries or Affiliates, such as, as
of the date hereof, the Company’s mortgage business, are not to be covered by
this clause (B)), to purchase any travel related goods or services of the type
sold by the Company or any of its subsidiaries or Affiliates from anyone other
than the Company or any of its subsidiaries or Affiliates; provided,
however, that the general advertisement for goods or services, other
than on behalf of an entity identified in Section 2(a)(i)(A)(i) through (vii)
above, shall not violate the terms of this Section 2(a)(i)(B) or 


 


(C)                                assist
any person or entity in any way to do, or attempt to do, anything prohibited by
(A) or (B) above; or


 


(ii)                                  (A)                              solicit,
recruit or hire any employees of the Company or any of its subsidiaries or
Affiliates or any persons who, within one year of such solicitation,
recruitment or hire, have worked for the Company or any of its subsidiaries or
Affiliates;


 


(B)                                solicit
or encourage any employee of Company or any of its subsidiaries or Affiliates
to leave the services of the Company or any of its subsidiaries or Affiliates;
and


 


(C)                                intentionally
interfere with the relationship of the Company or any of its subsidiaries or
Affiliates with any person who or which is employed by or otherwise


 


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engaged to perform services for the Company or any of its subsidiaries
or Affiliates; provided, that neither (1) the general advertisement for
employees or the general solicitation of employees by a recruiter or (2) the
Executive’s being named as an employment reference for a current or former
employee of the Company and responding to ordinary course inquiries made of the
Executive by prospective employers of such employee in connection with such
reference, shall be deemed a violation of this clause (ii).


 


The “Restriction
Period” means the one-year period following the cessation or termination of
the Executive’s employment with the Company for any reason.  The Restriction Period shall be tolled during
(and shall be deemed automatically extended by) any period in which the
Executive is in violation of the provisions of this Section 2.


 


(b)                                 Notwithstanding
anything to the contrary contained in this Agreement, the foregoing covenant
will not be deemed breached as a result of (i) the Executive’s passive
ownership of less than an aggregate of 5% of any class of securities of a
person or entity engaged, directly or indirectly, in Competitive Activities; provided,
however, that such stock is listed on a national securities exchange or
is quoted on the National Market System of NASDAQ; or (ii) the Executive having
an ownership interest in any of the companies or businesses listed or described
in Section 2(a)(i)(A)(ii) through (vii) provided that the services performed by
the Executive in the course of such activities are not in any way connected
with the activities of such companies or businesses.


 


(c)                                  If
a final and non-appealable judicial determination is made that any of the
provisions of this Section 2 constitutes an unreasonable or otherwise
unenforceable restriction against the Executive, the provisions of this
Section 2 will not be rendered void but will be deemed to be modified to
the minimum extent necessary to remain in force and effect for the longest
period and largest geographic area that would not constitute such an
unreasonable or unenforceable restriction. 
Moreover, notwithstanding the fact that any provision of this
Section 2 is determined not to be specifically enforceable, the Company
will nevertheless be entitled to recover monetary damages as a result of the
Executive’s breach of such provision.


 


3.                                      NONDISCLOSURE
OF CONFIDENTIAL INFORMATION


 


                (a)                                  The
Executive acknowledges that the Confidential Information obtained by the
Executive while employed by the Company and its subsidiaries and Affiliates is
the property of the Company or its subsidiaries and Affiliates, as applicable.  Therefore, the Executive agrees that the
Executive shall not disclose to any unauthorized person or entity or use for
the Executive’s own purposes any Confidential Information without the prior
written consent of the Company, unless and to the extent that the aforementioned
matters (i) become generally known to and available for use by the public other
than as a result of the Executive’s acts or omissions in violation of this
Agreement or (ii) were within the Executive’s possession prior to its being
obtained by the Executive in the course of the Executive’s employment with the
Company and its subsidiaries and Affiliates; provided, however,
that if the Executive receives a request to disclose Confidential Information
pursuant to a deposition, interrogation, request for information or documents
in legal proceedings, subpoena, civil investigative demand, governmental or
regulatory process or similar process, (A) the Executive shall promptly notify
in writing the Company, and consult with and assist the Company in seeking a
protective order or


 


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request for other appropriate remedy, (B) in the event that such
protective order or remedy is not obtained, or if the Company waive compliance
with the terms hereof, the Executive shall disclose only that portion of the
Confidential Information which, in the written opinion of the Executive’s legal
counsel, is legally required to be disclosed and shall exercise reasonable best
efforts to assure that confidential treatment shall be accorded to such
Confidential Information by the receiving person or entity and (C) the Company
shall be given an opportunity to review the Confidential Information prior to
disclosure thereof.


 


                (b)                                 For
purposes of this Agreement, “Confidential Information” means
information, observations and data concerning the business or affairs of the
Company and its subsidiaries and Affiliates, including, without limitation, all
business information (whether or not in written form) which relates to the
Company, its subsidiaries or Affiliates, or their customers, suppliers or
contractors or any other third parties in respect of which the Company or its
subsidiaries or Affiliates has a business relationship or owes a duty of
confidentiality, or their respective businesses or products, and which is not
known to the public generally other than as a result of the Executive’s breach
of this Agreement, including but not limited to:  technical information or reports; trade
secrets; unwritten knowledge and “know-how”; operating instructions; training
manuals; customer lists; customer buying records and habits; product sales
records and documents, and product development, marketing and sales strategies;
market surveys; marketing plans; profitability analyses; product cost; long-range
plans; information relating to pricing, competitive strategies and new product
development; information relating to any forms of compensation or other
personnel-related information; contracts; and supplier lists.  Confidential Information will not include
such information known to the Executive prior to the Executive’s involvement
with the Company or its subsidiaries or Affiliates or information rightfully
obtained from a third party (other than pursuant to a breach by the Executive
of this Agreement).  Without limiting the
foregoing, the Executive agrees to keep confidential the existence of, and any
information concerning, any dispute between the Executive and the Company or
its subsidiaries and Affiliates, except that the Executive may disclose information
concerning such dispute to the court that is considering such dispute or to the
Executive’s legal counsel (provided that such counsel agrees not to disclose
any such information other than as necessary to the prosecution or defense of
such dispute).


 


                (c)                                  Except
as expressly set forth otherwise in this Agreement, the Executive agrees that
the Executive shall not disclose the terms of this Agreement, except to the
Executive’s immediate family and the Executive’s financial and legal advisors,
or as may be required by law or ordered by a court of competent
jurisdiction.  The Executive further
agrees that any disclosure to the Executive’s financial and legal advisors will
only be made after such advisors acknowledge and agree to maintain the
confidentiality of this Agreement and its terms.


 


                (d)                                 The
Executive further agrees that the Executive will not improperly use or disclose
any confidential information or trade secrets, if any, of any former employers
or any other person or entity to whom the Executive has an obligation of
confidentiality, and will not bring onto the premises of the Company, its
subsidiaries or Affiliates any unpublished documents or any property belonging
to any former employer or any other person or entity to whom the Executive has
an obligation of confidentiality unless consented to in writing by the former
employer or person or entity.


 


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4.                                      RETURN
OF PROPERTY


 


The Executive acknowledges that all notes, memoranda,
specifications, devices, formulas, records, files, lists, drawings, documents,
models, equipment, property, computer, software or intellectual property
relating to the businesses of the Company and its subsidiaries and Affiliates,
in whatever form (including electronic), and all copies thereof, that are
received or created by the Executive while an employee of the Company or its
subsidiaries and Affiliates (including but not limited to Confidential
Information) are and shall remain the property of the Company and its subsidiaries
and Affiliates, and the Executive shall immediately return such property to the
Company upon the termination of the Executive’s employment and, in any event,
at the Company’s request.  The Executive
further agrees that any property situated on the premises of, and owned by, the
Company or its subsidiaries and Affiliates, including disks and other storage
media, filing cabinets or other work areas, is subject to inspection by Company’s
personnel at any time with or without notice.


 


5.                                      NONDISPARAGEMENT


 


While an employee of the Company, and for the one-year
period following cessation or the termination of the Executive’s employment
with the Company for any reason, neither Executive nor the Company shall
publicly or with the intent to become public make any statements, written or
oral, which disparage or defame the goodwill or reputation of, in the Executive’s
case, the Company formally or, its directors or senior officers or, in the
Company’s case, the Executive.


 


6.                                      NOTIFICATION
OF SUBSEQUENT EMPLOYER


 


The Executive hereby agrees that prior to accepting
employment with any other person or entity during any period during which the
Executive remains subject to any of the covenants set forth in Section 2, the
Executive shall provide such prospective employer with written notice of such
provisions of this Agreement, with a copy of such notice delivered
simultaneously to the Company.


 


7.                                      REMEDIES
AND INJUNCTIVE RELIEF


 


The Executive acknowledges that a violation by the
Executive of any of the covenants contained in Section 2, 3, 4 or 5 would cause
irreparable damage to the Company in an amount that would be material but not
readily ascertainable, and that any remedy at law (including the payment of
damages) would be inadequate. 
Accordingly, the Executive agrees that, notwithstanding any provision of
this Agreement to the contrary, the Company shall be entitled (without the
necessity of showing economic loss or other actual damage) to injunctive relief
(including temporary restraining orders, preliminary injunctions and/or
permanent injunctions) in any court of competent jurisdiction for any actual or
threatened breach of any of the covenants set forth in Section 2, 3, 4 or 5 in
addition to any other legal or equitable remedies it may have.  The preceding sentence shall not be construed
as a waiver of the rights that the Company may have for damages under this
Agreement or otherwise, and all of the Company’s rights shall be unrestricted.


 


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8.                                      CONSIDERATION.  
In consideration for the Executive’s covenants herein, the Company has granted
to the Executive the Consideration Shares, as defined in the Restricted Stock
Agreement by and between the Company and the Executive dated [February 1, 2005].


 


9.                                      MISCELLANEOUS


 


(a)                                  Notices.  All notices,
consents, waivers, and other communications under this Agreement must be in
writing and will be deemed given to a party when (i) delivered to the
appropriate address by hand or by nationally recognized overnight courier
service (costs prepaid, with written confirmation of receipt); (ii) sent by
facsimile with written confirmation of transmission by the transmitting
equipment, provided that a copy is sent by certified mail, return receipt
requested; or (iii) received or rejected by the addressee, if sent by certified
mail, return receipt requested; in each case to the following addresses or
facsimile numbers and marked to the attention of the individual (by name or
title) designated below (or to such other address, facsimile number, or individual
as a party may designate by notice to the other parties):


 


(i)                                     if
to the Company, to:


 


priceline.com Incorporated


800 Connecticut Avenue


Norwalk, CT  06854


Attention: 
Peter J. Millones, Executive President and General


Counsel


fax: 
203-299-8915


 


(ii)                                  if
to Executive, to Executive’s address on the books and records of the Company
from time to time


 


or such other
addresses as the parties may have furnished to each other pursuant to the
provisions of this Section.


 


                (b)                                 Entire Agreement and Modification.  This Agreement supersedes all prior
agreements between the parties with respect to its subject matter, and
constitutes a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This Agreement may not
be amended, supplemented or otherwise modified except by a written agreement
executed by the parties.


 


                (c)                                  Construction.  In this Agreement, the word “including”
indicates examples of a foregoing general statement and not a limitation on
that general statement.  No provision of
this Agreement will be interpreted for or against any party because that party
or its legal representative drafted the provision.


 


                (d)                                 Assignments.  The
Company may assign this Agreement or any of its rights and duties hereunder,
without Executive’s consent, to any subsidiary or affiliate of the Company or
any person or entity which acquires all or substantially all of the assets or
business of the Company or any of the Company’s divisions.  This Agreement is personal to Executive and
may not be assigned by Executive. 
Subject to the foregoing, this Agreement will apply to,


 


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be binding in all respects upon, and inure to the benefit of Executive’s
heirs, executors, administrators and permitted assigned and the Company’s
successors and permitted assigns.


 


                (e)                                  Waiver.  The parties’
rights hereunder are cumulative and not alternative.  Neither the failure nor any delay by any
party in exercising any right, power, or privilege hereunder will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power,
or privilege.  To the maximum extent
permitted by applicable law:  (i) no
claim or right arising out of this Agreement can be discharged by a party, in
whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (ii) no waiver that may be given by a
party will be applicable except in the specific instance for which it is given;
and (iii) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided
herein.  The Executive will not assert
that the Company’s failure or refusal to enforce or delay in enforcing against
any of its other employees or former employees any agreement containing
obligations identical or similar to those contained in this Agreement
constitutes a waiver of the Company’s rights hereunder.


 


                (g)                                 Governing Law; Jurisdiction; Service of Process.  This Agreement will be governed by and
construed under the laws of Connecticut without regard to conflicts of laws
principles that would require the application of any other law.  Any action or proceeding arising out of or
relating to this Agreement may be brought in the courts of the State of
Connecticut, County of Fairfield, or, if it has or can acquire jurisdiction, in
the United States District Court for Connecticut.  Each of the parties irrevocably submits to
the jurisdiction of such courts in any such action or proceeding and waives any
objection it may now or hereafter have to venue or convenience of forum.  Process in any action or proceeding referred
to in the preceding sentence may be served on any party anywhere in the world.


 


                (h)                                 Counterparts.  This
Agreement may be executed in one or more counterparts.


 


The
parties have executed this Agreement on the date first written above.


 


	
   

  	
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