Exhibit 10.1


 


CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
PORTIONS OF THE DOCUMENT.  CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED AND FILED SPEARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.


 


PRICELINE.COM  INCORPORATED 1999 OMNIBUS PLAN


 


PERFORMANCE SHARE UNIT
AGREEMENT


 


THIS
PERFORMANCE SHARE UNIT AGREEMENT (“Agreement”) is made as of the 5th day of
March, 2008 by and between priceline.com Incorporated, a Delaware corporation,
with its principal United States office at 800 Connecticut Avenue, Norwalk,
Connecticut 06854, and
                                      
(the “Participant”).


 


WITNESSETH:


 


Pursuant
to terms of the priceline.com Incorporated 1999 Omnibus Plan (the “Plan”), the
Board of Directors of the Company (the “Board”) has authorized this
Agreement.  The Participant has been
granted as of March 5, 2008 (the “Grant Date”) the number of performance
share units (the “Performance Share Units”) 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.  The Performance
Share Units comprising this award may be recorded in an unfunded Performance
Share Unit account in the Participant’s name maintained by the Company.  The Participant will have no rights as a
stockholder of the Company by virtue of any Performance Share Unit awarded to
the Participant until shares of Stock (as defined below), if any, are issued to
the Participant as described in this Agreement.


 


1.                                       Definitions


 


(a)           “Adjusted
Consolidated EBITDA” shall mean priceline.com Incorporated’s consolidated
operating income before interest, taxes, depreciation and amortization
(including amortization of acquisition related intangibles) determined in
accordance with U.S. GAAP, adjusted to exclude the impact of stock-based
compensation expense.  The Committee
shall have the authority to make equitable adjustments to Adjusted Consolidated
EBITDA in recognition of unusual or non-recurring events affecting the
financial results of priceline.com Incorporated, or  in response to changes in laws or regulations, or to account
for items of gain, loss or expense determined to be extraordinary or unusual in
nature or infrequent in occurrence, or related to the acquisition of a business
or the disposition of a business or a segment of a business, or related to a
change in accounting principles.  All
adjustments made to Adjusted Consolidated EBITDA will be consistent with
adjustments made to priceline.com Incorporated’s publicly disclosed “pro forma”
EBITDA, except for those adjustments made in connection with an acquisition of
a business or the disposition of a business or a segment of a business, which,
in the Committee’s discretion, may not be consistent with adjustments made to
priceline.com Incorporated’s publicly disclosed “pro forma” EBITDA.


 


(b)           “Change
in Control” shall have the meaning given such term under Section 3(i).


 


(c)           “Change
in Control Period” shall mean the period commencing on the effective date of
the Change in Control and ending on the date immediately prior to the date
which is six (6) months after the effective date of the Change in Control.


 






[***] = CONFIDENTIAL TREATMENT REQUESTED FOR REDACTED PORTION; REDACTED
PORTION HAS BEEN FILED SEPARATELY WITH THE COMMISSION.


 

















 


(d)           “Code”
shall mean the U.S. Internal Revenue Code of 1986, as amended.


 


(e)           “Company”
shall mean priceline.com Incorporated, any of its subsidiaries or affiliates.


 


(f)            “Continuous
Service” shall mean the Participant’s service with the Company or any Subsidiary
or Affiliate whether as an employee, director or consultant, which is not
interrupted or terminated.


 


(g)           “Cumulative
Adjusted Consolidated EBITDA” shall mean the Adjusted Consolidated EBITDA
during the Performance Period, calculated on a cumulative basis, net of any
losses.


 


(h)           “Determination
Date” shall mean March 1, 2011.


 


(i)            “Disability”
shall mean that (i) the Participant is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months or (ii) the
Participant is, by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than three (3) months under
an accident and health plan covering employees of the Company.


 


(j)            “Good
Reason” shall mean (i) a material diminution in the Participant’s
authority, duties or responsibilities, (ii) relocation of the Company’s
executive office in Connecticut to a location more than thirty-five (35) miles
from its current location or more than thirty-five (35) miles further from the
Participant’s residence at the time of relocation, or (iii) any material
breach of an employment agreement, if any, that is in effect at any time
between the Participant and the Company.


 


Before a termination by a Participant will constitute
termination for Good Reason, the Participant must give the Company a Notice of
Good Reason within ninety (90) calendar days following the occurrence of the
event that constitutes Good Reason. 
Failure to provide such Notice of Good Reason within such 90-day period
shall be conclusive proof that the Participant shall not have Good Reason to
terminate employment.


 


Good Reason shall exist only if (A) the Employer
fails to remedy the event or events constituting Good Reason within thirty (30)
calendar days after receipt of the Notice of Good Reason from the Participant
and (B) the Participant terminates his or her employment within sixty (60)
days after the end of the period set forth in clause (A) above.  If the Participant determines that Good
Reason for termination exists and timely files a Notice of Good Reason, such
determination shall be presumed to be true and the Company will have the burden
of proving that Good Reason does not exist.


 


(k)           “Notice of Good Reason” means a written notice by
the Participant to the Company which sets forth in reasonable detail the
specific reason for a termination of employment for Good Reason and the facts
and circumstances claimed to provide a basis for


 






[***] = CONFIDENTIAL TREATMENT REQUESTED FOR REDACTED PORTION; REDACTED
PORTION HAS BEEN FILED SEPARATELY WITH THE COMMISSION.


 


2

















 


such termination and is provided to the Company in
accordance with the terms set forth in Section 1(j) hereof.


 


(l)            “Performance
Period” shall mean the period commencing on January 1, 2008 and ending on December 31,
2010.


 


(m)          “Plan
Year” shall mean the calendar year.


 


(n)           “Stock”
shall mean shares of common stock, par value $0.008, of the Company.


 


(o)           “Target
Amount” shall have the meaning given such term under Section 2.


 


(p)           “Vesting
Factor” means the factor by which to multiply the Target Amount determined in
accordance with the following table:


 


	
  If
  the Cumulative Adjusted Consolidated 

  EBITDA for the Performance Period is:

  	
   

  	
  Then the Vesting Factor or Vesting

  Factor Range is:

  	
   

  
	
  [***]

  	
   

  	
  0x

  	
   

  
	
  [***]

  	
   

  	
  0x to 1x

  	
   

  
	
  [***]

  	
   

  	
  1x

  	
   

  
	
  [***]

  	
   

  	
  1x to 2x

  	
   

  
	
  [***]

  	
   

  	
  2x

  	
   

  



 


Notwithstanding
any other provision of this Agreement to the contrary, the Committee, in its
sole discretion, may adjust the terms of the table set forth above in
connection with the acquisition of a business or the disposition of a business
or a segment of a business.


 


2.                                       The
Grant


 


Subject
to the terms and conditions set forth herein, the Participant is granted                     
(                    )
Performance Share Units as of the Grant Date (the “Target Amount”).


 


3.                                       Vesting;
Effect of Termination of Continuous Service; Change in Control


 


(a)           Vesting
at End of Performance Period.  If the
Participant remains in Continuous Service through and including the
Determination Date, then the Participant shall be entitled to receive a number
of shares of Stock determined by multiplying the Target Amount by the
Applicable Vesting Factor.  The “Applicable
Vesting Factor” shall be equal to either (i) the sole Vesting Factor that
corresponds to the actual Cumulative Adjusted Consolidated EBITDA set forth in
the table in Section 1(p) above in the event there is no Vesting
Factor Range, or (ii) the sum of (A) the lowest Vesting Factor in the
applicable Vesting Factor Range that corresponds to the actual Cumulative
Adjusted Consolidated EBITDA set forth in the table in Section 1(p) above,
plus (B) the ProRata Vesting Factor Increase.  The “ProRata Vesting Factor Increase” is the
quotient of (1) the excess of the actual Cumulative Adjusted Consolidated
EBITDA over the lowest Cumulative Adjusted Consolidated EBITDA in the range of
numbers in which the actual


 






[***] = CONFIDENTIAL TREATMENT REQUESTED FOR REDACTED PORTION; REDACTED
PORTION HAS BEEN FILED SEPARATELY WITH THE COMMISSION.


 


3

















 


Cumulative Adjusted Consolidated EBITDA falls (set
forth in the table in Section 1(p) above), divided by (2) the
result of a fraction, the numerator of which is the difference between the
lowest and highest Cumulative Adjusted Consolidated EBITDA in the range of
numbers in which the actual Cumulative Adjusted Consolidated EBITDA falls (set
forth in the table in Section 1(p) above), and the denominator of
which is the difference between the lowest and highest applicable Vesting
Factor in the applicable Vesting Factor Range (set forth in the table in Section 1(p) above).  All shares of Stock to be issued to the
Participant under this Section 3(a), if any, shall be issued to the
Participant as soon as practicable after the Determination Date but in no event
later than March 15, 2011.  If the
Participant becomes entitled to any shares of Stock under this Section 3(a),
he or she shall not be entitled to receive any shares of Stock under any other
subsection of this Section 3.


 


(b)           Termination
for Cause.  If, prior to the
Determination Date, the Participant’s Continuous Service is (i) terminated
by the Company  for Cause or (ii) voluntarily
terminated by the Participant other than on account of Good Reason, death or Disability, then the Participant shall receive
no shares of Stock under this Agreement.


 


(c)           Pre-2009
Termination Without a Change in Control. 
Subject to Section 3(e), if, on or prior to December 31, 2008,
the Participant’s Continuous Service is terminated by the Company other than
for Cause or by the Participant on account of Good Reason, death or Disability,
then the Participant (or the Participant’s designated beneficiary in the event
of the Participant’s death) shall receive a number of shares of Stock equal to
the Target Amount, multiplied by a fraction, the numerator of which is the
number of full months completed since January 1, 2008 as of the date of
such termination, and the denominator of which is 36.  Subject to Section 3(k), all shares of
Stock to be issued to the Participant under this Section 3(c), if any,
shall be issued to the Participant (or the Participant’s designated beneficiary
in the event of the Participant’s death) as soon as practicable after the
Participant’s Continuous Service is terminated but in no event later than March 15
of the calendar year following the calendar year in which the Participant’s
Continuous Service is terminated.


 


(d)           Post-2008
Termination Without a Change in Control. 
Subject to Section 3(f), if, after December 31, 2008, but
prior to the Determination Date and prior to a Change in Control, the
Participant’s Continuous Service is terminated by the Company other than for
Cause or by the Participant on account of Good Reason, death or Disability,
then the Participant’s Performance Share Unit number shall be determined (or
that of the Participant’s designated beneficiary in the event of the
Participant’s death) in accordance with Exhibit 1, and the Participant
shall at the time of such termination be vested in a number of shares of Stock
determined by the product of (i) such Performance Share Unit number,
multiplied by (ii) a fraction, the numerator of which is the lesser of 36
or the number of full months completed since January 1, 2008 as of the
date of such termination, and the denominator of which is 36.  Subject to Section 3(k), all shares of
Stock to be issued to the Participant under this Section 3(d), if any,
shall be issued to the Participant (or the Participant’s designated beneficiary
in the event of the Participant’s death) as soon as practicable after the
Participant’s Continuous Service is terminated but in no event later than March 15
of the calendar year following the calendar year in which the Participant’s
Continuous Service is terminated (or, if the Participant’s Continuous Service
is terminated on or after January 1, 2011, March 15, 2011).  If the Participant becomes


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


4





















 


entitled to any shares of Stock under this Section 3(d),
he or she shall not be entitled to receive any shares of Stock under any other
subsection of this Section 3.


 


(e)           Pre-2009
Change in Control Without Termination. 
If there is a Change in Control on or prior to December 31, 2008,
and the Participant remains in Continuous Service through the date which is six
(6) months after the effective date of the Change in Control (“Six-Month
Date”), then the Participant shall be vested in a number of shares of Stock
equal to the Target Amount, multiplied by a fraction, the numerator of which is
the number of full months completed since January 1, 2008 as of the
Six-Month Date, and the denominator of which is 36.  Subject to Section 3(k), all shares of
Stock to be issued to the Participant under this Section 3(e), if any,
shall be issued to the Participant as soon as practicable after the Six-Month
Date but in no event later than March 15 of the calendar year following
the calendar year in which the Six-Month Date occurs; provided, however,
that if the Change in Control triggering the right to payment under this Section 3(e) does
not constitute a permitted distribution event under Section 409A(a)(2) of
the Code, then notwithstanding anything in this Section 3(e) to the
contrary, issuance of the shares of Stock will be made, to the extent necessary
to comply with Section 409A of the Code, to the Participant on (or within
60 days after) the earlier of (i) the Participant’s “separation from
service” with the Company (determined in accordance with Section 409A of
the Code); (ii) the Determination Date; or (iii) the Participant’s
death.


 


(f)            Post-2008
Change in Control Without Termination. 
If there is a Change in Control after December 31, 2008, but prior
to the Determination Date, and the Participant remains in Continuous Service
through the Six-Month Date, then the Participant’s Performance Share Unit
number shall be determined in accordance with Exhibit 1, and the
Participant shall, on such Six-Month Date, be vested in a number of shares of
Stock determined by the product of (i) such Performance Share Unit number,
multiplied by (ii) a fraction, the numerator of which is the lesser of 36
and the number of full months completed since January 1, 2008 as of the
date of the Six-Month Date, and the denominator of which is 36.  Thereafter, the Participant shall become
vested as of the Determination Date in a number of shares of Stock equal to the
product of the Target Amount, multiplied by the fraction resulting from one (1) minus
the fraction set forth in Section 3(f)(ii) of this paragraph,
provided that, in the event that the Participant’s Continuous Service is
terminated prior to the Determination Date by the Company other than for Cause
or by the Participant on account of Good Reason, death or Disability, the
Participant shall be vested in a number of shares of Stock equal to the Target
Amount, multiplied by a fraction, the numerator of which is the number of full
months that have been completed during the period commencing on the Six-Month
Date and ending on the date of such termination, and the denominator of which
is the number of full months during the period commencing on the Six-Month Date
and ending December 31, 2010.  All
shares of Stock to be issued to the Participant under this Section 3(f),
if any, shall be issued to the Participant (A) subject to Section 3(k),
as soon as practicable after the Participant’s Continuous Service is
terminated, or (B) as soon as practicable after the Determination Date,
but in either such case, in no event later than March 15, 2011, whichever
occurs earlier.  If the Participant
becomes entitled to any shares of Stock or cash under this Section 3(f),
he or she shall not be entitled to receive any shares of Stock under any other
subsection of this Section 3.


 


(g)           Termination
During a Pre-2009 Change in Control Period. 
If there is a Change in Control on or prior to December 31, 2008,
and the Participant’s Continuous Service is terminated


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


5





















 


by the Company other than for Cause or by the
Participant on account of Good Reason, death or Disability during the Change in
Control Period, then the Participant (or the Participant’s designated
beneficiary in the event of the Participant’s death) shall receive a number of
shares of Stock equal to the Target Amount, multiplied by a fraction, the
numerator of which is the number of full months completed since January 1,
2008 as of the date of such termination, and the denominator of which is
36.  Subject to Section 3(k), all
shares of Stock to be issued to the Participant under this Section 3(g),
if any, shall be issued to the Participant (or the Participant’s designated
beneficiary in the event of the Participant’s death) as soon as practicable
after the Participant’s Continuous Service is terminated but in no event later
than March 15 of the calendar year following the calendar year in which
the Participant’s Continuous Service is terminated.


 


(h)           Termination
During a Post-2008 Change in Control Period.  If there is a Change in Control after December 31,
2008, but prior to the Determination Date, and the Participant’s Continuous
Service is terminated during the Change in Control Period  by the Company other than for Cause or by
the Participant on account of Good Reason, death or Disability, then the
Participant’s Performance Share Unit number (or that of the Participant’s
designated beneficiary in the event of the Participant’s death) shall be
determined in accordance with Exhibit 1, and the Participant shall
be vested at the time of such termination in the sum of (i) a number of
shares of Stock determined by multiplying such Performance Share Unit number by
a fraction, the numerator of which is the lesser of 36 and the number of full
months completed since January 1, 2008 as of the date of such Change in
Control, and the denominator of which is 36, and (ii) a number of shares
of Stock equal to the product of the Target Amount, multiplied by the fraction
resulting from one (1) minus the fraction set forth in Section 3(h)(i) of
this paragraph.  Subject to Section 3(k),
all shares of Stock to be issued to the Participant under this Section 3(h) as
a result of the Participant’s termination of Continuous Service after the
effective date of the Change in Control, if any, shall be issued to the
Participant (or the Participant’s designated beneficiary in the event of the
Participant’s death) as soon as practicable after the Participant’s Continuous
Service is terminated but in no event later than March 15 of the calendar
year following the calendar year in which the Participant’s Continuous Service
is terminated.  If the Participant
becomes entitled to any shares of Stock under this Section 3(h), he or she
shall not be entitled to receive any shares of Stock under any other subsection
of this Section 3.


 


(i)            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


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


6





















 


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 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, 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


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


7





















 


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 to a percentage equal to or greater than 35, a Change in Control of the
Company shall then be deemed to occur.


 


(j)            For
the purposes of Section 3(i) (and with respect to Section 3(j)(i),
for purposes of Section 1(f)), 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 U.S. 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.


 


(k)           Notwithstanding
anything in this Agreement to the contrary, if the Participant is a “specified
employee” (within the meaning of Section 409A of the Code) and the
issuance of the shares of Stock pursuant to Sections 3(c), 3(d), 3(g), or 3(h),
clause (i) of the proviso in Section 3(e), or clause (A) of the
next to last sentence of Section 3(f) is considered to be a “deferral
of compensation” (as such phrase is defined for purposes of Section 409A
of the Code), then the Participant’s date of issuance of the shares of Stock
shall be the date that is the first day of the seventh month after the date of
the Participant’s “separation from service” with the Company (determined in
accordance with Section 409A of the Code).


 


(l)            For
purposes of calculations made under this Section 3, results shall be
rounded to the nearest 100th using the common rounding method (i.e.,
increase the last digit by 1 if the next digit is 5 or more).


 


4.                                       Nontransferability
of Grant


 


Except
as otherwise provided herein or in the Plan, no Performance Share Units shall
be assigned, negotiated, pledged, or hypothecated in any way or be subject to
execution, attachment or similar process. 
No transfer of the Participant’s rights with respect to such Performance
Share Units, whether voluntary or involuntary, by operation of law or
otherwise, shall be permitted.


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


8





















 


Immediately upon any attempt to transfer such rights,
such Performance Share Units, and all of the rights related thereto, shall be
forfeited by the Participant.


 


5.                                       Distribution
and Voting Rights


 


Performance
Share Units shall have no distribution, dividend or voting rights.


 


6.                                       Stock;
Adjustment Upon Certain Events


 


(a)           Stock
to be issued under this Agreement, if any, 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 Performance Share Units 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.


 


(c)           If
an acquiring entity does not agree to the continuation and future vesting of
the Performance Share Units hereunder and other conditions that apply in the
event of a Change in Control, then the number of Performance Share Units
granted hereunder shall be fully vested upon a Change in Control.


 


(d)           In
the event of any dividend or other distribution (whether in the form of cash,
Stock, or other property), recapitalization, Stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or
share exchange, or other similar corporate 
transaction or event that affects the Stock such that an adjustment is
required in order to prevent dilution or enlargement of the rights of holders
of Performance Share Units under the Plan, then the Committee shall make such
equitable changes or adjustments to any or all of (i) the number and kind
of shares of Stock or other property (including cash) that may thereafter be
issued in connection with the Performance Share Units granted under the Plan, (ii) the
number and kind of shares of Stock or other property (including cash) issued or
issuable in respect of outstanding Performance Share Units, (iii) performance
targets, and (iv) any individual limitations applicable to the Performance
Share Units granted under the Plan.


 


7.                                       Determinations


 


The
Committee (by proper delegation or otherwise) shall determine the extent to
which an award has been earned, if at all, in accordance with Section 3 of
this Agreement on or prior to the Determination Date.  Such determination and all other
determinations, interpretations or other actions 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


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


9





















 


persons, including, without limitation, the
Participant and the Company, and their respective heirs, executors,
administrators, personal representatives and other successors in interest.


 


8.                                       Other
Conditions


 


The
transfer of any Stock under this Agreement, if any, shall be effective only at
such time as counsel to the Company shall have determined that the issuance and
delivery of such Stock is in compliance with all applicable laws, regulations
of governmental authority and the requirements of any securities exchange on
which Stock is traded.


 


9.                                       Withholding
Taxes


 


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 delivery of any shares of
Stock under this Agreement.  The
Participant agrees that the Participant’s employer may, in its discretion, (a) require
the Participant to remit to the Company on the date on which the Participant
becomes the owner of shares of Stock under this Agreement cash in an amount
sufficient to satisfy all applicable required withholding taxes and social security
contributions related to such vesting, (b) deduct from his or her regular
salary payroll cash, on a payroll date coincident with or following the date on
which the Participant becomes the owner of shares of Stock under this
Agreement, in an amount sufficient to satisfy such obligations, or (c) withhold
from the total number of shares of Stock the Participant is to receive on a
determination date a number of shares that has a total value equal to the
amount necessary to satisfy any and all such withholding tax obligations.


 


10.                                 Distribution
of Stock


 


Subject to Section 8, the Company shall cause the
Participant to be the record owner of any shares of Stock to which the
Participant becomes entitled to receive under this Agreement in accordance with
the payment terms described in Section 3.


 


11.                                 Incorporation
of the Plan


 


The
Plan, as it exists on the date of this Agreement and as amended from time to
time, is hereby incorporated by reference and made a part hereof, and the
Performance Share Units and this Agreement shall be subject to all terms and
conditions of the Plan.  In the event of
any conflict between the provisions of this Agreement and the provisions of the
Plan, the terms of the Plan shall control, except as expressly stated
otherwise.


 


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.


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


10





















 


(b)           The
Participant acknowledges that the Company intends for the information contained
in Section 1(p) and Exhibit 1 hereof to remain
confidential.  Notwithstanding any other
provision hereof, the Participant’s entitlement to any award or payment
hereunder is contingent upon the Participant maintaining the confidentiality of
the information contained in Section 1(p) and Exhibit 1.  The Participant agrees that he or she shall
not disclose or cause the disclosure of such information and shall hold such
information confidential.


 


(c)           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.  To the extent
applicable, it is intended that this Agreement comply with the provisions of Section 409A
of the Code, so that the income inclusion provisions of Section 409A(a)(1) of
the Code do not apply to the Participant. 
This Agreement shall be administered in a manner consistent with this
intent.  References to Section 409A
of the Code will also include any regulations or any other formal guidance
promulgated with respect to such Section by the U.S. Department of the
Treasury or the Internal Revenue Service.


 


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


 


(e)           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.


 


(f)            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.


 


(g)           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.


 


(h)           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.


 


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


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


11





















 


(j)            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.


 


(k)           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


 


 


Jeffery Boyd

Chief Executive Officer


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE COMMISSION.


 


12





















 


Exhibit 1


 


The Performance Share Unit number shall be determined
in accordance with the following chart if, prior to January 1, 2011, the
Six-Month Date occurs or the Participant’s Continuous Service terminates.  If the Six-Month Date occurs or the
Participant’s Continuous Service terminates on or after January 1, 2011,
the Performance Share Unit number shall be determined in accordance with the
table in Section 1(p) hereof. 
Upon any date of determination before January 1, 2011 as set forth
in the Agreement, the Participant’s Performance Share Unit number shall be
determined as of the most recently completed fiscal quarter for the period
commencing January 1, 2008.  Such
Performance Share Unit number shall be equal to the product of (1) the
Target Amount, multiplied by either (2)(a) the sole Mid-Period Vesting
Factor under the column with the heading “Mid-Period Vesting Factor Ranges” in
the chart below corresponding to the actual Cumulative Adjusted Consolidated
EBITDA per applicable quarter for which the determination is made or (b) the
sum of (i) the lowest Mid-Period Vesting Factor in the applicable
Mid-Period Vesting Factor Range corresponding to the actual Cumulative Adjusted
Consolidated EBITDA per applicable quarter for which the determination is made,
plus (ii) the ProRata Mid-Period Vesting Factor Increase.


 


All amounts are in millions of U.S. dollars.


 


	
  Cumulative

  Adjusted Consolidated EBITDA

  per

  specified

  quarter

  	
   

  	
  4th fiscal

  quarter

  completed since

  l/l/08

  	
   

  	
  5th fiscal

  quarter

  completed since

  1/l/08

  	
   

  	
  6th fiscal

  quarter

  completed

  since

  1/1/08

  	
   

  	
  7th fiscal

  quarter

  completed

  since

  1/1/08

  	
   

  	
  8th fiscal

  quarter

  completed

  since

  l/l/08

  	
   

  	
  9th fiscal

  quarter

  completed

  since

  1/1/08

  	
   

  	
  10th fiscal

  quarter

  completed

  since

  1/1/08

  	
   

  	
  11th fiscal

  quarter

  completed

  since

  1/1/08

  	
   

  	
  Mid-Period Vesting

  Factor Ranges

  (Earned

  shares as a

  factor of the

  Target

  Amount)

  	
   

  
	
  Less than

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Equals Zero

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal to or greater
  than

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Equals Zero to 1x

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  But less than

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal to or greater
  than

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Equals 1x

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  But less than

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal to or greater
  than

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Equals 1x to 2x

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  But less than

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal to or greater
  than

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

   

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Equals 2x

  	
   

  



 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


13





















 


The “ProRata Mid-Period Vesting  Factor Increase” means the quotient of (1) the
excess of the actual Cumulative Adjusted Consolidated EBITDA over the lowest
Cumulative Adjusted Consolidated EBITDA within the specified range per the
applicable quarter for which the determination is made, divided by (2) the
result of a fraction, the numerator of which is the difference between the
lowest and highest Cumulative Adjusted Consolidated EBITDA within such
specified range per the applicable quarter for which the determination is made,
and the denominator of which is the difference between the lowest and highest
specified Mid-Period Vesting Factor for such quarter.


 


EXAMPLES


 


[***]


 










[***] = CONFIDENTIAL TREATMENT REQUESTED FOR
REDACTED PORTION; REDACTED PORTION HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.


 


14