Form of Grant Agreement Exhibit


PRICELINE.COM INCORPORATED 1999 OMNIBUS PLAN
PERFORMANCE SHARE UNIT AGREEMENT
THIS PERFORMANCE SHARE UNIT AGREEMENT (“Agreement”) is made 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, as of the Grant Date, which is set forth in the grant header to this Agreement on the website of the Company’s third-party equity plan administrator (to be referred to herein as the “Grant Header”).  Pursuant to terms of the priceline.com Incorporated 1999 Omnibus Plan, as amended (the “Plan”), the Board of Directors of the Company (the “Board”) has authorized this Agreement.  
Unless otherwise indicated, any capitalized term used herein, but not defined herein, shall have the meaning ascribed to such term in the Plan.  
		
	1.
	Definitions


(a)    “Company” shall mean priceline.com Incorporated, any of its subsidiaries or affiliates.  
(b)    “Consolidated Non-GAAP EBITDA” shall mean the Company’s operating income, excluding depreciation and amortization expense and including the impact of foreign currency transactions and other expense, all determined in accordance with U.S. GAAP, adjusted to exclude the impact of those items excluded from the non-GAAP financial metric “non-GAAP EBITDA,” as publicly disclosed annually or quarterly, as applicable, by the Company in connection with the Company’s annual and quarterly earnings announcements.  Consolidated Non-GAAP EBITDA as publicly disclosed typically excludes and/or includes items that are, among other things, non-cash in nature, or related to unusual or non-recurring events, or in response to changes in laws or regulations, or to account for gains, losses or expenses determined to be extraordinary or unusual in nature or infrequent in occurrence, or are unpredictable as to amount or timing, not driven by core operating results and render comparisons with prior periods less meaningful, 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.  Consolidated Non-GAAP EBITDA shall also be adjusted (i) to exclude the financial results from any acquisition or to include the prospective forecasted results for any disposition of a business or a segment of a business made during the Performance Period, and (ii) to exclude the on-going impact of change in accounting principles.  Notwithstanding the foregoing, in determining Consolidated Non-GAAP EBITDA, the Committee shall have the authority to make additional adjustments that it considers, in its good faith judgment, necessary to maintain the intent and principles consistent with the foregoing adjustments.  Due to the fact that Consolidated Non-GAAP EBITDA is comprised of items denominated in several foreign currencies, for purposes of expressing Consolidated Non-GAAP EBITDA in the single currency of U.S. dollars, the Company shall have designated, on or before the Grant Date, the portions of the Consolidated Non-GAAP EBITDA that shall be considered attributed to amounts denominated in each of Euros, British Pounds and U.S. dollars and shall use fixed exchange rates between such currencies, as established at the beginning of the Performance Period, to calculate the Consolidated Non-GAAP EBITDA hereunder. 



(c)    “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.
(d)    “Cumulative Consolidated Non-GAAP EBITDA” shall mean the Consolidated Non-GAAP EBITDA during the Performance Period, calculated on a cumulative basis, net of any losses. 
(e)    “Determination Date” shall mean March 4, 2015. 
(f)    “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.  
(g)    “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.  
(h)    “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 such termination and is provided to the Company in accordance with the terms set forth in Section 1(g) hereof.
(i)    “Performance Period” shall mean the period commencing on January 1, 2012 and ending on December 31, 2014.
(j)    “Plan Year” shall mean the calendar year.



(k)    “Stock” shall mean shares of common stock, par value $0.008, of the Company.
(l)    “Target Amount” shall have the meaning given such term under Section 2.
(m)    “Vesting Factor” means the factor by which to multiply the Target Amount determined in accordance with the following table:
[Table]
		
	2.
	The Grant


Subject to the terms and conditions set forth herein, the Participant hereby is granted on the Grant Date the number of Performance Share Units as indicated on the Grant Header under “Grant Amount” (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 and no Change in Control occurs prior to 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 Consolidated Non-GAAP EBITDA set forth in the table in Section 1(m) 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 Consolidated Non-GAAP EBITDA set forth in the table in Section 1(m) above, plus (B) the ProRata Vesting Factor Increase.  The “ProRata Vesting Factor Increase” is the quotient of (1) the excess of the actual Cumulative Consolidated Non-GAAP EBITDA over the lowest Cumulative Consolidated Non-GAAP EBITDA in the range of numbers in which the actual Cumulative Consolidated Non-GAAP EBITDA falls (set forth in the table in Section 1(m) above), divided by (2) the result of a fraction, the numerator of which is the difference between the lowest and highest Cumulative Consolidated Non-GAAP EBITDA in the range of numbers in which the actual Cumulative Consolidated Non-GAAP EBITDA falls (set forth in the table in Section 1(m) 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(m) 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, 2015.  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.  For purposes of this Agreement, “Cause” shall have the meaning as set forth in the Plan and shall also include a material breach by the Participant of any non-competition, non-solicitation or other similar restrictive covenant that the Participant 



has entered into with the Company or a Subsidiary.  
(c)    Termination Prior to a Change in Control.  If, 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, 2012 as of the date of such termination, and the denominator of which is 36.  Subject to Section 3(f), 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 (or, if the Participant’s Continuous Service is terminated on or after January 1, 2015, March 15, 2015).  If the Participant becomes entitled to any shares of Stock under this Section 3(c), he or she shall not be entitled to receive any shares of Stock under any other subsection of this Section 3. 
(d)    Change in Control.  If a Change in Control occurs prior to the Determination Date and the Participant remains in Continuous Service through and including the Determination Date, then the Participant’s Performance Share Unit number shall be determined in accordance with Exhibit 1, and the Participant shall be vested in (i) if the Change in Control occurs prior to January 1, 2015, the sum of (A) 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, 2012 as of the date of such Change in Control, and the denominator of which is 36, and (B) a number of shares of Stock equal to the product of the Target Amount, multiplied by the fraction, the numerator of which is the number of full months that have been completed during the period commencing on the Change in Control and ending on December 31, 2014 (plus one (1) if the Change in Control occurs on any day of the month other than the first or last day), and the denominator of which is 36, or (ii) if the Change in Control occurs on or after January 1, 2015, a number of shares of Stock equal to the Performance Share Unit number.  All shares of Stock to be issued to the Participant under this Section 3(d), if any, shall be issued to the Participant as soon as practicable after the Determination Date but in no event later than March 15, 2015.  If the Participant becomes 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)    Termination Coincident with or Following a Change in Control.  If a Change in Control occurs prior to the Determination Date, and the Participant’s Continuous Service is terminated prior to the Determination Date in connection with such Change in Control or following such Change in Control 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 (i) if the termination occurs prior to January 1, 2015, the sum of (A) 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, 2012 as of the effective date of such Change in Control, and the denominator of which is 36, and (B) a number of shares of Stock equal to the product of the Target Amount, multiplied by the fraction, the numerator of which is the number of full months that have been completed during the period commencing on the effective date of the Change in Control and ending on the earlier of December 31, 2014 or the date of such termination (plus one (1) if the termination occurs on any day of the month other than the first or last day), and the denominator of which is 36, or (ii) if the termination occurs on or after January 1, 2015, a number of shares of Stock equal to the Performance Share Unit number.  Subject to Section 3(f), all shares of Stock to be issued to the Participant under this Section 3(e) as a result of the Participant’s termination of Continuous Service on or 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(e), he or she shall not be entitled to receive any shares of Stock under any other subsection of this Section 3.
(f)    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) or 3(e) 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).  
(g)    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.  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, and 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, if any, are issued to the Participant as described in this Agreement.



		
	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)    Upon a Change in Control, the purchaser(s) of the Company’s assets or stock or the surviving entity in a merger or consolidation may, in his, her or its discretion, deliver to the Participant the same kind of consideration that is delivered to the stockholders of the Company as a result of such Change in Control, or the Board may cancel all outstanding Performance Share Units in exchange for consideration in cash or in kind which consideration in both cases shall be determined by the Board.  
(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 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.





		
	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.
(b)    The Participant acknowledges that the Company intends for the information 



contained in Section 1(m) 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(m) 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, this Agreement and the Grant Header 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.
(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 



Exhibit 1


The Performance Share Unit number shall be determined in accordance with this Exhibit 1 if, prior to the Determination Date, a Change in Control occurs and/or the Participant’s Continuous Service terminates.  If no Change in Control occurs or the Participant’s Continuous Service does not terminate prior to the Determination Date, the Performance Share Unit number shall be determined in accordance with the table in Section 1(m) hereof.  Upon any date of determination before the Determination Date as set forth in the Agreement or in connection with a determination pursuant to Section 3(d) hereof, the Participant’s Performance Share Unit number shall be determined as of the most recently completed fiscal quarter for the period commencing January 1, 2012.  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 Consolidated Non-GAAP 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 Consolidated Non-GAAP EBITDA per applicable quarter for which the determination is made, plus (ii) the ProRata Mid-Period Vesting Factor Increase.
The “ProRata Mid-Period Vesting Factor Increase” means the quotient of (1) the excess of the actual Cumulative Consolidated Non-GAAP EBITDA over the lowest Cumulative Consolidated Non-GAAP 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 Consolidated Non-GAAP 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.




[Table]