Exhibit 10.1
priceline.com incorporated 1999
omnibus plan
PERFORMANCE SHARE AGREEMENT
THIS PERFORMANCE SHARE AGREEMENT
(“Agreement”) is made as of the 28 th day of February 2006 by and between
priceline.com Incorporated, a Delaware corporation, with its
principal United States office at 800 Connecticut Avenue, Norwalk,
Connecticut 06854 (the “Company”), and
(the “Participant”).
W I T N E S S E T H:
Pursuant to terms of the
priceline.com Incorporated 1999 Omnibus Plan (the
“Plan”), the Board of Directors of the Company has
authorized this Agreement. The Participant has been granted on
February 28, 2006 (the “Grant Date”), subject to
execution of this Agreement, the number of performance shares (the
“Performance Shares”) 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 Shares
comprising this award may be recorded in an unfunded Performance
Share 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 awarded to him until shares of Stock (as
defined below), if any, are issued to the Participant as described
in this Agreement.
1.
Definitions
(a)
“Annual EPS Percentage”
shall mean for each of the Company and each member of the Peer
Group, the annual increase or decrease in the EPS from the
immediately preceding Plan Year expressed as a
percentage.
(b)
“Cause” shall mean
(i) if the Participant is employed pursuant to an employment
agreement which defines “cause” in such agreement,
“cause” as defined in such agreement and (ii) if
the Participant is not described in (i) it shall mean
“cause” as defined in the Plan.
(c)
“Change in Control”
shall have the meaning given such term under
Section 3(g).
(d)
“Change in Control
Period” shall mean the period commencing six (6) months
prior to 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.
(e)
“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.
(f)
“Determination Date”
shall mean February 28, 2009.
(g)
“Disability” shall have
the meaning given such term under the Plan.
(h)
“Division” shall mean
Cendant Corporation’s Travel Distribution Services
division.
(i)
“EPS” shall mean
(i) for the Company, pro forma net income applicable to common
stockholders per diluted share as publicly disclosed annually in
connection with annual earnings announcements, (ii) for
Expedia, Inc. and Sabre Holdings Corporation, adjusted
earnings per share as publicly disclosed annually in connection
with annual earnings announcements, and (iii) for the
Division, the publicly disclosed annual non-GAAP financial measure
which is similar to the EPS of the Company; in each case calculated
based upon the past practice and subject to adjustment as
permitted under Section 2(z) of the Plan. In the event
the Company or any member of the Peer Group changes the way EPS is
calculated, EPS for such entity shall mean the publicly disclosed
annual non-GAAP financial measure which is intended to replace (or
which is substantially similar to) the EPS prior to such
change.
(j)
“EPS Ratio” shall mean a
fraction equal to the average Annual EPS Percentage for the Company
during the Performance Period divided by the average of the average
Annual EPS Percentage for each member of the Peer Group during the
Performance Period; provided , however, that (i) in no
event will the EPS Ratio exceed 3.0, (ii) if the numerator of
the EPS Ratio is negative and the denominator is positive, the EPS
Ratio will be deemed to be zero, (iii) if the numerator of the
EPS Ratio is positive and the denominator is negative, the EPS
Ratio will be deemed to be 3.0, (iv) if both the numerator and
denominator of the EPS Ratio are negative, but the denominator is
closer to zero than the numerator, then the numerator and
denominator will be inverted for purposes of determining the EPS
Ratio, and (v) if any member is added to or removed from the
Peer Group, the fraction described herein will be calculated on a
weighted average basis based on the time the member was in the Peer
Group.
(k)
“Peer Group” shall mean
Expedia, Inc. and Sabre Holdings Corporation and shall include
the Division if, and only if, the Division is a separate entity
which publicly discloses a non-GAAP financial measure
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similar to EPS of the Company and
shall include any successor entity or successor division to such
companies provided such successor entity or division continues to
publicly disclose EPS for the business carried on by such member of
the Peer Group as of the Grant Date.
(m)
“Performance Period”
shall mean the period commencing on the January 1, 2006 and
ending on December 31, 2008.
(n)
“Plan Year” shall mean
the calendar year.
(o)
“Quarterly EPS Ratio”
shall mean a fraction determined in the same manner as the EPS
Ratio but with the following modifications: (i) for the year
in which the Participant’s Continuous Service terminates (or
for purposes of Section 3(e), the year in which the Change in
Control occurs), EPS shall be based on EPS as publicly disclosed
quarterly (rather than annually) in connection with quarterly
(rather than annual) earnings announcements, (ii) for the year
in which the Participant’s Continuous Service terminates (or
for purposes of Section 3(e), the year in which the Change in
Control occurs), the Annual EPS Percentage for both the Company and
the Peer Group for such year shall be the increase or decrease in
the EPS through the most recently completed calendar quarter
occurring prior to the Participant’s termination of
Continuous Service from the EPS for the identical period occurring
in the immediately preceding Plan Year ( e.g. , if the
Participant terminated Continuous Service in November of 2008,
(A) the EPS for the year ending December 31, 2006 would
be compared to the EPS for the year ending December 31, 2005
to determine the Annual EPS Percentage for 2006, (B) the EPS
for the year ending December 31, 2007 would be compared to the
EPS for the year ending December 31, 2006 to determine the
Annual EPS Percentage for 2007 and (C) the EPS for the three
quarters of 2008 ending September 30, 2008 would be compared
to the EPS for the three quarters of 2007 ending September 30,
2007 to determine the Annual EPS Percentage for 2008),
(iii) the determination of the average Annual EPS Percentage
shall not include any period after the Participant ceases
Continuous Service and (iv) the average Annual EPS Percentage
shall be calculated on a weighted average basis.
(q)
“Stock” shall mean
shares of common stock, par value $0.008, of the
Company.
2.
The Grant
(a)
Subject to the terms and conditions set forth herein, the
Participant is granted (________) Performance Shares as of the
Grant Date.
3.
Vesting; Effect of Termination of Continuous Service; Change in
Control
(a)
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 Performance Share number by the EPS Ratio;
provided , however, that (i) if the EPS Ratio is less
than 0.75, the Participant shall receive no shares of Stock under
this Agreement, (ii) if both the numerator and denominator of
the EPS Ratio are negative, but the numerator is closer to zero
than the denominator, then the Participant shall be entitled to
receive a number of shares of Stock determined by multiplying the
Performance Share number by seventy percent (70%) without regard to
the EPS Ratio, and (iii) if both the numerator and denominator
of the EPS Ratio are negative, but the denominator is closer to
zero than the numerator, then (subject to (i) above) the
Participant shall be entitled to receive a number of shares of
Stock determined by multiplying the Performance Share number by
seventy percent (70%) and then multiplying the product so obtained
by the EPS Ratio. 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, 2010. If the
Participant becomes entitled to any shares of Stock under this
Section 3(a), he shall not be entitled to receive any shares
of Stock under any other subsection of this
Section 3.
(b)
Subject to Section 3(f), if, on or prior to December 31,
2006, the Participant’s Continuous Service is terminated for
any reason, then the Participant shall receive no shares of Stock
under this Agreement.
(c)
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 for any
reason, then the Participant shall receive no shares of Stock under
this Agreement.
(d)
Subject to Section 3(f), if, after December 31, 2006 but
prior to the Determination Date, the Participant’s Continuous
Service is (i) terminated by the Company for any reason other
than Cause or (ii) terminated as the result of the
Participant’s death or Disability, then the Participant (or
the Participant’s designated beneficiary in the event of
the
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Participant’s death) shall
receive a number of shares of Stock determined by multiplying the
Performance Share number by the Quarterly EPS Ratio and multiplying
the product thereof by a fraction the numerator of which is the
number of full calendar months the Participant was in Continuous
Service during the Performance Period and the denominator of which
is 36; provided , however, that (i) if the Quarterly
EPS Ratio is less than 0.75, the Participant shall receive no
shares of Stock under this Agreement, (ii) if both the
numerator and denominator of the Quarterly EPS Ratio are negative,
but the numerator is closer to zero than the denominator, then the
Participant shall be entitled to receive a number of shares of
Stock determined by multiplying the Performance Share number by
seventy percent (70%) without regard to the Quarterly EPS Ratio and
then multiplying the product so obtained by a fraction the
numerator of which is the number of full calendar months the
Participant was in Continuous Service during the Performance Period
and the denominator of which is 36, and (iii) if both the
numerator and denominator of the Quarterly EPS Ratio are negative,
but the denominator is closer to zero than the numerator, then
(subject to (i) of this proviso above) the Participant shall
be entitled to receive a number of shares of Stock determined by
multiplying the Performance Share number by seventy percent (70%)
and then multiplying the product so obtained by the Quarterly EPS
Ratio and then multiplying the product so obtained by a fraction
the numerator of which is the number of full calendar months the
Participant was in Continuous Service during the Performance Period
and the denominator of which is 36. 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
Participant’s Continuous Service ceases but in no event later
than March 15 of the calendar year following the calendar year
in which the Participant’s Continuous Service ceases. If the
Participant becomes entitled to any shares of Stock under this
Section 3(d), he shall not be entitled to receive any shares
of Stock under any other subsection of this
Section 3.
(e)
If there is a Change in Control on or prior to December 31,
2006 and the Participant remains in Continuous Service through the
date which is six (6) months after the effective date of the
Change in Control, then the Participant shall receive a number of
shares of Stock equal to the Performance Share number. If there is
a Change in Control after December 31, 2006 but prior to the
Determination Date and the Participant remains in Continuous
Service through the date which is six (6) months after the
effective date of the Change in Control, then the Participant shall
receive a number of shares of Stock determined by multiplying the
Performance Share number by the Quarterly EPS Ratio;
provided , however, that (i) if the Quarterly EPS Ratio
is less than 0.75, the Participant shall receive no shares of Stock
under this Agreement, (ii) if both the numerator and
denominator of the Quarterly EPS Ratio are negative, but the
numerator is closer to zero than the denominator, then the
Participant shall be entitled to receive a number of shares of
Stock determined by multiplying the Performance Share number by
seventy percent (70%) without regard to the Quarterly EPS Ratio,
and (iii) if both the numerator and denominator of the
Quarterly EPS Ratio are negative, but the denominator is closer to
zero than the numerator, then (subject to (i) above) the
Participant shall be entitled to receive a number of shares of
Stock determined by multiplying the Performance Share number by
seventy percent (70%) and then multiplying the product so obtained
by the Quarterly EPS Ratio. All shares of Stock to be issued to the
Participant under this Section 3(e), if any, shall be issued
to the Participant as s
