The Priceline Group
PRICELINE COM INC (Form: 10-Q, Received: 11/07/2011 17:04:12)

Table of Contents

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 10-Q

 

(Mark One)

 

x       QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended September 30, 2011

 

OR

 

o          TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from                    to

 

Commission File Number 0-25581

 

PRICELINE.COM INCORPORATED

(Exact name of Registrant as specified in its charter)

 

Delaware

 

06-1528493

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. Employer
Identification Number)

 

800 Connecticut Avenue

Norwalk, Connecticut 06854

(address of principal executive offices)

 

(203) 299-8000

(Registrant’s telephone number, including area code)

 

N/A

(Former name, former address and former fiscal year, if changed, since last report)

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports); and (2) has been subject to such filing requirements for the past 90 days.   YES x NO o .

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).   YES x NO  o .

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer.  See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act (Check one):

 

Large accelerated filer x

 

Accelerated filer o

 

 

 

Non-accelerated filer o

 

Smaller reporting company o

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).   Yes o No x

 

Number of shares of Common Stock outstanding at October 31, 2011:

 

Common Stock, par value $0.008 per share

 

49,783,482

(Class)

 

(Number of Shares)

 

 

 



Table of Contents

 

priceline.com Incorporated

Form 10-Q

 

For the Three Months Ended September 30, 2011

 

PART I - FINANCIAL INFORMATION

 

 

 

Item 1. Unaudited Consolidated Financial Statements

2

 

 

Consolidated Balance Sheets (unaudited) at September 30, 2011 and December 31, 2010

2

Consolidated Statements of Operations (unaudited) For the Three and Nine Months Ended September 30, 2011 and 2010

3

Consolidated Statement of Changes in Stockholders’ Equity (unaudited) For the Nine Months Ended September 30, 2011

4

Consolidated Statements of Cash Flows (unaudited) For the Nine Months Ended September 30, 2011 and 2010

5

Notes to Unaudited Consolidated Financial Statements

6

 

 

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

28

 

 

Item 3. Quantitative and Qualitative Disclosures About Market Risk

62

 

 

Item 4. Controls and Procedures

64

 

 

PART II - OTHER INFORMATION

 

 

 

Item 1. Legal Proceedings

65

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

65

Item 5. Other Information

65

Item 6. Exhibits

66

 

 

SIGNATURES

67

 

1



Table of Contents

 

PART I — FINANCIAL INFORMATION

Item 1.  Unaudited Consolidated Financial Statements

priceline.com Incorporated

UNAUDITED CONSOLIDATED BALANCE SHEETS

(In thousands, except share and per share data)

 

 

 

September 30,

2011

 

December 31, 
2010

 

ASSETS

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

421,166

 

$

358,967

 

Restricted cash

 

3,851

 

1,050

 

Short-term investments

 

1,983,467

 

1,303,251

 

Accounts receivable, net of allowance for doubtful accounts of $6,833 and $6,353 respectively

 

345,339

 

162,426

 

Prepaid expenses and other current assets

 

95,906

 

61,211

 

Deferred income taxes

 

32,248

 

70,559

 

Total current assets

 

2,881,977

 

1,957,464

 

Property and equipment, net

 

53,843

 

39,739

 

Intangible assets, net

 

210,693

 

232,030

 

Goodwill

 

510,154

 

510,894

 

Deferred income taxes

 

137,462

 

151,408

 

Other assets

 

21,444

 

14,418

 

Total assets

 

$

3,815,573

 

$

2,905,953

 

 

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Accounts payable

 

$

169,545

 

$

90,311

 

Accrued expenses and other current liabilities

 

305,745

 

243,767

 

Deferred merchant bookings

 

213,802

 

136,915

 

Convertible debt (see Note 9)

 

492,169

 

175

 

Total current liabilities

 

1,181,261

 

471,168

 

 

 

 

 

 

 

Deferred income taxes

 

47,448

 

56,440

 

Other long-term liabilities

 

37,119

 

42,990

 

Convertible debt (see Note 9)

 

 

476,230

 

Total liabilities

 

1,265,828

 

1,046,828

 

 

 

 

 

 

 

Redeemable noncontrolling interests (see Note 12)

 

76,615

 

45,751

 

Convertible debt (see Note 9)

 

82,831

 

38

 

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

Common stock, $0.008 par value; authorized 1,000,000,000 shares, 57,561,537 and 56,567,236 shares issued, respectively

 

446

 

438

 

Treasury stock, 7,778,107 and 7,421,128 shares, respectively

 

(802,784

)

(640,415

)

Additional paid-in capital

 

2,394,034

 

2,417,092

 

Accumulated earnings

 

858,438

 

69,110

 

Accumulated other comprehensive loss

 

(59,835

)

(32,889

)

Total stockholders’ equity

 

2,390,299

 

1,813,336

 

Total liabilities and stockholders’ equity

 

$

3,815,573

 

$

2,905,953

 

 

See Notes to Unaudited Consolidated Financial Statements.

 

2



Table of Contents

 

priceline.com Incorporated

UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS

(In thousands, except per share data)

 

 

 

Three Months Ended
September 30,

 

Nine Months Ended
September 30,

 

 

 

2011

 

2010

 

2011

 

2010

 

Merchant revenues

 

$

573,230

 

$

494,473

 

$

1,558,564

 

$

1,309,407

 

Agency revenues

 

876,601

 

504,010

 

1,797,204

 

1,034,765

 

Other revenues

 

2,973

 

3,274

 

9,071

 

9,419

 

Total revenues

 

1,452,804

 

1,001,757

 

3,364,839

 

2,353,591

 

Cost of revenues

 

352,656

 

335,569

 

1,009,657

 

923,032

 

Gross profit

 

1,100,148

 

666,188

 

2,355,182

 

1,430,559

 

Operating expenses:

 

 

 

 

 

 

 

 

 

Advertising — Online

 

279,926

 

172,727

 

701,317

 

418,354

 

Advertising — Offline

 

8,035

 

7,773

 

29,463

 

29,684

 

Sales and marketing

 

47,124

 

33,060

 

122,931

 

85,663

 

Personnel, including stock-based compensation of $13,298, $21,176, $40,404 and $48,550, respectively

 

94,463

 

82,007

 

255,450

 

194,635

 

General and administrative

 

31,717

 

15,730

 

87,334

 

56,224

 

Information technology

 

8,548

 

5,347

 

23,456

 

14,850

 

Depreciation and amortization

 

13,957

 

12,775

 

40,087

 

33,312

 

Total operating expenses

 

483,770

 

329,419

 

1,260,038

 

832,722

 

Operating income

 

616,378

 

336,769

 

1,095,144

 

597,837

 

Other income (expense):

 

 

 

 

 

 

 

 

 

Interest income

 

2,526

 

918

 

6,075

 

2,713

 

Interest expense

 

(7,879

)

(8,293

)

(23,389

)

(22,366

)

Foreign currency transactions and other

 

827

 

(10,715

)

(8,696

)

(12,806

)

Total other income (expense)

 

(4,526

)

(18,090

)

(26,010

)

(32,459

)

Earnings before income taxes

 

611,852

 

318,679

 

1,069,134

 

565,378

 

Income tax expense

 

(138,966

)

(94,119

)

(235,959

)

(172,347

)

Net income

 

472,886

 

224,560

 

833,175

 

393,031

 

Less: net income attributable to noncontrolling interests

 

3,387

 

1,580

 

2,520

 

1,219

 

Net income applicable to common stockholders

 

$

469,499

 

$

222,980

 

$

830,655

 

$

391,812

 

Net income applicable to common stockholders per basic common share

 

$

9.43

 

$

4.59

 

$

16.74

 

$

8.24

 

Weighted average number of basic common shares outstanding

 

49,779

 

48,570

 

49,607

 

47,565

 

Net income applicable to common stockholders per diluted common share

 

$

9.17

 

$

4.41

 

$

16.23

 

$

7.70

 

Weighted average number of diluted common shares outstanding

 

51,184

 

50,559

 

51,193

 

50,917

 

 

See Notes to Unaudited Consolidated Financial Statements.

 

3



Table of Contents

 

priceline.com Incorporated

UNAUDITED CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS’ EQUITY

FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2011

(In thousands)

 

 

 

Common Stock

 

Treasury Stock

 

Additional

 

Accumulated

 

Accumulated
Other
Comprehensive

 

Comprehensive

 

 

 

 

 

Shares

 

Amount

 

Shares

 

Amount

 

Paid-in Capital

 

Earnings

 

Income (Loss)

 

Income

 

Total

 

Balance, December 31, 2010

 

56,567

 

$

438

 

(7,421

)

$

(640,415

)

$

2,417,092

 

$

69,110

 

$

(32,889

)

 

 

$

1,813,336

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income applicable to common stockholders

 

 

 

 

 

 

830,655

 

 

$

830,655

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unrealized gain on marketable securities, net of tax of $112

 

 

 

 

 

 

 

180

 

180

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Currency translation adjustments, net of tax of $4,598

 

 

 

 

 

 

 

(27,126

)

(27,126

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comprehensive income

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$

803,709

 

803,709

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Redeemable noncontrolling interests fair value adjustments

 

 

 

 

 

 

(41,327

)

 

 

 

(41,327

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Reclassification adjustment for convertible debt in mezzanine

 

 

 

 

 

(82,793

)

 

 

 

 

(82,793

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conversion of debt

 

5

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exercise of stock options and vesting of restricted stock units and/or performance share units

 

990

 

8

 

 

 

3,983

 

 

 

 

 

3,991

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Repurchase of common stock

 

 

 

(357

)

(162,369

)

 

 

 

 

 

(162,369

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stock-based compensation and other stock-based payments

 

 

 

 

 

40,756

 

 

 

 

 

40,756

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Excess tax benefit on stock-based compensation

 

 

 

 

 

14,996

 

 

 

 

 

14,996

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance, September 30, 2011

 

57,562

 

$

446

 

(7,778

)

$

(802,784

)

$

2,394,034

 

$

858,438

 

$

(59,835

)

 

 

$

2,390,299

 

 

See Notes to Unaudited Consolidated Financial Statements.

 

4



Table of Contents

 

priceline.com Incorporated

UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS

(In thousands)

 

 

 

Nine Months Ended
September 30,

 

 

 

2011

 

2010

 

OPERATING ACTIVITIES:

 

 

 

 

 

Net income

 

$

833,175

 

$

393,031

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

Depreciation

 

14,801

 

12,068

 

Amortization

 

25,286

 

24,193

 

Provision for uncollectible accounts, net

 

7,641

 

5,737

 

Deferred income taxes

 

34,170

 

33,650

 

Stock-based compensation expense and other stock-based payments

 

40,756

 

48,628

 

Amortization of debt issuance costs

 

1,676

 

2,785

 

Amortization of debt discount

 

15,944

 

14,948

 

Loss on early extinguishment of debt

 

32

 

11,334

 

Changes in assets and liabilities:

 

 

 

 

 

Accounts receivable

 

(202,087

)

(112,755

)

Prepaid expenses and other current assets

 

5,981

 

(8,034

)

Accounts payable, accrued expenses and other current liabilities

 

292,160

 

169,898

 

Other

 

(9,564

)

1,897

 

Net cash provided by operating activities

 

1,059,971

 

597,380

 

INVESTING ACTIVITIES:

 

 

 

 

 

Purchase of investments

 

(2,230,661

)

(1,030,011

)

Proceeds from sale of investments

 

1,529,998

 

665,925

 

Additions to property and equipment

 

(29,770

)

(14,471

)

Acquisitions and other equity investments, net of cash acquired

 

(67,973

)

(110,972

)

Proceeds from settlement of foreign currency contracts

 

5,205

 

44,564

 

Payments on foreign currency contracts

 

(42,032

)

(4,283

)

Change in restricted cash

 

(2,920

)

156

 

Net cash used in investing activities

 

(838,153

)

(449,092

)

FINANCING ACTIVITIES:

 

 

 

 

 

Proceeds from the issuance of convertible debt

 

 

575,000

 

Payment of debt issuance costs

 

 

(13,334

)

Payments related to conversion of convertible debt

 

(213

)

(295,398

)

Repurchase of common stock

 

(162,369

)

(125,653

)

Payments to purchase subsidiary shares from noncontrolling interests

 

(12,986

)

 

Proceeds from the sale of subsidiary shares to noncontrolling interests

 

 

4,311

 

Proceeds from exercise of stock options

 

3,991

 

24,623

 

Excess tax benefit on stock-based compensation

 

14,996

 

4,975

 

Net cash (used in) provided by financing activities

 

(156,581

)

174,524

 

Effect of exchange rate changes on cash and cash equivalents

 

(3,038

)

8,168

 

Net increase in cash and cash equivalents

 

62,199

 

330,980

 

Cash and cash equivalents, beginning of period

 

358,967

 

202,141

 

Cash and cash equivalents, end of period

 

$

421,166

 

$

533,121

 

SUPPLEMENTAL CASH FLOW INFORMATION:

 

 

 

 

 

Cash paid during the period for income taxes

 

$

99,376

 

$

61,568

 

Cash paid during the period for interest

 

$

7,443

 

$

4,639

 

Non-cash fair value increase for redeemable noncontrolling interests

 

$

41,327

 

$

4,118

 

 

See Notes to Unaudited Consolidated Financial Statements.

 

5



Table of Contents

 

priceline.com Incorporated

Notes to Unaudited Consolidated Financial Statements

 

1.                                       BASIS OF PRESENTATION

 

Priceline.com Incorporated (“priceline.com” or the “Company”) is responsible for the Unaudited Consolidated Financial Statements included in this document.  The Unaudited Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) and include all normal and recurring adjustments that management of the Company considers necessary for a fair presentation of its financial position and operating results.  The Company prepared the Unaudited Consolidated Financial Statements following the requirements of the Securities and Exchange Commission for interim reporting.  As permitted under those rules, the Company condensed or omitted certain footnotes or other financial information that are normally required by GAAP for annual financial statements.  These statements should be read in combination with the Consolidated Financial Statements in the Company’s Annual Report on Form 10-K for the year ended December 31, 2010.

 

The Unaudited Consolidated Financial Statements include the accounts of the Company and its wholly-owned subsidiaries and its majority-owned interest in TravelJigsaw Holdings Limited since its acquisition in May 2010.  All intercompany accounts and transactions have been eliminated in consolidation.  The functional currency of the Company’s foreign subsidiaries is generally the respective local currency.  Assets and liabilities are translated into U.S. Dollars at the rate of exchange existing at the balance sheet date.  Income statement amounts are translated at the average exchange rates for the period.  Translation gains and losses are included as a component of “Accumulated other comprehensive loss” in the accompanying Unaudited Consolidated Balance Sheets.  Foreign currency transaction gains and losses are included in the Unaudited Consolidated Statements of Operations in “Foreign currency transactions and other.”

 

Revenues, expenses, assets and liabilities can vary during each quarter of the year.  Therefore, the results and trends in these interim financial statements may not be the same as those for the full year.

 

Recent Accounting Pronouncements

 

In May 2010, the Financial Accounting Standards Board (“FASB”) issued amended guidance on fair value to largely achieve common fair value measurement and disclosure requirements between U.S. GAAP and International Financial Reporting Standards (“IFRS”).  The new accounting guidance does not extend the use of fair value but rather provides guidance about how fair value should be determined.  For U.S. GAAP, most of the changes are clarifications of existing guidance or wording changes to align with IFRS.  Amendments that clarify the Board’s intent under existing requirements include: (a) use of the highest and best use and valuation premise concept should be limited to nonfinancial assets; (b) disclosure should include quantitative information about the unobservable inputs used in a fair value measurement that is categorized within Level 3 of the fair value hierarchy; and (c) the fair value of an instrument classified in an entity’s equity should be valued from the perspective of a market participant that holds that instrument as an asset.  The amended guidance changes requirements as follows: (a) disclosures are expanded, particularly those relating to fair value measurements based on unobservable inputs, (b) fair value measurements for financial assets and liabilities based on a net position are permitted if market or credit risks are managed on a net basis and other criteria are met, and (c) premiums and discounts are allowed only if a market participant would also include them in the fair value measurement.  This accounting update is effective for public companies for interim or annual periods beginning after December 15, 2011, with early adoption permitted.  The Company does not expect the adoption of this new accounting guidance will impact its accounting policies and practices or disclosures.

 

In June 2010, the FASB issued amended accounting guidance on the presentation of other comprehensive income in financial statements by requiring comprehensive income to be reported in either a single statement or in two consecutive statements reporting net income and other comprehensive income.  The accounting guidance did not change the items that constitute net income or other comprehensive income, the timing of when other comprehensive income is reclassified to net income, or the earnings per share computation.  The accounting update requires retrospective application.  Public entities will be required to adopt the guidance for fiscal years, and interim

 

6



Table of Contents

 

periods within those years, beginning after December 15, 2011, with early adoption permitted.  The Company will comply with the change in presentation of other comprehensive income in the financial statements beginning in the first quarter of 2012.

 

In September 2011, the FASB issued an accounting update, which amends the guidance on testing goodwill for impairment.  Under the revised guidance, entities testing goodwill for impairment have the option of performing a qualitative assessment before calculating the fair value of the reporting unit.  If, based on the qualitative factors, it is more-likely-than not that the fair value of the reporting unit is less than its carrying value, then the unchanged two-step approach previously used would be required.  The new accounting guidance does not change how goodwill is calculated, how goodwill is assigned to the reporting unit, or the requirements for testing goodwill annually or when events and circumstances warrant testing.  The accounting update is effective for annual and interim periods beginning after December 15, 2011.  Early adoption of the update is permitted.  During the three months ended September 30, 2011, the Company performed its annual quantitative goodwill impairment testing, and concluded that the estimated fair value for each reporting unit substantially exceeds its respective carrying value.  This new accounting guidance will not have a significant impact on the Company.

 

2.                                       SUBSEQUENT EVENT

 

In October 2011, the Company entered into a $1 billion five-year unsecured revolving credit facility with a group of lenders. Borrowings under the revolving credit facility will bear interest, at the Company’s option, at a rate per annum equal to either (i) the adjusted LIBOR for the interest period in effect for such borrowing plus an applicable margin ranging from 1.00% to 1.50%; or (ii) the greatest of (a) JPMorgan Chase Bank, National Association’s prime lending rate, (b) the federal funds rate plus ½ of 1%, and (c) an adjusted LIBOR for an interest period of one month plus 1.00%, plus an applicable margin ranging from 0.00% to 0.50%.  Undrawn balances available under the revolving credit facility are subject to commitment fees at the applicable rate ranging from 0.10% to 0.25%.

 

The revolving credit facility provides for the issuance of up to $100.0 million of letters of credit as well as borrowings of up to $50 million on same-day notice, referred to as swingline loans.  Borrowings under the revolving credit facility may be made in U.S. dollars, Euros, Pounds Sterling and any other foreign currency agreed to by the lenders.  The proceeds of loans made under the facility will be used for working capital and general corporate purposes. As of November 7, 2011, there were no borrowings under the facility, and approximately $1.8 million of letters of credit were issued under the facility.

 

Upon entering into this new revolving credit facility, the Company terminated its $175.0 million revolving credit facility entered into in 2007 (see Note 9).

 

3.                                       STOCK-BASED EMPLOYEE COMPENSATION

 

The Company has adopted stock compensation plans which provide for grants of share based compensation as incentives and rewards to encourage employees, officers, and directors to contribute towards the long-term success of the Company.  Stock-based compensation cost included in personnel expenses in the Unaudited Consolidated Statements of Operations was approximately $13.3 million and $21.2 million, and $40.4 million and $48.6 million for the three and nine months ended September 30, 2011 and 2010, respectively.

 

During the nine months ended September 30, 2011, stock options were exercised for 145,015 shares of common stock with a weighted average exercise price per share of $27.52.  As of September 30, 2011, the aggregate number of stock options outstanding and exercisable was 210,453 shares, with a weighted average exercise price per share of $20.88 and a weighted average remaining term of 2.5 years.

 

7



Table of Contents

 

The following table summarizes the activity of unvested restricted stock, restricted stock units and performance share units (“Share-Based Awards”) during the nine months ended September 30, 2011.

 

Share-Based Awards

 

Shares

 

Weighted Average
Grant Date Fair Value

 

Unvested at December 31, 2010

 

1,530,647

 

$

130.93

 

Granted

 

117,790

 

$

465.07

 

Vested

 

(853,480

)

$

113.36

 

Performance Share Units Adjustment

 

(13,411

)

$

125.56

 

Forfeited

 

(70,179

)

$

176.95

 

Unvested at September 30, 2011

 

711,367

 

$

202.90

 

 

As of September 30, 2011, there was $74.9 million of total future compensation cost related to unvested share-based awards to be recognized over a weighted-average period of 1.9 years.

 

During the three months ended September 30, 2011, the Company made broad-based grants of 607 restricted stock units (“RSUs”) that generally vest over four years.  The share-based awards granted had a total grant date fair value of $0.3 million based upon the grant date fair value per share of $500.16.

 

During the three months ended June 30, 2011, the Company made broad-based grants of 191 RSUs that generally vest over four years.  The share-based awards granted had a total grant date fair value of $0.1 million based upon the grant date fair value per share of $523.96.

 

During the three months ended March 31, 2011, the Company made broad-based grants of 39,848 RSUs that generally vest after three years.  The share based awards granted had a total grant date fair value of $18.5 million based upon the grant date fair value per share of $464.79.

 

In addition, during the three months ended March 31, 2011, the Company granted 77,144 performance share units to certain executives.  The performance share units had a total grant date fair value of $35.9 million based upon the grant date fair value per share of $464.79.  The performance share units are payable in shares of the Company’s common stock upon vesting.  Subject to certain exceptions for terminations related to a change in control and terminations other than for “cause,” for “good reason” or on account of death or disability, the executive officers must continue their service through March 1, 2014 in order to receive any shares.  Stock-based compensation for performance share units is recorded based on the estimated probable outcome at the end of the performance period.  The actual number of shares to be issued on the vesting date will be determined upon completion of the performance period which ends December 31, 2013.  As of September 30, 2011, the estimated number of probable shares to be issued under this 2011 grant is a total of 77,144 shares.  If the maximum performance thresholds are met at the end of the performance period, a maximum number of 164,508 total shares could be issued.  If the minimum performance thresholds are not met, 22,796 shares would be issued at the end of the performance period.

 

2010 Performance Shares Units

 

During the year ended December 31, 2010, the Company granted 110,430 performance shares units with a grant date fair value of $26.0 million, based on a weighted average grant date fair value per share of $235.34.  The actual number of shares will be determined upon completion of the performance period which ends December 31, 2012.

 

At September 30, 2011, there were 93,745 unvested performance share units outstanding, net of actual forfeitures and vesting.  As of September 30, 2011, the number of shares estimated to be issued at the end of the performance period is a total of 216,793 shares.  If the maximum performance thresholds are met at the end of the performance period, a maximum of 226,505 total shares could be issued.

 

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4.                                       NET INCOME PER SHARE

 

The Company computes basic net income per share by dividing net income by the weighted average number of common shares outstanding during the period.  Diluted net income per share is based upon the weighted average number of common and common equivalent shares outstanding during the period.

 

Common equivalent shares related to stock options, restricted stock, restricted stock units, and performance share units are calculated using the treasury stock method.  Performance share units are included in the weighted average common equivalent shares based on the number of shares that would be issued if the end of the reporting period were the end of the performance period and if the result would be dilutive.

 

The Company’s convertible debt issues have net share settlement features requiring the Company upon conversion to settle the principal amount of the debt for cash and the conversion premium for cash or shares of the Company’s common stock, at the Company’s option.  The convertible notes are included in the calculation of diluted net income per share if their inclusion is dilutive under the treasury stock method.

 

A reconciliation of the weighted average number of shares outstanding used in calculating diluted earnings per share is as follows (in thousands):

 

 

 

For the Three Months
 Ended September 30,

 

For the Nine Months
 Ended September 30,

 

 

 

2011

 

2010

 

2011

 

2010

 

 

 

 

 

 

 

 

 

 

 

Weighted average number of basic common shares outstanding

 

49,779

 

48,570

 

49,607

 

47,565

 

Weighted average dilutive stock options, restricted stock, restricted stock units and performance share units

 

622

 

1,402

 

854

 

1,524

 

Assumed conversion of convertible debt

 

783

 

587

 

732

 

1,828

 

Weighted average number of diluted common and common equivalent shares outstanding

 

51,184

 

50,559

 

51,193

 

50,917

 

Anti-dilutive potential common shares

 

1,558

 

2,629

 

1,441

 

2,582

 

 

Anti-dilutive potential common shares for the three and nine months ended September 30, 2011 includes approximately 1.1 million shares and 1.2 million shares, respectively, which could be issued under the Company’s convertible debt if the Company experiences substantial increases in its common stock price.  Under the treasury stock method, the convertible debt will generally have a dilutive impact on net income per share if the Company’s average stock price for the period exceeds the conversion price for the convertible debt.

 

The Company has Conversion Spread Hedges outstanding at September 30, 2011, which were designed to reduce potential dilution upon conversion of the Company’s 0.75% Convertible Senior Notes due 2013 (the “2013 Notes”) at their stated maturity date (see Note 9).  Since the beneficial impact of the Conversion Spread Hedges was anti-dilutive, it was excluded from the calculation of net income per share.

 

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5.                                       INVESTMENTS

 

The following table summarizes, by major security type, the Company’s short-term investments as of September 30, 2011 (in thousands):

 

 

 

Cost

 

Gross 
Unrealized 
Gains

 

Gross 
Unrealized

Losses

 

Fair
Value

 

Available for sale securities

 

 

 

 

 

 

 

 

 

Foreign government securities

 

$

  1,142,648

 

$

    817

 

$

   (386

)

$

   1,143,079

 

U.S. government securities

 

  757,002

 

357

 

(55

)

757,304

 

U.S. agency securities

 

52,538

 

9

 

(2

)

52,545

 

U.S. corporate notes

 

30,365

 

174

 

 

30,539

 

Total

 

$

  1,982,553

 

$

  1,357

 

$

(443

)

$

   1,983,467

 

 

As of September 30, 2011, foreign government securities included investments in debt securities issued by the governments of Germany, the Netherlands, France and the United Kingdom.  The U.S. corporate notes are guaranteed by the federal government.

 

The following table summarizes, by major security type, the Company’s short-term investments as of December 31, 2010 (in thousands):

 

 

 


Cost

 

Gross
Unrealized
Gains

 

Gross
Unrealized
Losses

 


Fair
Value

 

Available for sale securities

 

 

 

 

 

 

 

 

 

Foreign government securities

 

$

   682,841

 

$

  558

 

$

  (81

)

$

   683,318

 

U.S. government securities

 

469,116

 

158

 

(66

)

469,208

 

U.S. agency securities

 

109,920

 

15

 

(30

)

109,905

 

U.S. corporate notes

 

40,845

 

 

(25

)

40,820

 

Total

 

$

 1,302,722

 

$

  731

 

$

 (202

)

$

 1,303,251

 

 

There were no material realized gains or losses related to investments for the three or nine months ended September 30, 2011 or 2010.

 

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6.                                       FAIR VALUE MEASUREMENTS

 

Financial assets and liabilities carried at fair value as of September 30, 2011 are classified in the table below in the categories described below (in thousands):

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

ASSETS:

 

 

 

 

 

 

 

 

 

Short-term investments

 

 

 

 

 

 

 

 

 

Foreign government securities

 

$

 

$

1,143,079

 

$

 

$

1,143,079

 

U.S. government securities

 

 

757,304

 

 

757,304

 

U.S. agency securities

 

 

52,545

 

 

52,545

 

U.S. corporate notes

 

 

30,539

 

 

30,539

 

Foreign exchange derivatives

 

 

45,849

 

 

45,849

 

Total assets at fair value

 

$

 

$

2,029,316

 

$

 

$

2,029,316

 

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

LIABILITIES:

 

 

 

 

 

 

 

 

 

Foreign exchange derivatives

 

$

 

 

$

  1,669

 

$

 —

 

$

  1,669

 

Redeemable noncontrolling interests

 

 

 

76,615

 

76,615

 

Total liabilities at fair value

 

$

 

 

$

  1,669

 

$

 76,615

 

$

  78,284

 

 

Financial assets and liabilities carried at fair value as of December 31, 2010 were classified in the table below in the categories described below (in thousands):

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

ASSETS:

 

 

 

 

 

 

 

 

 

Short-term investments

 

 

 

 

 

 

 

 

 

Foreign government securities

 

$

 

 

$

 683,318

 

$

 —

 

$

  683,318

 

U.S. government securities

 

 

469,208

 

 

469,208

 

U.S. agency securities

 

 

109,905

 

 

109,905

 

U.S. corporate notes

 

 

40,820

 

 

40,820

 

Long-term investments

 

 

394

 

 

394

 

Foreign exchange derivatives

 

 

4,970

 

 

4,970

 

Total assets at fair value

 

$

 

 

$

  1,308,615

 

$

 —

 

$

  1,308,615

 

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

LIABILITIES:

 

 

 

 

 

 

 

 

 

Foreign exchange derivatives

 

$

 

 

$

  6,995

 

$

 —

 

$

  6,995

 

Redeemable noncontrolling interests

 

 

 

45,751

 

45,751

 

Total liabilities at fair value

 

$

 

 

$

  6,995

 

$

 45,751

 

$

  52,746

 

 

There are three levels of inputs to measure fair value.  The definition of each input is described below:

 

Level 1:                   Quoted prices in active markets that are accessible by the Company at the measurement date for identical assets and liabilities.

Level 2:                   Inputs that are observable, either directly or indirectly.  Such prices may be based upon quoted prices for identical or comparable securities in active markets or inputs not quoted on active markets, but corroborated by market data.

Level 3:                   Unobservable inputs are used when little or no market data is available.

 

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For the Company’s short-term investments, a market approach is used for recurring fair value measurements and the valuation techniques use inputs that are observable, or can be corroborated by observable data, in an active marketplace.  Investments in U.S. Treasury and foreign government securities are considered “Level 2” fair value measurements as of September 30, 2011 and December 31, 2010 because the Company has access to quoted prices, but does not have visibility to the volume and frequency of trading for all of these investments.  Fair values for U.S. agency securities and U.S. corporate notes, which are guaranteed by the federal government, are considered “Level 2” fair value measurements because they are obtained from pricing sources for these or comparable instruments.

 

The Company’s derivative instruments are valued using pricing models.  Pricing models take into account the contract terms as well as multiple inputs where applicable, such as interest rate yield curves, option volatility and currency rates.

 

As of September 30, 2011 and December 31, 2010, the Company considers its redeemable noncontrolling interests to represent a “Level 3” fair value measurement that requires a high degree of judgment to determine fair value.  The Company estimated such fair value based upon standard valuation techniques using discounted cash flow analysis and industry peer comparable analysis.  See Note 12 for further information on redeemable noncontrolling interests.

 

As of September 30, 2011 and December 31, 2010, the carrying value of the Company’s cash and cash equivalents approximated their fair value and consisted primarily of foreign government securities, U.S. Treasury money market funds and bank deposits.  Other financial assets and liabilities, including restricted cash, accounts receivable, accrued expenses and deferred merchant bookings are carried at cost which approximates their fair value because of the short-term nature of these items.  See Note 5 for information on the carrying value of investments and Note 9 for the estimated fair value of the Company’s convertible debt.

 

In the normal course of business, the Company is exposed to the impact of foreign currency fluctuations.  The Company limits these risks by following established risk management policies and procedures, including the use of derivatives.  The Company’s derivative instruments are typically short-term in nature.  The Company does not use derivatives for trading or speculative purposes.  All derivative instruments are recognized in the Unaudited Consolidated Balance Sheets at fair value.  Gains and losses resulting from changes in the fair value of derivative instruments which are not designated as hedging instruments for accounting purposes are recognized in the Unaudited Consolidated Statements of Operations in the period that the changes occur.  Changes in the fair value of derivatives designated as net investment hedges are recorded as currency translation adjustments to offset a portion of the translation adjustment of the foreign subsidiary’s net assets and are recognized in the Unaudited Consolidated Balance Sheets in “Accumulated other comprehensive loss.”

 

Derivatives Not Designated as Hedging Instruments — The Company is exposed to adverse movements in currency exchange rates as the financial results of its international operations are translated from local currency into U.S. Dollars upon consolidation.  The Company’s derivative contracts principally address foreign exchange fluctuations for the Euro and British Pound Sterling.  As of September 30, 2011, there were no outstanding derivative contracts.  As of December 31, 2010, these derivatives resulted in a liability of $0.2 million and were recorded in “Accrued expenses and other current liabilities” on the Unaudited Consolidated Balance Sheet.  Foreign exchange gains of $3.9 million and $1.9 million for the three and nine months ended September 30, 2011, respectively, and foreign exchange losses of $6.1 million and foreign exchange gains of $2.1 million for the three and nine months ended September 30, 2010, respectively, were recorded in “Foreign currency transactions and other” in the Unaudited Consolidated Statements of Operations.

 

Derivatives associated with foreign currency transaction risks as of September 30, 2011 resulted in an asset of $0.4 million, which was recorded in “Prepaid and other current assets”, and a liability of $1.7 million, which is recorded in “Accrued expenses and other current liabilities” in the Unaudited Consolidated Balance Sheet.  Derivatives associated with foreign currency transaction risks as of December 31, 2010 resulted in an asset of $1.0 million and was recorded in “Prepaid expenses and other current assets” in the Unaudited Consolidated Balance Sheet.  Foreign exchange losses of $0.9 million and $1.0 million for the three and nine months ended September 30, 2011, respectively, and foreign exchange losses of $0.1 million and foreign exchange gains of $0.3 million for the

 

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three and nine months ended September 30, 2010, respectively, were recorded in “Foreign currency transactions and other” in the Unaudited Consolidated Statements of Operations.

 

The settlement of derivative contracts resulted in a net cash outflow of $2.8 million for the nine months ended September 30, 2011 compared to net cash received of $5.7 million for the nine months ended September 30, 2010 and are reported within “Net cash provided by operating activities” on the Unaudited Consolidated Statements of Cash Flows.

 

Derivatives Designated as Hedging Instruments — As of September 30, 2011 and December 31, 2010, the Company had outstanding foreign currency forward contracts for 605 million Euros and 378 million Euros, respectively, to hedge a portion of its net investment in a foreign subsidiary.  These contracts are all short-term in nature.  Hedge ineffectiveness is assessed and measured based on changes in forward exchange rates.  The fair value of these derivatives at September 30, 2011 was an asset of $45.5 million and is recorded in “Prepaid expenses and other current assets” in the Unaudited Consolidated Balance Sheet.  At December 31, 2010, the net liability of $2.8 million was recorded as a liability of $6.8 million in “Accrued expenses and other current liabilities” and as an asset of $4.0 million in “Prepaid expenses and other current assets” in the Unaudited Consolidated Balance Sheet.  A net cash outflow of $36.8 million for the nine months ended September 30, 2011, compared to net cash received of $40.3 million for the nine months ended September 30, 2010, was reported within “Net cash used in investing activities” on the Unaudited Consolidated Statements of Cash Flows.

 

7.                                       INTANGIBLE ASSETS AND GOODWILL

 

The Company’s intangible assets consist of the following (in thousands):

 

 

 

September 30, 2011

 

December 31, 2010

 

 

 

 

 

 

 

Gross 
Carrying 
Amount

 

Accumulated
Amortization

 

Net 
Carrying 
Amount

 

Gross 
Carrying 
Amount

 

Accumulated
Amortization

 

Net 
Carrying 
Amount

 

Amortization
Period

 

Weighted 
Average 
Useful Life

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Supply and distribution agreements

 

$

 264,252

 

$

 (93,239

)

$

 171,013

 

$

 264,491

 

$

  (76,823

)

$

 187,668

 

10 - 13 years

 

12 years

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Technology

 

23,546

 

(23,222

)

324

 

23,549

 

(22,119

)

1,430

 

3 years

 

3 years

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Patents

 

1,638

 

(1,387

)

251

 

1,638

 

(1,352

)

286

 

15 years

 

15 years

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Customer lists

 

20,327

 

(19,040

)

1,287

 

20,338

 

(17,512

)

2,826

 

2 years

 

2 years

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Internet domain names

 

5,080

 

(465

)

4,615

 

1,853

 

(126

)

1,727

 

2 – 20 years

 

10 years

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Trade names

 

52,994

 

(19,816

)

33,178

 

53,099

 

(15,064

)

38,035

 

5 – 20 years

 

11 years

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other

 

345

 

(320

)

25

 

344

 

(286

)

58

 

3  – 10 years

 

4 years

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total intangible assets

 

$

368,182

 

$

 (157,489

)

$

 210,693

 

$

 365,312

 

$

 (133,282

)

$

 232,030

 

 

 

 

 

 

Intangible assets with determinable lives are primarily amortized on a straight-line basis.  Intangible asset amortization expense was approximately $8.4 million and $10.6 million for the three months ended September 30, 2011 and 2010, respectively, and approximately $25.3 million and $24.2 million for the nine months ended September 30, 2011 and 2010, respectively.

 

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The estimated amortization expense for intangible assets for the remainder of 2011, the annual expense for the next five years, and the expense thereafter is expected to be as follows (in thousands):

 

2011

 

$

    7,826

 

2012

 

29,952

 

2013

 

28,680

 

2014

 

28,606

 

2015

 

25,900

 

2016

 

23,317

 

Thereafter

 

66,412

 

 

 

$

 210,693

 

 

The change in goodwill for the nine months ended September 30, 2011 consists of the following (in thousands):

 

Balance at December 31, 2010

 

$

510,894

 

Currency translation adjustments

 

(740

)

Balance at September 30, 2011

 

$

510,154

 

 

A substantial majority of the Company’s goodwill relates to the acquisition of Booking.com.  In addition, the acquisition of TravelJigsaw Holdings Limited in May 2010 increased goodwill by $105.3 million (refer to Note 12).  During the three months ended September 30, 2011, the Company performed its annual goodwill impairment testing and concluded that the estimated fair value for Booking.com, as well as the Company’s other reporting units, substantially exceeds their respective carrying values.

 

8.                                       OTHER ASSETS

 

Other assets at September 30, 2011 and December 31, 2010 consist of the following (in thousands):

 

 

 

September 30,
2011

 

December 31,
2010

 

Deferred debt issuance costs

 

$

7,900

 

$

9,576

 

Other

 

13,544

 

4,842

 

Total

 

$

21,444

 

$

14,418

 

 

Deferred debt issuance costs arose from (i) the Company’s issuance, in March 2010, of $575.0 million aggregate principal amount of 1.25% Convertible Senior Notes due 2015 (the “2015 Notes”); (ii) a $175.0 million revolving credit facility entered into in September 2007; and (iii) the Company’s issuance, in September 2006, of $172.5 million aggregate principal amount of 2013 Notes.  Deferred debt issuance costs are being amortized using the effective interest rate method over the term of approximately five years, except for the 2013 Notes which were amortized over their term of seven years.  The period of amortization for the Company’s debt issue costs was determined at inception of the related debt agreements based upon the stated maturity date.  Unamortized debt issuance costs written off to interest expense in the three and nine months ended September 30, 2010 resulting from conversions of convertible debt amounted to $0.3 million and $1.3 million, respectively.  Unamortized debt issuance costs written off in the nine months ended September 30, 2011 for debt conversions were insignificant.

 

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9.                                       DEBT

 

Revolving Credit Facility

 

In September 2007, the Company entered into a $175.0 million five-year committed revolving credit facility with a group of lenders, which is secured, subject to certain exceptions, by a first-priority security interest on substantially all of the Company’s assets and related intangible assets located in the United States.  In addition, the Company’s obligations under the revolving credit facility are guaranteed by substantially all of the assets and related intangible assets of the Company’s material direct and indirect domestic and foreign subsidiaries.  Borrowings under the revolving credit facility will bear interest, at the Company’s option, at a rate per annum equal to the greater of (a) JPMorgan Chase Bank, National Association’s prime lending rate and (b) the federal funds rate plus ½ of 1%, plus an applicable margin ranging from 0.25% to 0.75%; or at an adjusted LIBOR for the interest period in effect for such borrowing plus an applicable margin ranging from 1.25% to 1.75%.  Undrawn balances available under the revolving credit facility are subject to commitment fees at the applicable rate ranging from 0.25% to 0.375%.

 

The revolving credit facility provides for the issuance of up to $50.0 million of letters of credit as well as borrowings on same-day notice, referred to as swingline loans, which are available in U.S. Dollars, Euros, Pound Sterling and any other foreign currency agreed to by the lenders. The proceeds of loans made under the facility will be used for working capital and general corporate purposes.  At both September 30, 2011 and December 31, 2010, there were no borrowings outstanding under the facility, and approximately $1.8 million and $1.6 million, respectively, of letters of credit were issued under the revolving credit facility.

 

In October 2011, the Company entered into a $1 billion five-year unsecured revolving credit facility with a group of lenders.  Upon entering into this new revolving credit facility, the Company terminated its $175.0 million revolving credit facility (see Note 2).

 

Convertible Debt

 

Convertible debt as of September 30, 2011 consists of the following (in thousands):

 

September 30, 2011 

 

Outstanding
Principal 
Amount

 

Unamortized
Debt
Discount

 

Carrying
Value

 

1.25% Convertible Senior Notes due March 2015

 

$

575,000

 

$

(82,831

)

$

492,169

 

 

Convertible debt as of December 31, 2010 consisted of the following (in thousands):

 

December 31, 2010 

 

Outstanding
Principal 
Amount

 

Unamortized
Debt
Discount

 

Carrying
Value

 

1.25% Convertible Senior Notes dues March 2015

 

$

575,000

 

$

(98,770

)

$

476,230

 

0.75% Convertible Senior Notes due September 2013

 

213

 

(38

)

175

 

Outstanding convertible debt

 

$

575,213

 

$

(98,808

)

$

476,405

 

 

Based upon the closing price of the Company’s common stock for the prescribed measurement period during the three months ended December 31, 2010, the contingent conversion thresholds on the 2013 Notes were exceeded.  As a result, the 2013 Notes were convertible at the option of the holders as of December 31, 2010, and accordingly were classified as a current liability as of that date.  The remaining outstanding principal amount of the 2013 Notes was converted during the three months ended June 30, 2011.

 

The contingent conversion threshold for the prescribed measurement period during the three months ended September 30, 2011 was exceeded for the 2015 Notes.  Therefore, the 2015 Notes are convertible at the option of the holders.  Accordingly, the Company reported the carrying value of the 2015 Notes as a current liability as of September 30, 2011.  Since these notes are convertible at the option of the holders and the principal amount is required to be paid in cash, the difference between the principal amount and carrying value is reflected as convertible debt in the mezzanine section on the Company’s Unaudited Consolidated Balance Sheet.  Therefore, with respect to the 2015 Notes, the Company reclassified $82.8 million from additional paid-in-capital to convertible

 

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debt in the mezzanine section on the Company’s Unaudited Consolidated Balance Sheet as of September 30, 2011.  The determination of whether or not the 2015 Notes are convertible must continue to be performed on a quarterly basis.  Consequently, the 2015 Notes may not be convertible in future quarters, and therefore may again be classified as long-term debt, if the contingent conversion threshold is not met in such quarters.

 

In the nine months ended September 30, 2011, the Company delivered cash of $0.2 million to repay the principal amount and issued 4,869 shares of its common stock in satisfaction of the conversion value in excess of the principal amount for convertible debt that was converted prior to maturity.  In the nine months ended September 30, 2010, the Company delivered cash of $195.6 million to repay the principal amount and issued 3,457,785 shares of its common stock and delivered cash of $99.8 million in satisfaction of the conversion value in excess of the principal amount for convertible debt that was converted prior to maturity.

 

As of September 30, 2011 and December 31, 2010, the estimated market value of the outstanding convertible debt was approximately $0.9 billion for both periods.  Fair value was estimated based upon actual trades at the end of the reporting period or the most recent trade available as well as the Company’s stock price at the end of the reporting period.  A substantial portion of the market value of the Company’s debt in excess of the outstanding principal amount relates to the conversion premium on the bonds.

 

Description of Senior Notes

 

In March 2010, the Company issued in a private placement $575.0 million aggregate principal amount of Convertible Senior Notes due March 15, 2015, with an interest rate of 1.25% (the “2015 Notes”).  The Company paid $12.9 million in debt issuance costs during the three months ended March 31, 2010, related to this offering.  The 2015 Notes are convertible, subject to certain conditions, into the Company’s common stock at a conversion price of approximately $303.06 per share.  The 2015 Notes are convertible, at the option of the holder, prior to March 15, 2015 upon the occurrence of specified events, including, but not limited to a change in control, or if the closing sales price of the Company’s common stock for at least 20 consecutive trading days in the period of the 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is more than 150% of the applicable conversion price in effect for the notes on the last trading day of the immediately preceding quarter. In the event that all or substantially all of the Company’s common stock is acquired on or prior to the maturity of the 2015 Notes in a transaction in which the consideration paid to holders of the Company’s common stock consists of all or substantially all cash, the Company would be required to make additional payments in the form of additional shares of common stock to the holders of the 2015 Notes in aggregate value ranging from $0 to approximately $132.7 million depending upon the date of the transaction and the then current stock price of the Company.  As of December 15, 2014, holders will have the right to convert all or any portion of the 2015 Notes.  The 2015 Notes may not be redeemed by the Company prior to maturity.  The holders may require the Company to repurchase the 2015 Notes for cash in certain circumstances.  Interest on the 2015 Notes is payable on March 15 and September 15 of each year.

 

In 2006, the Company issued in a private placement $172.5 million aggregate principal amount of Convertible Senior Notes due September 30, 2013, with an interest rate of 0.75% (the “2013 Notes”).  The 2013 Notes were convertible, subject to certain conditions, into the Company’s common stock at a conversion price of approximately $40.38 per share.  The 2013 Notes were not redeemable by the Company prior to maturity.

 

In 2006, the Company entered into hedge transactions relating to the potential dilution of the Company’s common stock upon conversion of the 2013 Notes (the “Conversion Spread Hedges”).  Under the Conversion Spread Hedges, the Company is entitled to purchase from Goldman Sachs and Merrill Lynch approximately 4.3 million shares of the Company’s common stock (the number of shares underlying the 2013 Notes) at a strike price of $40.38 per share (subject to adjustment in certain circumstances) in 2013, and the counterparties are entitled to purchase from the Company approximately 4.3 million shares of the Company’s common stock at a strike price of $50.47 per share (subject to adjustment in certain circumstances) in 2013.  The Conversion Spread Hedges are separate transactions entered into by the Company with the counterparties and are not part of the terms of the 2013 Notes.  The Conversion Spread Hedges did not immediately hedge against the associated dilution from early conversions of the 2013 Notes prior to their stated maturities.  Therefore, upon early conversion of the 2013 Notes, the Company has delivered any related conversion premium in shares of stock or a combination of cash and shares. 

 

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However, the hedging counterparties were not obligated to deliver the Company shares or cash that would offset the dilution associated with the early conversion activity.  Because of this timing difference, the number of shares, if any, that the Company receives from its Conversion Spread Hedges can differ materially from the number of shares that it was required to deliver to the holders of the 2013 Notes upon their early conversion.  The actual number of shares to be received will depend upon the Company’s stock price on the date the Conversion Spread Hedges are exercisable, which coincides with the scheduled maturity of the 2013 Notes.

 

Accounting guidance requires that cash-settled convertible debt, such as the Company’s convertible senior notes, be separated into debt and equity components at issuance and a value to be assigned to each.  The value assigned to the debt component is the estimated fair value, as of the issuance date, of a similar bond without the conversion feature.  The difference between the bond cash proceeds and this estimated fair value, representing the value assigned to the equity component, is recorded as a debt discount.  Debt discount is amortized using the effective interest method over the period from origination date through the stated maturity date.  The Company estimated the straight debt borrowing rates at debt origination to be 5.89% for the 2015 Notes and 8.0% for the 2013 Notes.  The yield to maturity was estimated at an at-market coupon priced at par.

 

For the three months ended September 30, 2011 and 2010, the Company recognized interest expense of $7.7 million for both periods related to convertible notes.  Interest expense was comprised of $1.8 million and $1.7 million, respectively, for the contractual coupon interest, $5.4 million and $5.5 million, respectively, related to the amortization of debt discount and $0.5 million for both periods related to the amortization of debt issuance costs.  In addition, unamortized debt issuance costs written off to interest expense related to debt converted prior to maturity in 2010 amounted to approximately $0.3 million.  There were no debt conversions for the three months ended September 30, 2011.  The effective interest rate for the three months ended September 30, 2011 and 2010 was 6.3% and 6.5%, respectively.

 

For the nine months ended September 30, 2011 and 2010, the Company recognized interest expense of $22.8 million and $20.2 million, respectively, related to convertible notes.  Interest expense was comprised of $5.4 million and $4.0 million, respectively, for the contractual coupon interest, $15.9 million and $15.0 million, respectively, related to the amortization of debt discount and $1.5 million and $1.2 million, respectively, related to the amortization of debt issuance costs.  In addition, unamortized debt issuance costs written off to interest expense related to debt converted prior to maturity in 2010 amounted to approximately $1.3 million, while costs associated with 2011 debt conversions were insignificant.  The effective interest rate for the nine months ended September 30, 2011 and 2010 was 6.3% and 6.9%, respectively.

 

In addition, if the Company’s convertible debt is redeemed or converted prior to maturity, a gain or loss on extinguishment will be recognized.  The gain or loss is the difference between the fair value of the debt component immediately prior to extinguishment and its carrying value.  To estimate the fair value at each conversion date, the Company used an applicable LIBOR rate plus an applicable credit default spread based upon the Company’s credit rating at the respective conversion dates.  In the three and nine months ended September 30, 2010, the Company recognized losses of $3.2 million ($1.9 million after tax) and $11.3 million ($6.8 million after tax), respectively, in “Foreign currency transactions and other” in the Unaudited Consolidated Statement of Operations.  The losses recognized for the nine months ended September 30, 2011 for debt conversions were insignificant.

 

10.                                TREASURY STOCK

 

As of September 30, 2011, the Company has a remaining amount from all authorizations granted by the Board of Directors of $459.2 million to purchase its common stock.  The Company may make additional repurchases of shares under its stock repurchase programs, depending on prevailing market conditions, alternate uses of capital and other factors.  Whether and when to initiate and/or complete any purchase of common stock and the amount of common stock purchased will be determined in the Company’s complete discretion.

 

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The Company’s Board of Directors has also given the Company the general authorization to repurchase shares of its common stock to satisfy employee withholding tax obligations related to stock-based compensation.  The Company repurchased 356,979 shares and 84,002 shares at aggregate costs of $162.4 million and $19.6 million in the nine months ended September 30, 2011 and 2010, respectively, to satisfy employee withholding taxes related to stock-based compensation.

 

As of September 30, 2011, there were approximately 7.8 million shares of the Company’s common stock held in treasury.

 

In the first quarter of 2010, the Company’s Board of Directors authorized the repurchase of up to $500 million of the Company’s common stock, including the approval to purchase up to $100 million using proceeds from the issuance of the 2015 Notes.  The Company repurchased 0.4 million shares of its common stock at an aggregate cost of approximately $100 million in the three months that ended March 31, 2010.  During the three months ended June 30, 2010, the Company repurchased 32,487 shares of its common stock at an aggregate cost of approximately $6.1 million.

 

11.                                INCOME TAXES

 

Income tax expense includes U.S. and international income taxes, determined using an estimate of the Company’s annual effective tax rate.  A deferred tax liability is recognized for all taxable temporary differences, and a deferred tax asset is recognized for all deductible temporary differences and operating loss and tax credit carryforwards.  A valuation allowance is recognized if it is more likely than not that some portion of the deferred tax asset will not be realized.

 

The Company recognizes income tax expense related to income generated outside of the United States based upon the applicable tax rates and tax laws of the foreign countries in which the income is generated.  During the three and nine months ended September 30, 2011 and 2010, the substantial majority of the Company’s foreign-sourced income has been generated in the Netherlands and the United Kingdom.  Income tax expense for the three and nine months ended September 30, 2011 and 2010 differs from the expected tax expense at the U.S. statutory rate of 35%, primarily due to lower foreign tax rates, partially offset by state income taxes and certain non-deductible expenses.  In addition, following the conclusion of an audit, the Company reversed a reserve of approximately $12.5 million in the three months ended June 30, 2011 for unrecognized tax benefits attributable to tax positions taken in 2010.  The Company does not expect further significant changes in the amount of unrecognized tax benefits during the next twelve months.

 

Effective January 1, 2010, the Netherlands modified its corporate income tax law related to income generated from qualifying “innovative” activities (“Innovation Box Tax”).  Earnings that qualify for the Innovation Box Tax will effectively be taxed at the rate of 5% rather than the Dutch statutory rate of 25%.  Booking.com obtained a ruling from the Dutch tax authorities in February 2011 confirming that a portion of its earnings (“qualifying earnings”) is eligible for Innovation Box Tax treatment.   The ruling from the Dutch tax authorities is valid from January 1, 2010 through December 31, 2013 (the “Initial Period”).  In this ruling, the Dutch tax authorities require that the Innovation Box Tax benefit be phased in over a multi-year period.  The amount of qualifying earnings expressed as a percentage of the total pretax earnings in the Netherlands will vary depending upon the level of total pretax earnings that is achieved in any given year.

 

In order to be eligible for Innovation Box Tax treatment, Booking.com must, among other things, apply for and obtain a research and development (“R&D”) certificate from a Dutch governmental agency every six months confirming that the activities that Booking.com intends to be engaged in over the subsequent six month period are “innovative.”  Should Booking.com fail to secure such a certificate in any such period — for example, because the governmental agency does not view Booking.com’s new or anticipated activities as “innovative” — or should this agency determine that the activities contemplated to be performed in a prior year were not performed as contemplated or did not comply with the agency’s requirements, Booking.com may lose its certificate and, as a result, the Innovation Box Tax benefit may be reduced or eliminated.

 

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After the Initial Period, Booking.com intends to reapply for continued Innovation Box Tax treatment for future periods.  There can be no assurance that Booking.com’s application will be accepted, or that the amount of qualifying earnings or applicable tax rates will not be reduced at that time.  In addition, there can be no assurance that the tax law will not change in 2011 and/or future years resulting in a reduction or elimination of the tax benefit.

 

The Innovation Box Tax did not have a material impact on the Company’s 2010 results.  The Company currently expects the impact of the Innovation Box Tax to reduce its consolidated effective income tax rate for 2011 by approximately two to four percentage points.

 

The Company has significant deferred tax assets, resulting principally from domestic net operating loss carryforwards (“NOLs”).  At December 31, 2010, the Company had approximately $2.7 billion of NOLs for U.S. federal income tax purposes, comprised of $0.6 billion of NOLs generated from operating losses and approximately $2.1 billion of NOLs generated from equity-related transactions, including equity-based compensation and stock warrants, mainly expiring from December 31, 2019 to December 31, 2021.  The utilization of these NOLs is subject to limitation under Section 382 of the Internal Revenue Code and is also dependent on the Company’s ability to generate sufficient future taxable income.

 

Section 382 imposes limitations on the availability of a company’s net operating losses after a more than 50 percentage point ownership change occurs.  The Section 382 limitation is based upon certain conclusions pertaining to the dates of ownership changes and the value of the Company on the dates of the ownership changes.  As a result of a study, it was determined that ownership changes, as defined in Section 382, occurred in 2000 and 2002.  The amount of the Company’s net operating losses incurred prior to each ownership change is limited based on the value of the Company on the respective dates of ownership change.  As of the beginning of the year, it is estimated that the effect of Section 382 will generally limit the total cumulative amount of net operating loss available to offset future taxable income to approximately $1.3 billion, comprised of $0.6 billion of NOLs generated from operating losses which have been fully reflected in the Unaudited Consolidated Financial Statements and $0.7 billion of NOLs generated from equity-related transactions.  At December 31, 2010, the Company had additional federal tax benefits of $87.8 million, generated since January 1, 2006, related to equity transactions that are not recorded in our deferred tax asset accounts.  In accordance with accounting guidance, tax benefits related to equity transactions will be recognized as a credit to additional paid-in capital if and when they are realized by reducing the Company’s current income tax liability.  Pursuant to Section 382, future ownership changes, if any, could further limit this amount.

 

The Company periodically evaluates the likelihood of the realization of deferred tax assets, and reduces the carrying amount of these deferred tax assets by a valuation allowance to the extent it believes a portion will not be realized.  The Company considers many factors when assessing the likelihood of future realization of the deferred tax assets, including its recent cumulative earnings experience by taxing jurisdiction, expectations of future income, the carryforward periods available for tax reporting purposes, and other relevant factors.  The deferred tax asset at September 30, 2011 and December 31, 2010 amounted to $169.7 million and $222.0 million, net of the valuation allowance recorded, respectively.

 

The Company has recorded a non-current deferred tax liability in the amount of $47.4 million and $56.4 million at September 30, 2011 and December 31, 2010, respectively, primarily related to the assignment of estimated fair value to certain purchased identifiable intangible assets associated with various international acquisitions.

 

As an international corporation providing hotel reservation services available around the world, the Company is subject to income taxes as well as non-income based taxes, in both the United States and various foreign jurisdictions.  Significant judgment is required in determining the Company’s worldwide provision for income taxes and other tax liabilities.  Although the Company believes that its tax estimates are reasonable, there is no assurance that the final determination of tax audits or tax disputes will not be different from what is reflected in the Company’s historical income tax provisions and accruals.  To date, we have been audited in several taxing jurisdictions with no significant adjustments as a result.  The Internal Revenue Service initiated an audit of our federal income tax returns in the third quarter of 2011.

 

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12.                                REDEEMABLE NONCONTROLLING INTERESTS

 

On May 18, 2010, the Company, through its wholly-owned subsidiary, Priceline.com International Limited (“PIL”), paid $108.5 million, net of cash acquired, to purchase a controlling interest of the outstanding equity of TravelJigsaw Holdings Limited and its operating subsidiary, TravelJigsaw Limited (collectively, “TravelJigsaw”), a Manchester, UK-based international rental car reservation service.

 

Certain key members of TravelJigsaw’s management team retained a noncontrolling ownership interest in TravelJigsaw Holdings Limited.  In addition, certain key members of the management team of Booking.com purchased a 3% ownership interest in TravelJigsaw from PIL in June 2010 (together with TravelJigsaw management’s investment, the “Redeemable Shares”).  The holders of the Redeemable Shares have the right to put their shares to PIL and PIL will have the right to call the shares in each case at a purchase price reflecting the fair value of the Redeemable Shares at the time of exercise.  Subject to certain exceptions, one-third of the Redeemable Shares have been or will be, as the case may be, subject to the put and call options in each of 2011, 2012 and 2013, respectively, during specified option exercise periods.  In April 2011, in connection with the exercise of March 2011 call and put options, PIL purchased a portion of the shares underlying redeemable noncontrolling interests for an aggregate purchase price of approximately $13.0 million.  As a result of the April 2011 purchase, the redeemable noncontrolling interests in TravelJigsaw Holdings Limited were reduced from 24.4% to 19.0%.

 

Redeemable noncontrolling interests are measured at fair value, both at the date of acquisition and subsequently at each reporting period.  The redeemable noncontrolling interests are reported on the Company’s Unaudited Consolidated Balance Sheets in the mezzanine section in “Redeemable noncontrolling interests.”

 

A reconciliation of redeemable noncontrolling interests for the nine months ended September 30, 2011 is as follows (in thousands):

 

 

 

2011

 

Balance, December 31, 2010

 

$

45,751

 

Net income attributable to redeemable noncontrolling interests

 

2,520

 

Fair value adjustments(1)

 

41,327

 

Purchase of subsidiary shares at fair value(1)

 

(12,986

)

Currency translation adjustments

 

3

 

Balance, September 30, 2011

 

$

76,615

 

 


(1)           The estimated fair value was based upon standard valuation techniques using discounted cash flow analysis and industry peer comparable analysis.

 

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13.                                COMPREHENSIVE INCOME AND ACCUMULATED OTHER COMPREHENSIVE LOSS

 

The table below provides the detail of comprehensive income for the three and nine months ended September 30, 2011 and 2010 (in thousands):

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,  
2011

 

September 30,  
2010

 

September 30,  
2011

 

September 30,  
2010

 

Net income applicable to   common stockholders

 

$

469,499

 

$

222,980

 

$

830,655

 

$

391,812

 

Net unrealized gain (loss) on investment securities

 

665

 

(163

)

180

 

87

 

Currency translation gain (loss)

 

(79,978

)

75,788

 

(27,126

)

(16,135

)

Comprehensive income

 

$

390,186

 

$

298,605

 

$

803,709

 

$

375,764

 

 

The table below provides the balances for each classification of accumulated other comprehensive loss as of September 30, 2011 and December 31, 2010 (in thousands):

 

 

 

September 30,
2011

 

December 31,
2010

 

Foreign currency translation adjustments (1)

 

$

(60,533

)

$

(33,407

)

Net unrealized gain on investment securities (2)

 

698

 

518

 

Accumulated other comprehensive loss

 

$

(59,835

)

$

(32,889

)

 


(1)           Includes net gains from fair value adjustments at September 30, 2011 of $22,722 after tax ($38,631 before tax) and net gains from fair value adjustments at December 31, 2010 of $15,827 after tax ($27,138 before tax) associated with net investment hedges (see Note 6).  The remaining balance in currency translation adjustments excludes income taxes due to the Company’s practice and intention to reinvest the earnings of its foreign subsidiaries in those operations.

 

(2)           The unrealized gain before tax at September 30, 2011 and December 31, 2010 was $985 and $714, respectively.

 

14.                                COMMITMENTS AND CONTINGENCIES

 

Litigation Related to Hotel Occupancy and Other Taxes

 

The Company and certain third-party defendant online travel companies are currently involved in approximately fifty lawsuits, including certified and putative class actions, brought by or against states, cities and counties over issues involving the payment of hotel occupancy and other taxes (i.e., state and local sales tax) and the Company’s “merchant” hotel business.  The Company’s subsidiaries Lowestfare.com LLC and Travelweb LLC are named in some but not all of these cases.  Generally, each complaint alleges, among other things, that the defendants violated each jurisdiction’s respective hotel occupancy tax ordinance with respect to the charges and remittance of amounts to cover taxes under each law.  Each complaint typically seeks compensatory damages, disgorgement, penalties available by law, attorneys’ fees and other relief.  The Company is also involved in one consumer lawsuit relating to, among other things, the payment of hotel occupancy taxes and service fees.  In addition, approximately sixty municipalities or counties, and at least six states, have initiated audit proceedings (including proceedings initiated by more than forty municipalities in California), issued proposed tax assessments or started inquiries relating to the payment of hotel occupancy and other taxes (i.e., state and local sales tax).  Additional state and local jurisdictions are likely to assert that the Company is subject to, among other things, hotel occupancy and other taxes (i.e., state and local sales tax) and could seek to collect such taxes, retroactively and/or prospectively.

 

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With respect to the principal claims in these matters, the Company believes that the ordinances at issue do not apply to the service it provides, namely the facilitation of reservations, and, therefore, that it does not owe the taxes that are claimed to be owed.  Rather, the Company believes that the ordinances at issue generally impose hotel occupancy and other taxes on entities that own, operate or control hotels (or similar businesses) or furnish or provide hotel rooms or similar accommodations.  In addition, in many of these matters, municipalities have asserted claims for “conversion” — essentially, that the Company has collected a tax and wrongfully “pocketed” those tax dollars — a claim that the Company believes is without basis and has vigorously contested.  The municipalities that are currently involved in litigation and other proceedings with the Company, and that may be involved in future proceedings, have asserted contrary positions and will likely continue to do so.  From time to time, the Company has found it expedient to settle, and may in the future agree to settle, claims pending in these matters without conceding that the claims at issue are meritorious or that the claimed taxes are in fact due to be paid.

 

In connection with some of these tax audits and assessments, the Company may be required to pay any assessed taxes, which amounts may be substantial, prior to being allowed to contest the assessments and the applicability of the ordinances in judicial proceedings.  This requirement is commonly referred to as “pay to play” or “pay first.”  For example, the City of San Francisco assessed the Company approximately $3.4 million (an amount that includes interest and penalties) relating to hotel occupancy taxes, which the Company paid in July 2009.  Payment of these amounts, if any, is not an admission that the Company believes it is subject to such taxes and, even if such payments are made, the Company intends to continue to assert its position vigorously.  The Company has successfully argued against a “pay first” requirement asserted in another California proceeding.

 

Litigation is subject to uncertainty and there could be adverse developments in these pending or future cases and proceedings.  For example, in October 2009, a jury in a San Antonio class action found that the Company and the other online travel companies that are defendants in the lawsuit “control” hotels for purposes of the local hotel occupancy tax ordinances at issue and are, therefore, subject to the requirements of those ordinances.  On July 1, 2011, the court issued findings of fact and conclusions of law in connection with this case.  In addition to ruling that hotel tax was due from defendants on the markup and service fee, the court held defendants liable for penalties and interest per the terms of each city’s applicable ordinance, but capped at fifteen percent (15%) of the total amount of unpaid taxes at the time of entry of judgment; ordinances without a penalty provision are assessed a fifteen percent (15%) penalty under the Texas Tax Code.  The Company expects supplemental findings of fact and conclusions of law to be issued by the court, followed by a judgment.  The Company intends to vigorously pursue an appeal of the judgment on legal and factual grounds.

 

An unfavorable outcome or settlement of pending litigation may encourage the commencement of additional litigation, audit proceedings or other regulatory inquiries.  In addition, an unfavorable outcome or settlement of these actions or proceedings could result in substantial liabilities for past and/or future bookings, including, among other things, interest, penalties, punitive damages and/or attorney fees and costs.  There have been, and will continue to be, substantial ongoing costs, which may include “pay first” payments, associated with defending the Company’s position in pending and any future cases or proceedings.  An adverse outcome in one or more of these unresolved proceedings could have a material adverse effect on the Company’s business and results of operations and could be material to the Company’s earnings, financial position or cash flow in any given operating period.

 

To the extent that any tax authority succeeds in asserting that the Company has a tax collection responsibility, or the Company determines that it has such a responsibility, with respect to future transactions, the Company may collect any such additional tax obligation from its customers, which would have the effect of increasing the cost of hotel room reservations to its customers and, consequently, could make the Company’s hotel service less competitive (i.e., versus the websites of other online travel companies or hotel company websites) and reduce hotel reservation transactions; alternatively, the Company could choose to reduce the compensation for its services on “merchant” hotel transactions.  Either step could have a material adverse effect on the Company’s business and results of operations.

 

In many of the judicial and other proceedings initiated to date, municipalities seek not only historical taxes that are claimed to be owed on the Company’s gross profit, but also, among other things, interest, penalties, punitive damages and/or attorney fees and costs.  Therefore, any liability associated with hotel occupancy tax matters is not

 

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constrained to the Company’s liability for tax owed on its historical gross profit, but may also include, among other things, penalties, interest and attorneys’ fees.  To date, the majority of the taxing jurisdictions in which the Company facilitates hotel reservations have not asserted that taxes are due and payable on the Company’s U.S. “merchant” hotel business.  With respect to municipalities that have not initiated proceedings to date, it is possible that they will do so in the future or that they will seek to amend their tax statutes and seek to collect taxes from the Company only on a prospective basis.

 

Reserve for Hotel Occupancy and Other Taxes

 

As a result of this litigation and other attempts by jurisdictions to levy similar taxes, the Company has established a reserve for the potential resolution of issues related to hotel occupancy and other taxes in the amount of approximately $31 million at September 30, 2011 compared to approximately $26 million at December 31, 2010 (which includes, among other things, amounts related to the litigation in San Antonio). The reserve is based on the Company’s reasonable estimate, and the ultimate resolution of these issues may be less or greater, potentially significantly, than the liabilities recorded.

 

Developments in and after the Quarter Ended September 30, 2011

 

In the quarter ending September 30, 2011, two new putative class actions were commenced.  Town of Breckenridge, Colorado v. Colorado Travel Company, LLC et al. , 2011CV420 (Summit County District Court) was filed on July 25, 2011.  County of Nassau v. Expedia, Inc. et al. (Supreme Court of the State of New York, County of Nassau) was filed on September 26, 2011. This case previously had been dismissed from federal court and was refiled as a state court action.

 

On October 25, 2011, in City of Houston v. Hotels.com, L.P. (Harris County, Texas District Court, filed on March 5, 2007) (Tex. App., appeal filed April 14, 2010), the Texas 14th Court of Appeals affirmed the lower court’s grant of summary judgment in favor of the defendants on all claims, holding that the statutes at issue in that case did not apply to defendants’ hotel reservation facilitation services.  Plaintiffs may seek review by the Texas Supreme Court.

 

Two cases were dismissed in their entirety during the quarter.  In City of Santa Monica v. Expedia, Inc. et al. , JCCP 4472 (Los Angeles Superior Court, filed June 25, 2010), the court granted the online travel companies’ motion to dismiss all claims without leave to amend; judgment was entered on September 9, 2011 in favor of the defendants. Plaintiffs may seek an appeal.  In Township of Lyndhurst, New Jersey v. priceline.com Inc., et al. (filed in the U.S. District Court for the District of New Jersey in June 2008) (U.S. Court of Appeals for the Third Circuit, appeal filed April 2009), the Third Circuit affirmed the District Court’s dismissal of the case.  On August 24, 2011, the Third Circuit also denied the Township’s motion for rehearing. Finally, on July 29, 2011, in Hamilton County, Ohio, et al. v. Hotels.com, L.P., et al. (U.S. District Court for the Northern District of Ohio, filed in August 2010), the court granted in part and denied in part the defendants’ motion to dismiss, dismissing plaintiff counties’ breach of contract, declaratory judgment and violation of tax statutes claims.  The plaintiffs’ unjust enrichment, money had and received, conversion, constructive trust and damages claims remain pending.

 

The Company reached agreements in principle resolving claims in three cases: County of Genesee, Michigan, et al. v. Hotels.com L.P., et al. (Circuit Court for the County of Ingham, Michigan, filed in February 2009); City of Jacksonville v. Hotels.com, L.P., et al., 2006-CA-005393 (Circuit Court for Duval County, filed August 4, 2006), and Anne Gannon v. Hotels.com, L.P., , 50 2009 CA 025919 (Circuit Court for Palm Beach County, filed July 30, 2009).  The Company expects these cases to be dismissed pursuant to these agreements shortly.  In addition, pursuant to an agreement reached in July, 2011, City of Myrtle Beach, South Carolina v. Hotels.com, L.P., et al. (Court of Common Pleas for Horry County, South Carolina, filed in February 2007) was dismissed with prejudice on September 8, 2011.   Pursuant to an agreement reached in May, 2011, Town of Hilton Head Island, South Carolina v. Hotels.com, L.P., et al. (Court of Common Pleas for Beaufort County, South Carolina, filed in April 2010) was dismissed with prejudice on July 22, 2011.

 

In City of San Diego, California v. Hotels.com, L.P., et al. , JCCP 4472 (Los Angeles Superior Court, filed February 9, 2006), on September 6, 2011, the court granted the online travel companies’ petition to (i) vacate the hearing officer’s prior ruling that the online travel company defendants are liable for transient occupancy tax pursuant to San Diego’s ordinance, (ii) issue a new ruling that the online travel company defendants are not liable for such tax, and (iii) to set aside the City of San Diego’s assessments.  With respect to its remaining claims, the City of San Diego has indicated it will stipulate to a consent judgment in favor of the online travel companies.  The City has indicated it plans to appeal.

 

In City of San Antonio, Texas v. Hotels.com, L.P., et al. (U.S. District Court for the Western District of Texas; filed in May 2006), on October 18, 2011, plaintiffs filed a motion to amend the court’s findings of fact and conclusions of law on penalty calculations.  The Company believes plaintiffs’ motion is without merit and will vigorously oppose it.

 

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In addition, on August 3, 2011, in County of Lawrence, Pennsylvania v. Hotels.com, L.P., et al. (Court of Common Pleas of Lawrence County, Pennsylvania, filed Nov. 2009) (Commonwealth Court of Pennsylvania, appeal filed in November 2010), the Court for the Commonwealth of Pennsylvania reversed the dismissal by the Court of Common Pleas of Lawrence of the County’s declaratory action, but affirmed the dismissal of the remaining counts.  In District of Columbia v. Expedia, Inc., et al. (Superior Court of the District of Columbia, filed in March 2011), on October 12, 2011, the court denied defendants’ motion to dismiss the complaint seeking declaratory and monetary relief under the District of Columbia’s Sales Tax Statute which existed before and after an April 8, 2011 amendment.  In The Village of Rosemont, Illinois v. priceline.com, Inc., et al. (U.S. District Court for the Northern District of Illinois, filed in July 2009), on October 14, 2011, the court granted plaintiff’s motion for summary judgment.  The Court stated that it expects the parties to discuss final disposition of the case at its next scheduling conference.

 

In addition to these developments, a discussion of the remaining legal proceedings listed below can be found in the section titled “Legal Proceedings” of the Company’s Annual Report on Form 10-K for the year ended December 31, 2010.  The Company intends to vigorously defend against the claims in all of the proceedings described below.

 

Statewide Class Actions and Putative Class Actions

 

Such actions include:

 

·                   City of Los Angeles, California v. Hotels.com, Inc., et al. (California Superior Court, Los Angeles County; filed in December 2004)

·                   City of Rome, Georgia, et al. v. Hotels.com, L.P., et al. (U.S. District Court for the Northern District of Georgia; filed in November 2005)

·                   City of San Antonio, Texas v. Hotels.com, L.P., et al. (U.S. District Court for the Western District of Texas; filed in May 2006)

·                   City of Jacksonville, Florida, et al. v. Hotels.com, L.P., et al. (Circuit Court, Fourth Judicial Circuit, Duval County, Florida; filed in July 2006)

·                   City of Gallup, New Mexico v. Hotels.com, L.P., et al. (U.S. District Court for the District of New Mexico; filed in July 2007)

·                   City of Goodlettsville, Tennessee, et al. v. priceline.com Incorporated, et al. (U.S. District Court for the Middle District of Tennessee; filed in June 2008)

·                   Pine Bluff Advertising and Promotion Commission, Jefferson County, Arkansas, et al. v. Hotels.com, LP, et al. (Circuit Court of Jefferson County, Arkansas; filed in September 2009)

·                   County of Lawrence, Pennsylvania v. Hotels.com, L.P., et al. (Court of Common Pleas of Lawrence County, Pennsylvania; filed Nov. 2009); (Commonwealth Court of Pennsylvania; appeal filed in November 2010)

 

Actions Filed on Behalf of Individual Cities, Counties and States

 

Such actions include:

 

·                   City of Findlay, Ohio v. Hotels.com, L.P., et al. (U.S. District Court for the Northern District of Ohio; filed in October 2005); and City of Columbus, Ohio, et al. v. Hotels.com, L.P., et al. (U.S. District Court for the Southern District of Ohio; filed in August 2006); (U.S. District Court for the Northern District of Ohio)

·                   City of Chicago, Illinois v. Hotels.com, L.P., et al. (Circuit Court of Cook County Illinois; filed in November 2005)

·                   City of San Diego, California v. Hotels.com L.P., et al. (California Superior Court, San Diego County; filed in September 2006) (Superior Court of California, Los Angeles County)

·                   City of Atlanta, Georgia v. Hotels.com L.P., et al. (Superior Court of Fulton County, Georgia; filed in March 2006); (Court of Appeals of the State of Georgia; appeal filed in January 2007); (Georgia Supreme Court; further appeal filed in December 2007)

·                   Wake County, North Carolina v. Hotels.com, LP, et al. (General Court of Justice, Superior Court Division, Wake County, North Carolina; filed in November 2006); Dare County, North Carolina v. Hotels.com, LP, et al. (General Court of Justice, Superior Court Division, Dare County, North

 

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Carolina; filed in January 2007); Buncombe County, North Carolina v. Hotels.com, LP, et al. (General Court of Justice, Superior Court Division, Buncombe County, North Carolina; filed in February 2007); Mecklenburg County, North Carolina v. Hotels.com LP, et al. (General Court of Justice, Superior Court Division, Mecklenburg County, North Carolina; filed in January 2008)

·                   City of Branson, Missouri v. Hotels.com, LP., et al. (Circuit Court of Greene County, Missouri; filed in December 2006)

·                   City of Houston, Texas v. Hotels.com, LP., et al. (District Court of Harris County, Texas; filed in March 2007)

·                   City of Oakland, California v. Hotels.com, L.P., et al. (U.S. District Court for the Northern District of California; filed in June 2007); (U.S. Court of Appeals for the Ninth Circuit; appeal filed in December 2007)

·                   County of Genesee, Michigan, et al. v. Hotels.com L.P., et al. (Circuit Court for the County of Ingham, Michigan; filed in February 2009)

·                   City of Bowling Green, Kentucky v. Hotels.com L.P. et al. (Warren Cir. Ct., Kentucky, Div. 1; filed in March 2009); (Commonwealth of Kentucky Court of Appeals; appeal filed in April 2010)

·                   St. Louis County, Missouri v. Prestige Travel, Inc. et al. (Circuit Court of St. Louis County, Missouri; filed in July 2009)

·                   The Village of Rosemont, Illinois v. priceline.com, Inc., et al. (U.S. District Court for the Northern District of Illinois; filed in July 2009)

·                   Palm Beach County, Florida v. priceline.com, Inc., et al. (Circuit Court for Palm Beach County, Florida; filed in July 2009)

·                   Leon County, et al. v. Expedia, Inc., et al. (Second Judicial Circuit Court for Leon County, Florida; filed Nov. 2009); Leon County v. Expedia, Inc. et al. (Second Judicial Circuit Court for Leon County, Florida; filed in December 2009)

·                   City of Birmingham, Alabama, et al. v. Orbitz, Inc., et al. (Circuit Court of Jefferson County, Alabama; filed in December 2009)

·                   Baltimore County, Maryland v. priceline.com, Inc., et al. (U.S. District Court for the District of Maryland; filed in May 2010)

·                   Hamilton County, Ohio, et al. v. Hotels.com, L.P., et al. (U.S. District Court for the Northern District Of Ohio; filed in August 2010)

·                   State of Florida Attorney General v. Expedia, Inc., et al. (Circuit Court — Second Judicial Circuit, Leon County, Florida; filed in November 2010)

·                   Montana Department of Revenue v. priceline.com, Inc., et al. (First Judicial District Court of Lewis and Clark County, Montana; filed in November 2010)

·                   Montgomery County, Maryland v. Priceline.com, Inc., et al. (United States District Court for the District of Maryland; filed in December 2010)

 

The Company has also been informed by counsel to the plaintiffs in certain of the aforementioned actions that various, undisclosed municipalities or taxing jurisdictions may file additional cases against the Company, Lowestfare.com LLC and Travelweb LLC in the future.

 

Judicial Actions Relating to Assessments Issued by Individual Cities, Counties and States

 

After administrative remedies have been exhausted, the Company may seek judicial review of assessments issued by an individual city or county.  Currently pending actions seeking such a review include:

 

·                   Priceline.com, Inc., et al. v. Broward County, Florida (Circuit Court — Second Judicial Circuit, Leon County, Florida; filed in January 2009)

·                   Priceline.com Inc., et al. v. City of Anaheim, California, et al. (Superior Court of California, County of Orange; filed in February 2009); (Superior Court of California, County of Los Angeles)

·                   Priceline.com, Inc. v. Indiana Department of State Revenue (Indiana Tax Court; filed in March 2009)

 

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·                   Priceline.com, Inc., et al. v. City of San Francisco, California, et al. (Superior Court of California, County of San Francisco; filed in June 2009); (Superior Court of California, County of Los Angeles)

·                   Priceline.com, Inc. v. Miami-Dade County, Florida, et al. (Eleventh Judicial Circuit Court for Miami Dade, County, Florida; filed in December 2009)

·                   Priceline.com, Inc., et al. v. Osceola County, Florida, et al. (Circuit Court of the Second Judicial Circuit, in and For Leon County, Florida; filed in January 2011)

·                   In the Matter of the Tax Appeal of priceline.com Inc. In the Matter of the Tax Appeal of Lowestfare.com LLC and In the Matter of the Tax Appeal of Travelweb LLC  (Tax Appeal Court of the State of Hawaii; filed in March 2011)

 

The Company intends to prosecute vigorously its claims in these actions.

 

Consumer Class Actions

 

·                   In Chiste, et al. v. priceline.com Inc., et al. (United States District Court for the Southern District of New York; filed in December 2008), the District Court granted the Company’s motion to dismiss all claims against it except the breach of fiduciary claim, which, the court ordered transferred to Illinois.  On July 11, 2011, the case was transferred to the United States District Court for the Northern District of Illinois for resolution of the remaining claim, which was consolidated under Peluso v. Orbitz.com, et al. , 11 Civ. 4407 on July 14, 2011.  On July 13, 2011, plaintiffs filed notices of appeal in the Second Circuit Court of Appeals of the court’s orders in the Southern District of New York.  On July 26, 2011, the Peluso court granted plaintiff’s motion to voluntarily dismiss the claim against the Company in the Northern District of Illinois.  On August 5, 2011, the Company moved to dismiss the appeal in the Second Circuit Court of Appeals as improperly filed there.

 

The Company intends to defend vigorously against the claims in all of the on-going proceedings described above.

 

Administrative Proceedings and Other Possible Actions

 

At various times, the Company has also received inquiries or proposed tax assessments from municipalities and other taxing jurisdictions relating to the Company’s charges and remittance of amounts to cover state and local hotel occupancy and other related taxes.  Among others, the City of Philadelphia, Pennsylvania; the City of Phoenix, Arizona (on behalf of itself and 12 other Arizona cities); the City of Paradise Valley, Arizona; and the City of Denver, Colorado; and state tax officials from Arkansas, Florida, Hawaii, Indiana, Louisiana, Maryland, New Mexico, Ohio, Pennsylvania, Texas, West Virginia, Wisconsin, and Wyoming have begun formal or informal administrative procedures or stated that they may assert claims against the Company relating to allegedly unpaid state or local hotel occupancy or related taxes.  Since late 2008, the Company has received audit notices from more than forty cities in the state of California.  The Company is engaged in audit proceedings in each of those cities.  The Company has also been contacted for audit by five counties in the state of Utah and by the City of St. Louis, Missouri.  In addition, the state of Maryland has notified the Company of its intention to issue a proposed tax assessment relating the Company’s charges and remittance of amounts to cover state sales taxes on rental car transactions.

 

Litigation Related to Securities Matters

 

On March 16, March 26, April 27, and June 5, 2001, respectively, four putative class action complaints were filed in the U.S. District Court for the Southern District of New York naming priceline.com, Inc., Richard S. Braddock, Jay Walker, Paul Francis, Morgan Stanley Dean Witter & Co., Merrill Lynch, Pierce, Fenner & Smith, Inc., BancBoston Robertson Stephens, Inc. and Salomon Smith Barney, Inc. as defendants (01 Civ. 2261, 01 Civ. 2576, 01 Civ. 3590 and 01 Civ. 4956).  Shives et al. v. Bank of America Securities LLC et al. , 01 Civ. 4956, also names other defendants and states claims unrelated to the Company.  The complaints allege, among other things, that the Company and the individual defendants violated the federal securities laws by issuing and selling priceline.com common stock in the Company’s March 1999 initial public offering without disclosing to investors that some of the underwriters in the offering, including the lead underwriters, had allegedly solicited and received excessive and undisclosed commissions from certain investors.  After extensive negotiations, the parties reached a

 

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comprehensive settlement on or about March 30, 2009.  On April 2, 2009, plaintiffs filed a Notice of Motion for Preliminary Approval of Settlement.  On June 9, 2009, the court granted the motion and scheduled the hearing for final approval for September 10, 2009.  The settlement, previously approved by a special committee of the Company’s Board of Directors, compromised the claims against the Company for approximately $0.3 million. The court issued an order granting final approval of the settlement on October 5, 2009.  Notices of appeal of the court’s order have been filed with the Second Circuit.  All but one of the appeals has been resolved.  The remaining appeal is still pending.

 

The Company intends to defend vigorously against the claims in all of the proceedings described in this Note 14.  The Company has accrued for certain legal contingencies where it is probable that a loss has been incurred and the amount can be reasonably estimated.  Except as disclosed, such amounts accrued are not material to the Company’s consolidated balance sheets and provisions recorded have not been material to the Company’s consolidated results of operations or cash flows.  The Company is unable to estimate the potential maximum range of loss.

 

From time to time, the Company has been, and expects to continue to be, subject to legal proceedings and claims in the ordinary course of business, including claims of alleged infringement of third party intellectual property rights.  Such claims, even if not meritorious, could result in the expenditure of significant financial and managerial resources, divert management’s attention from the Company’s business objectives and could adversely affect the Company’s business, results of operations, financial condition and cash flows.

 

OFT Inquiry

 

In September 2010, the United Kingdom’s Office of Fair Trading (the “OFT”), the competition authority in the U.K., announced it was conducting a formal early stage investigation into suspected breaches of competition law in the hotel online booking sector and had written to a number of parties in the industry to request information.  Specifically, the investigation focuses upon whether agreements and/or concerted practices between hotels and online travel companies relating to hotel room reservations breach UK competition law.  In September 2010, Booking.com B.V. and priceline.com Incorporated, on behalf of Booking.com, received a Notice of Inquiry from the OFT; the Company and Booking.com are cooperating with the OFT’s investigation.  The Company is unable at this time to predict the outcome of the OFT’s investigation and the impact, if any, on the Company’s business, financial condition and results of operations.

 

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Item 2.  Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

The following discussion should be read in conjunction with our Unaudited Consolidated Financial Statements, including the notes to those statements, included elsewhere in this Form 10-Q, and the Section entitled “Special Note Regarding Forward Looking Statements” in this Form 10-Q.  As discussed in more detail in the Section entitled “Special Note Regarding Forward Looking Statements,” this discussion contains forward-looking statements, which involve risks and uncertainties.  Our actual results may differ materially from the results discussed in the forward-looking statements.  Factors that might cause those differences include, but are not limited to, those discussed in “Risk Factors.”

 

Overview

 

We are a leading online travel company that offers our customers hotel room reservations at over 200,000 hotels worldwide through the Booking.com, priceline.com and Agoda brands.  We offer international car rental reservation services through TravelJigsaw, which we acquired in May 2010.  In the United States, we also offer our customers car rental reservations, airline tickets, vacation packages, cruises and destination services.

 

We launched our business in the United States in 1998 under the priceline.com brand and have since expanded our operations to include the Booking.com, Agoda and TravelJigsaw companies.  Our principal goal is to serve our customers with worldwide leadership in online hotel and rental car reservations.  Our business is driven primarily by international results.  During the nine months ended September 30, 2011, our international business (the significant majority of which is generated by Booking.com) represented approximately 78% of our gross bookings (an operating and statistical metric referring to the total dollar value, generally inclusive of all taxes and fees, of all travel services purchased by our customers), and approximately 88% of our consolidated operating income.  Given that the business of our international operations is primarily comprised of hotel reservation services, commissions earned in connection with the reservation of hotel room nights represents a substantial majority of our gross profit.

 

Our priceline.com brand in the U.S. offers merchant Name Your Own Price ®  travel services (sometimes referred to as “opaque” travel services), which are recorded in revenue on a “gross” basis and have associated cost of revenue.  Retail, or price-disclosed, travel services offered by both our U.S. and international brands are recorded in revenue on a “net” basis and have no associated cost of revenue.   Therefore, revenue increases and decreases are impacted by changes in the mix of our revenues between Name Your Own Price ®  and retail travel services.  Gross profit reflects the net margin earned for both our Name Your Own Price ®  and retail travel services. Consequently, gross profit has become an increasingly important measure of evaluating growth in our business.  At present, we derive substantially all of our gross profit from the following sources:

 

·                   Commissions earned from price-disclosed hotel room reservations, rental cars, cruises and other travel services;

 

·                   Transaction gross profit and customer processing fees from our Name Your Own Price ®  hotel room reservation, rental car and airline ticket services, as well as our vacation packages service;

 

·                   Transaction gross profit and customer processing fees from our price-disclosed merchant hotel room and rental car reservation services;

 

·                   Global distribution system (“GDS”) reservation booking fees related to both our Name Your Own Price ®  airline ticket, hotel room reservation and rental car services, and price-disclosed airline tickets and rental car services; and

 

·                   Other gross profit derived primarily from selling advertising on our websites.

 

Over the last several years we have experienced strong growth in the number of hotel room night reservations booked through our hotel reservation services.  We believe this growth is the result of, among other things, the broader shift of travel purchases from offline to online, the high growth of travel overall in emerging

 

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markets such as Asia-Pacific and South America, and the continued innovation and execution by our teams around the world to build hotel supply, content and distribution and to improve the customer experience on our websites.  We experienced exceptionally strong year-over-year growth during the first three quarters of 2011.  However, given the sheer size of our hotel reservation business, we believe it is highly likely that our year-over-year growth rates will generally decelerate on a quarterly sequential basis in the future.  In the third quarter of 2011, we experienced deceleration in year-over-year hotel room night reservation growth as compared to the year-over-year growth rate in the second quarter of 2011, and we expect to experience further deceleration in growth rates in the fourth quarter of 2011 and beyond.

 

In addition, many governments around the world, including the U.S. and certain European governments, are operating at very large financial deficits.  Governmental austerity measures aimed at reducing deficits could impair the economic recovery and adversely affect travel demand.  Weak economic growth and elevated unemployment rates in the economies of such countries could cause, contribute to, or be indicative of, deteriorating macro-economic conditions.  Recently, we have experienced short-term volatility in the transactional growth rates and in the growth in cancellations for our international business, which may make it more difficult to predict longer-term trends and the future impact of macro-economic weakness on our business.  Finally, higher oil prices are contributing to higher airline ticket prices and are likely to adversely impact consumer discretionary funds available to be spent on travel.

 

Large, established Internet search engines with substantial resources and expertise in developing online commerce and facilitating Internet traffic are creating — and intend to further create — inroads into online travel, both in the U.S. and internationally.  For example, following its acquisition of ITA Software, Inc., a major flight information software company, Google recently launched a new flight search tool that enables users to find fares, schedules and availability directly on Google and excludes online travel agent (“OTA”) participation within the search results.  Google has also invested in HomeAway, a publicly traded vacation home rental service, and launched “Hotel Finder,” a utility that allows users to search and compare hotel accommodations based on parameters set by the user.  In addition, Microsoft has launched Bing Travel , which searches for airfare and hotel reservations online and predicts the best time to purchase them.  “Meta-search” sites leverage their search technology to aggregate travel search results for the searcher’s specific itinerary across supplier, travel agent and other websites and, in many instances, compete directly with us for customers.  Furthermore, certain suppliers limit OTA participation within the meta-search results.  Some meta-search sites, such as Kayak.com, which offers its users the ability to make hotel reservations directly on its website, may evolve into more traditional online travel sites.  These initiatives, among others, illustrate a clear intention to more directly appeal to travel consumers by showing consumers more detailed travel search results, including specific information for travelers’ own itineraries, which could lead to suppliers or others gaining a larger share of search traffic or may ultimately lead to search engines maintaining transactions within their own websites.  If Google, as the single largest search engine in the world, or Bing, or other leading search engines refer significant traffic to these or other travel services that they develop in the future, it could result in, among other things, more competition from supplier websites and higher customer acquisition costs for third-party sites such as ours and could have a material adverse effect on our business, results of operations and financial condition.

 

Hotels are increasingly offering hotel room reservations through “daily deal” websites such as Groupon and Living Social, which sell coupons to customers at a substantial discount.  Expedia recently entered into a partnership with Groupon to sell hotel room reservations to Groupon customers under the “Groupon Getaways” brand name.  If these new services are successful, we may experience less demand for our services and are likely to face more competition for access to the limited supply of discounted hotel room rates.

 

International Trends .  The size of the travel market outside of the United States is substantially greater than that within the United States.  Historically, Internet adoption rates and e-commerce adoption rates of international consumers have trailed those of the United States.  However, international consumers are rapidly moving to online means for purchasing travel.  Accordingly, recent international online travel growth rates have substantially exceeded, and are expected to continue to exceed, the growth rates within the United States.  In addition, the base of hotel suppliers in Europe and Asia is particularly fragmented compared to that in the United States, where the hotel market is dominated by large hotel chains.  We believe online reservation systems like ours may be more appealing to small chains and independent hotels more commonly found outside of the United States.  Our growth has primarily been generated by our international hotel reservation service brands, Booking.com and Agoda.  Booking.com, our most significant brand, currently includes over 170,000 hotels on its website as compared to

 

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about 105,000 hotels last year (updated hotel counts are available on the Booking.com website).  Booking.com has added hotels over the past year in its core European market as well as higher-growth markets such as North America (which is a newer market for Booking.com), Asia-Pacific and South America.  An increasing amount of our business from both a destination and point-of-sale perspective is conducted in these newer markets which are growing faster than our overall growth rate.  We believe these trends and factors have enabled us to become the top online hotel reservation service provider in the world as measured by room nights booked.

 

As our international operations have become significant contributors to our results and international hotel bookings have become of increased importance to our earnings, we have seen, and expect to continue to see, changes in certain of our operating expenses and other financial metrics.  For example, because Booking.com and Agoda utilize online search and affiliate marketing as the principal means of generating traffic to their websites, our online advertising expense has increased significantly over recent years, a trend we expect to continue throughout the remainder of 2011.  In addition, and as discussed in more detail below, we have seen the effects of seasonal fluctuations on our operating results change as a result of different revenue recognition policies that apply to our price-disclosed services (including our international hotel service) as compared to our Name Your Own Price ®  services, as well as increased business in Asia and the southern hemisphere, which has different seasonality than Europe and North America.

 

Another impact of the growing importance of Booking.com, Agoda and TravelJigsaw is our increased exposure to foreign currency exchange risk.  Because we are conducting a significant and growing portion of our business outside the United States and are reporting our results in U.S. Dollars, we face exposure to adverse movements in currency exchange rates as the financial results of our international operations are translated from local currency (principally the Euro and the British Pound Sterling) into U.S. Dollars upon consolidation.  A strengthening of the Euro increases our Euro-denominated net assets, gross bookings, gross profit, operating expenses, and net income as expressed in U.S. Dollars, while a weakening of the Euro decreases our Euro-denominated net assets, gross bookings, gross profit, operating expenses, and net income as expressed in U.S. Dollars.  Greece, Ireland, Portugal and certain other European Union countries with high levels of sovereign debt have had difficulty refinancing their debt.  Concern around devaluation or abandonment of the Euro common currency, or that sovereign default risk may be more widespread and could include the U.S., has led to significant volatility in the exchange rate between the Euro, the U.S. dollar and other currencies.  We generally enter into derivative instruments to minimize the impact of short-term currency fluctuations on our consolidated operating results.  However, such derivative instruments are short term in nature and not designed to hedge against currency fluctuation that could impact our foreign currency denominated gross bookings, revenue or gross profit (see Note 6 to the Unaudited Consolidated Financial Statements for additional information on our derivative contracts).  For example, while revenue from our international operations grew on a local currency basis by approximately 68% and 71% for the three and nine months ended September 30, 2011, respectively, on a consolidated basis, as a result of the positive impact of currency exchange rates, revenue from our international operations as reported in U.S. dollars grew 79% and 83%, respectively, during the same periods.

 

Domestic Trends .  Competition in domestic online travel remains intense and traditional online travel companies are creating new promotions and consumer value features in an effort to gain competitive advantage.  In particular, the competition to provide “opaque” hotel services to consumers, an area in which priceline.com has been a leader, has become more intense over the recent past.  For example, in the fourth quarter of 2010, Expedia began making opaque hotel room reservations available on its principal website under the name “Expedia Unpublished Rates” and has been supporting the initiative with a national television advertising campaign.  In addition, in 2009, Travelocity launched an opaque price-disclosed hotel booking service that allows customers to book rooms at a discount.  As with our Name Your Own Price ®  hotel booking service, for these services, the name of the hotel is not disclosed until after purchase.  We believe these new offerings, in particular Expedia Unpublished Rates, have adversely impacted the market share and year-over-year growth rate for our opaque hotel service, which experienced a decline in room night reservations in the third quarter of 2011 compared to the third quarter of 2010.  In addition, hotels are increasingly offering discounted hotel room reservations through “daily deal” websites such as Groupon and Living Social.  If Expedia or Travelocity are successful in growing their opaque hotel service, and/or “daily deal” websites are successful in garnering a sizable share of discounted hotel bookings, we may have less consumer demand for our opaque hotel service over time and we are likely to face more competition for access to the limited supply of

 

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discounted hotel room rates.  As a result, we believe our share of the discount hotel market in the U.S. could further decrease.

 

We believe that for a number of reasons, including the recent significant year-over-year increase in retail airfares, consumers are engaging in increased shopping behavior before making a travel purchase than they engaged in previously.  Increased shopping behavior reduces our advertising efficiency and effectiveness because traffic becomes less likely to result in a purchase on our website, and such traffic is more likely to be obtained through paid online advertising channels than through free direct channels.

 

While demand for online travel services in the U.S. continues to experience annualized growth, we believe that the domestic market share of third-party distributors, like priceline.com, has declined over the last several years and that the growth of the domestic online market for travel services has slowed.  We believe the decline in market share is attributable, in part, to a concerted initiative by travel suppliers to direct customers to their own websites in an effort to reduce distribution expenses and establish more direct control over their pricing.

 

Some travel suppliers are encouraging third-party travel intermediaries, such as us, to develop technology to bypass the traditional GDSs, such as enabling direct connections to the travel suppliers or using alternative global distribution methods.  For example, in 2011, we enabled a direct connection with American Airlines.  During 2011, American content was temporarily unavailable on Expedia and Orbitz due to disputes related to enabling a direct connection.  We believe that this is consistent with an effort on the part of American Airlines, and the airline industry in general, to reduce distribution costs and could be indicative of the airlines in general becoming more aggressive in requiring online travel agents to implement direct connections.  Development and implementation of the technology to enable additional direct connections to travel suppliers could cause us to incur additional operating expenses, increase the frequency/duration of system problems and delay other projects.  In addition, any additional migration toward direct connections would reduce the compensation we receive from GDSs.

 

Many current agreements between major U.S. airlines and major GDSs are due to expire during or at the end of 2011.  It is unclear whether and to what extent any new agreement (or extension or renewal of any existing agreement) between any major U.S. airline and any major GDS will enable GDS subscribers, such as us, equal access to the fares, inventory and content provided by such carrier through the GDS.  Furthermore, it is possible that a dispute between an airline and a GDS could lead to an airline removing its fares from the GDS.  Despite the fact that such a dispute may not involve us, our business could be adversely affected if we are denied access to airfares in a major GDS.

 

Domestic airlines have reduced capacity and increased fares since the latter part of 2009, a trend which may continue.  Decreases in capacity reduce the amount of airline tickets available to us, while significant increases in average airfares in 2010 and thus far in 2011 have adversely impacted leisure travel demand.  Reduced airline capacity and demand negatively impact our priceline.com air business, which in turn has negative repercussions on our priceline.com hotel and rental car businesses.  Our rental car business is further impacted by decreases in rental car fleets, which has negatively impacted our Name Your Own Price ®  rental car service.  As a result of these challenges, we experienced a decline in Name Your Own Price ®  airline tickets and rental car days during the year ended December 31, 2010 compared to 2009.  Our access to discounted airline ticket and rental cars improved during 2011, but we expect continued variability in the breadth and depth of discounted airline tickets and rental car rates made available to us in the future, depending on market conditions from time to time.

 

We believe that our success will depend in large part on our ability to maintain profitability, primarily from our hotel business, to continue to promote the Booking.com, Agoda and TravelJigsaw brands internationally and the priceline.com brand in the United States, and, over time, to offer other travel services and further expand into other international markets. Factors beyond our control, such as worldwide recession, higher oil prices, terrorist attacks, unusual weather patterns, natural disasters such as earthquakes, hurricanes, tsunamis, floods, volcanic eruptions (such as the April 2010 eruption of a volcano in Iceland), travel related health concerns including pandemics and epidemics such as Influenza H1N1, avian bird flu and SARS, political instability, regional hostilities, imposition of taxes or surcharges by regulatory authorities, travel related accidents or the withdrawal from our system of a major

 

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hotel supplier or airline, could adversely affect our business and results of operations and impair our ability to effectively implement all or some of the initiatives described above.

 

For example, in early 2011, Japan was struck by a major earthquake, tsunami and nuclear emergency.  Japan is an important source of travel demand for Agoda, and these crises have had an adverse impact on travel demand originating in Japan and demand for Japanese destinations.  In October 2011, severe flooding in Thailand, a key market for our Agoda business and the Asian business of Booking.com, negatively impacted booking volumes in this market.  In addition, in early 2010, Thailand experienced disruptive civil unrest, which caused the temporary relocation of Agoda’s Thailand-based operations.  Future natural disasters or civil or political unrest could further disrupt our business and operations in Thailand.

 

We intend to continue to invest in marketing and promotion, technology and personnel within parameters consistent with attempts to improve long-term operating results.  We also intend to broaden the scope of our business, and to that end, we explore strategic alternatives from time to time in the form of, among other things, mergers and acquisitions. Our goal is to improve volume and sustain margins in an effort to maintain profitability. The uncertain environment described above makes the prediction of future results of operations difficult, and accordingly, we cannot provide assurance that we will sustain gross profit growth and profitability.

 

Seasonality .  A meaningful amount of retail gross bookings are generated early in the year, as customers plan and reserve their spring and summer vacations in Europe and North America.  However, we do not recognize associated revenue until future quarters when the travel occurs.  From a cost perspective, we expense the substantial majority of our advertising activities as they are incurred, which is typically in the quarter in which bookings are generated.  As a result, we typically experience our highest levels of profitability in the second and third quarters of the year, which is when we experience the highest levels of booking and travel consumption for the year for our North American and European businesses.  However, we experience the highest levels of booking and travel consumption for our Asia-Pacific and South American businesses in the first and fourth quarters.  Therefore, if these businesses continue to grow faster than our North American and European businesses, our operating results for the first and fourth quarters of the year may become more significant over time as a percentage of full year operating results.

 

Recent Developments .  In October 2011, we entered into a $1 billion five-year unsecured revolving credit facility with a group of lenders. Borrowings under the revolving credit facility will bear interest, at our option, at a rate per annum equal to either (i) the adjusted LIBOR for the interest period in effect for such borrowing plus an applicable margin ranging from 1.00% to 1.50%; or (ii) the greatest of (a) JPMorgan Chase Bank, National Association’s prime lending rate, (b) the federal funds rate plus ½ of 1%, and (c) an adjusted LIBOR for an interest period of one month plus 1.00%, plus an applicable margin ranging from 0.00% to 0.50%.  Undrawn balances available under the revolving credit facility are subject to commitment fees at the applicable rate ranging from 0.10% to 0.25%.

 

The revolving credit facility provides for the issuance of up to $100.0 million of letters of credit as well as borrowings of up to $50 million on same-day notice, referred to as swingline loans.  Borrowings under the revolving credit facility may be made in U.S. dollars, Euros, Pounds Sterling and any other foreign currency agreed to by the lenders.  The proceeds of loans made under the facility will be used for working capital and general corporate purposes. As of November 7, 2011, there were no borrowings under the facility, and approximately $1.8 million of letters of credit were issued under the facility.  Upon entering into this new revolving credit facility, we terminated our $175.0 million revolving credit facility entered into in 2007 (see Note 9 to the Unaudited Consolidated Financial Statements).

 

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Results of Operations

 

Three and Nine Months Ended September 30, 2011 compared to the Three and Nine Months Ended September 30, 2010

 

Operating Metrics

 

Our financial results are driven by certain operating metrics that encompass the booking activity generated by our travel services.  Specifically, reservations of hotel room nights, rental car days and airline tickets capture the volume of units purchased by our customers.  Gross bookings is an operating and statistical metric that captures the total dollar value, generally inclusive of taxes and fees, of all travel services booked by our customers, and is widely used in the travel business.  International gross bookings reflect gross bookings generated principally by websites owned by, operated by, or dedicated to providing gross bookings for Booking.com, Agoda and TravelJigsaw, regardless of the location of the traveler or the destination booked.  For example, the gross bookings related to a U.S. customer booking a hotel room night at a U.S. destination on the Booking.com website will be reported in our international gross bookings.

 

Domestic gross bookings reflect gross bookings generated principally by websites owned by, operated by, or dedicated to providing gross bookings primarily by our U.S. priceline.com business, again without regard to the location of the travel or the customer purchasing the travel.

 

Gross bookings resulting from hotel room night reservations, rental car days and airline tickets reserved through our domestic and international operations for the three and nine months ended September 30, 2011 and 2010 were as follows (numbers may not total due to rounding):

 

 

 

Three Months Ended September 30,
(in millions)

 

 

 

Nine Months Ended September 30,
(in millions)

 

 

 

 

 

2011

 

2010

 

Change

 

2011

 

2010

 

Change

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Domestic

 

$

1,268

 

$

1,121

 

13.1

%

$

3,705

 

$

3,264

 

13.5

%

International

 

4,989

 

2,885

 

72.9

%

12,997

 

7,116

 

82.6

%

Total

 

$

6,257

 

$

4,006

 

56.2

%

$

16,702

 

$

10,381

 

60.9

%

 

Gross bookings increased by 56.2% and 60.9% for the three and nine months ended September 30, 2011, respectively, compared to the same periods in 2010, principally due to 47.4% and 52.5% growth in hotel room night reservations, respectively.  The 72.9% increase in international gross bookings (growth on a local currency basis was approximately 61.4%) was attributable to growth in international hotel room night reservations for our Booking.com and Agoda businesses, as well as higher average daily rates charged for hotel stays and growth in international rental car reservations for our TravelJigsaw business.  Domestic gross bookings increased by 13.1% and 13.5% for the three and nine months ended September 30, 2011, respectively, compared to the same periods in 2010, primarily due to growth in price-disclosed airline ticket and hotel room night reservations and Name Your Own Price ®  airline ticket and rental car day reservations.  Higher average daily rates (“ADRs”) drove growth in gross bookings related to our Name Your Own Price ®  hotel business despite a modest year-over-year decline in Name Your Own Price ®  hotel room night reservations in the three and nine months ended September 30, 2011.

 

Gross bookings resulting from hotel room night reservations, rental car days and airline tickets sold through our agency and merchant models for the three and nine months ended September 30, 2011 and 2010 were as follows:

 

 

 

Three Months Ended September 30,
(in millions)

 

 

 

Nine Months Ended September 30,
(in millions)

 

 

 

 

 

2011

 

2010

 

Change

 

2011

 

2010

 

Change

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Agency

 

$

5,121

 

$

3,168

 

61.6

%

$

13,627

 

$

8,225

 

65.7

%

Merchant

 

1,136

 

838

 

35.6

%

3,075

 

2,156

 

42.6

%

Total

 

$

6,257

 

$

4,006

 

56.2

%

$

16,702

 

$

10,381

 

60.9

%

 

Agency gross bookings increased 61.6% and 65.7% for the three and nine months ended September 30, 2011, respectively, compared to the same periods in 2010, due to growth in Booking.com hotel room night reservations.  Our U.S. priceline.com business also experienced growth in reservations of agency price-disclosed hotel

 

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room nights, airline tickets and rental car days.  Merchant gross bookings increased 35.6% and 42.6% for the three and nine months ended September 30, 2011, respectively, compared to the same periods in 2010, due to an increase in the sale of Agoda hotel room night reservations, TravelJigsaw rental car day reservations, priceline.com merchant price-disclosed hotel room night reservations and Name Your Own Price ®  airline ticket and rental car day reservations.

 

 

 

Hotel Room 
Nights

 

Rental
Car Days

 

Airline
Tickets

 

 

 

 

 

 

 

 

 

Three Months ended September 30, 2011

 

40.6 million

 

7.0 million

 

1.6 million

 

 

 

 

 

 

 

 

 

Three Months ended September 30, 2010

 

27.5 million

 

5.1 million

 

1.5 million

 

 

 

 

 

 

 

 

 

Nine Months ended September 30, 2011

 

108.0 million

 

18.5 million

 

4.9 million

 

 

 

 

 

 

 

 

 

Nine Months ended September 30, 2010

 

70.8 million

 

12.4 million

 

4.6 million

 

 

Hotel room night reservations increased by 47.4% and 52.5% for the three and nine months ended September 30, 2011, compared to the same periods in 2010, respectively, principally due to an increase in Booking.com, Agoda and priceline.com price-disclosed hotel room night reservations, partially offset by a decline in Name Your Own Price ®  hotel room night reservations.  Booking.com, our most significant brand, currently includes over 170,000 hotels on its website as compared to about 105,000 hotels last year (updated hotel counts are available on the Booking.com website).  Booking.com has added hotels over the past year in its core European market as well as higher-growth markets such as North America (which is a newer market for Booking.com), Asia-Pacific and South America.  An increasing amount of our business from a destination and point-of-sale perspective is conducted in these newer markets which are growing faster than our overall growth rate.  Our U.S. priceline.com agency hotel reservations benefited from the integration of U.S. hotels from the Booking.com extranet on the priceline.com website.

 

Rental car day reservations increased by 35.6% and 49.2% for the three and nine months ended September 30, 2011, respectively, compared to the same periods in 2010, due primarily to the inclusion of rental car day reservations from TravelJigsaw, which we acquired in May 2010, as well as an increase in Name Your Own Price ®  rental car days.

 

Airline ticket reservations increased by 7.7% and 5.7% for the three and nine months ended September 30, 2011, respectively, compared to the same periods in 2010 due to an increase in both price-disclosed and Name Your Own Price ®  airline ticket reservations.

 

Revenues

 

·                   Merchant revenues are derived from transactions where we are the merchant of record and therefore charge the customer’s credit card for the travel services provided.  Merchant revenues include (1) transaction revenues representing the selling price of Name Your Own Price ®  hotel room reservations, rental cars and airline tickets and price-disclosed vacation packages; (2) transaction revenues representing the amount charged to a customer, less the amount charged by suppliers in connection with (a) the hotel room reservations provided through our merchant price-disclosed hotel service in the U.S. and at Agoda, and (b) the rental car reservations provided through our merchant semi-opaque rental car service at TravelJigsaw (which allows customers to see the price of the reservation prior to purchase, but not the identity of the supplier); (3) customer processing fees charged in connection with the sale of Name Your Own Price ®  airline tickets, hotel room reservations and rental cars and merchant price-disclosed hotel reservations; and (4) ancillary fees