Exhibit
10.59


 


INDEMNIFICATION
AGREEMENT


 


This Indemnification Agreement (“Agreement”) is made as of November 10,
2009 by and between priceline.com Incorporated, a company, incorporated under
the laws of the State of Delaware (the “Company”), and Kees Koolen (“Indemnitee”).


 


RECITALS


 


WHEREAS, Indemnitee has been asked and has agreed to and may be asked
in the future to act (if applicable) as incorporator, (managing) director,
officer, supervisory director, secretary, (general) proxy-holder,
administrator, liquidator, attorney, manager, employee, agent or in any other
capacity whatsoever of the Company or any of its (to be incorporated)
affiliated or group companies, including but not limited to Booking.com B.V.,
Booking.com Limited and their affiliated companies (collectively with the
Company, the “Group Companies”);


 


WHEREAS, the Company has agreed to indemnify Indemnitee in any of the
aforementioned capacities to the extent contemplated by this Agreement;


 


WHEREAS, the Company and Indemnitee wish to enter into this Agreement
to clearly delineate the aforementioned indemnification;


 


WHEREAS, the Board of the Company has approved the entering of this
Agreement on October 14, 2009.


 


NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:


 


Section 1.  Services.  This Agreement shall not be deemed an
employment contract between the Company and Indemnitee.


 


Section 2.               Indemnification.
 The Company shall indemnify and hold Indemnitee
harmless in accordance with the provisions of this Section 2 if Indemnitee
is, or is threatened to be made, a party to or a participant in any
Proceeding.  Pursuant to this Section 2,
Indemnitee shall be indemnified against all damages, losses, penalties,
monetary sanctions, costs, expenses (including reasonable fees, costs and
expenses of attorneys, accountants, tax specialists and other advisors and
court costs) (“Expenses”), judgments, fines and amounts paid in
settlement actually and reasonably incurred, suffered or paid by Indemnitee or
on his behalf in
connection with such Proceeding or any claim, issue or matter therein or
settlement whether by any of the Group Companies (or any (ultimate) shareholder
or group company of the Group Companies) or a third party (collectively: a “Claim”),
if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the relevant Group Companies on which behalf
he acted.  For purposes of this Agreement,
the term “Proceeding” shall include any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether of a civil, criminal, administrative or
investigative nature, in 


 

















 


which Indemnitee
was, is or will be involved as a party or otherwise by reason of the fact that
Indemnitee is or was a director (managing or supervisory), officer, manager,
agent, employee, secretary, (general) proxy-holder, administrator, liquidator
or attorney of the Group Companies, in each case whether or not serving in such
capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement; provided, however,
that the term “Proceeding” shall not include any action, suit or arbitration
initiated by Indemnitee to enforce Indemnitee’s rights under this Agreement.


 


Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is by reason of his service to, within or for the benefit of the Group
Companies, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith.


 


The indemnification obligation of the Company will apply irrespectively
of whether the Indemnitee is still employed by, involved in or renders his
service (in whatever capacity) to the relevant Group Companies at the moment the
Claim is made, or whether the Claim dates from a date before or after the
signing of this Agreement, as well as irrespectively of whether the third party
is residing or seated in the Netherlands or abroad and irrespectively of
whether the Claim will be executed before a Dutch or foreign judge, or whether
the payments are due on account of a settlement (provided that such settlement
must be approved in advance by the Company, which approval will not be
unreasonably withheld, conditioned or delayed). 
The right to indemnification as provided for in this Agreement shall
inure to the benefit of Indemnitee’s heirs, executors and personal and legal
representatives.


 


Section 3.               Exclusions;
Limitations.  Notwithstanding any
provision in this Agreement to the contrary, and unless a court of competent
jurisdiction determines that indemnification should be provided in a final
non-appealable judgment, the Company shall not be obligated under this
Agreement to make any indemnity:


 


(a)           for which payment
has actually been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess beyond the
amount paid under any insurance policy or other indemnity provision (for which
excess the Company shall be and remain liable);


 


(b)           for claims initiated
or brought by Indemnitee against the Company or any Group Company, except (i) with
respect to Proceedings brought by Indemnitee to enforce a right to
indemnification under this Agreement or (ii) if the Board of Directors of
the Company has approved the initiation or bringing of such claim;


 


(c)           for any settlement
of any Proceeding by Indemnitee effected without the Company’s written consent,
which consent will not be unreasonably withheld, conditioned or delayed;


 


(d)           (i) for any
breach of Indemnitee’s duty of loyalty (as defined by Dutch law) to the
relevant Group Companies, (ii) for acts or omissions by Indemnitee not in
good faith 


 

















 


or which involve
willful or intentional misconduct, gross negligence or a knowing and willful violation
of law on the part of Indemnitee, (iii) for unlawful payment of a dividend
or distribution or unlawful stock or equity purchase or redemption by any Group
Company, or (iv) for any transaction from which Indemnitee derived an
improper and actual personal benefit; or


 


(e)           for which payment is
prohibited by applicable law,


 


The Company’s obligation to indemnify Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
employee or agent of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification from such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise.


 


Section 4.              Procedure
for Notification and Defense of Claim.


 


(a)           To
obtain indemnification under this Agreement, Indemnitee shall first submit to
the Company a written request therefor specifying in reasonable detail the claims
or circumstances under which Indemnittee believes he is entitled to
indemnification hereunder.


 


(b)           The Company will be
entitled to participate in the Proceeding at its own expense.


 


Section 5.               Duration
of Agreement; Binding Effect.  This
Agreement shall continue until and terminate upon the later of: (a) the
expiry of the relevant applicable statue of limitations of any Claim, or (b) the
final termination of any Proceeding, including any appeal, then pending in
respect of which Indemnitee is granted rights of indemnification hereunder.
This Agreement shall be binding upon the Company and its successors and assigns
and shall inure to the benefit of Indemnitee and his heirs, executors and administrators.


 


Section 6.               Repayment.  If and to the extent that it is established
by a competent court that one of the exceptions set forth in Clause 3 applies,
then all amounts paid by the relevant Companies pursuant to this Agreement in
relation to the events in question shall be deemed advance payments and
Indemnitee shall be required to repay such amounts to the relevant Companies,
unless otherwise provided for in the decision of the competent court or agreed
upon by parties to this Agreement.


 


Section 7.               Advance
Payment; D&O Insurance.  The
right to indemnification conferred by this Agreement shall include the right to
be paid by the Company the reasonable expenses incurred in defending or
otherwise participating in any proceeding in advance of its final
disposition.  The Company shall cover
Indemnitee under directors’ and officers’ liability insurance both during and,
while potential liability exists, after the employment, which insurance shall
cover all Group Companies.


 


Section 8.               Severability.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, 


 

















 


each portion of
any Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to conform
to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.


 


Section 9.               Entire
Agreement.  This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect to the
subject matter hereof.


 


Section 10.             Notice
by Indemnitee.  Each party agrees
promptly to notify the other parties in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding, claim or matter which may be subject to
indemnification hereunder.


 


Section 11.             Notices.  All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given if (a) delivered by hand and receipted for by the
party to whom said notice or other communication shall have been directed, (b) mailed
by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed, (c) mailed by reputable overnight
courier and receipted for by the party to whom said notice or other
communication shall have been directed or (d) sent by facsimile
transmission, with receipt of oral confirmation that such transmission has been
received:


 


(a)           If to Indemnitee, at
such address as Indemnitee shall provide to the Company.


 


(b)           If to the Company to:


 


priceline.com Incorporated


800 Connecticut Avenue


Norwalk, Connecticut 06854


Attention:  General Counsel


 


or to any other
address as may have been furnished to Indemnitee by the Company.


 


Section 12. No Termination. The parties hereby waive their
rights, if any, in whole or in part, to annul, terminate, rescind, dissolve or
cancel this Agreement, including on the basis of Sections 6:265 or 6:228 of the
Dutch Civil Code, or make any request thereto.


 


Section 13.             Applicable
Law and Consent to Jurisdiction.  This
Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in accordance 


 

















 


with, the laws of
the State of Delaware, without regard to its conflict of laws rules.  The Company and Indemnitee hereby irrevocably
and unconditionally (i) agree that any action or proceeding arising out of
or in connection with this Agreement shall be brought only in the Delaware
Court of Chancery (the “Delaware Court”), and not in any other state or
federal court in the United States of America or any court in any other
country, (ii) consent to submit to the exclusive jurisdiction of the Delaware
Court for purposes of any action or proceeding arising out of or in connection
with this Agreement, (iii) appoint, to the extent such party is not
otherwise subject to service of process in the State of Delaware, The Corporation
Trust Company, Wilmington, Delaware as its agent in the State of Delaware as
such party’s agent for acceptance of legal process in connection with any such
action or proceeding against such party with the same legal force and validity
as if served upon such party personally within the State of Delaware, (iv) waive
any objection to the laying of venue of any such action or proceeding in the
Delaware Court, and (v) waive, and agree not to plead or to make, any
claim that any such action or proceeding brought in the Delaware Court has been
brought in an improper or inconvenient forum.


 


IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
as of the day and year first above written.


 


	
   

  	
  priceline.com
  Incorporated

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffery H.
  Boyd

  
	
   

  	
   

  	
  Name:

  	
  Jeffery H. Boyd

  
	
   

  	
   

  	
  Title:

  	
  President and
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Indemnitee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kees Koolen

  
	
   

  	
   

  	
  Name: Kees
  Koolen