Exhibit
10.83


 




 


 





EMPLOYMENT
AGREEMENT


 


BY AND BETWEEN


 


 


PRICELINE.COM
INCORPORATED


 


AND


 


CHRIS SODER


 


 


FEBRUARY 7,
2005


 




 





 





















 


EMPLOYMENT
AGREEMENT


 


EMPLOYMENT AGREEMENT, dated as of February 7,
2005 (the “Effective Date”), by and between
Priceline.com Incorporated, a Delaware corporation, with its principal office
at 800 Connecticut Avenue, Norwalk, Connecticut 06854 (the “Company”), and Chris Soder (“Executive”).


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS, the Company and
Executive entered into an employment arrangement dated May 1, 2002, March 13,
2001 and January 4, 2000 (collectively, the “Original Employment Arrangements”)


 


WHEREAS, the
Company desires that Executive continue to be employed as the Executive Vice
President, Lodging and Vacation Packages of the Company;


 


WHEREAS, the Company and
Executive desire to replace and supercede the Original Employment Arrangements
in their entirety and enter into this agreement (the “Agreement”)
providing for the terms of his employment by the Company;


 


NOW, THEREFORE, in consideration
of the premises and mutual covenants contained herein and for other good and
valuable consideration, the parties agree as follows:


 


1.                                       Term of
Employment.  Except for earlier
termination as provided in Section 8 hereof, Executive’s employment under
this Agreement shall commence on the Effective Date and end on the second
anniversary of the Effective Date (the “Initial Employment Term”),
provided that the Initial Employment Term shall be automatically extended for
additional terms of successive one (1) year periods (each, an “Additional Employment Term”) unless the Company or Executive
gives written notice to the other at least ninety (90) days prior to the
expiration of the Initial Employment Term or then-current Additional Employment
Term that the Executive’s employment shall not be so extended.  The Initial Employment Term and each
Additional Employment Term shall be referred to herein as the “Employment Term.”


 


2.                                       Positions.  (a) Executive shall serve as Executive Vice
President, Lodging and Vacation Packages of the Company.   Executive shall also serve, if requested by
the Chief Executive Officer of the Company, as an executive officer and
director of subsidiaries and a director of Affiliates of the Company and shall
comply with the policy of the Compensation Committee of the Company’s Board of
Directors (the “Compensation Committee”) with
regard to retention or forfeiture of director’s fees.


 


(b)                                 Executive
shall report directly to the Chief Executive Officer of the Company and shall
have such duties and authority, consistent with his then position, as shall be
assigned to him from time to time by the Board of Directors (the “Board”) or the Chief Executive Officer of the Company.


 


(c)                                  During
the Employment Term, Executive shall devote substantially all of his business
time and efforts to the performance of his duties hereunder; provided, however, that Executive shall be allowed, to the
extent that such activities do not materially interfere with the performance of
his duties and responsibilities hereunder, to manage his personal financial and
legal affairs and to serve on corporate, civic, charitable industry boards or
committees.  Notwithstanding the
foregoing, the Executive shall only serve on corporate boards of directors if
approved in advance by the Chief Executive Officer of the Company.


 


3.                                       Base Salary.  During the Employment Term, the Company shall
pay Executive a base salary at the annual rate of not less than $300,000.  Base salary shall be payable in accordance
with the usual payroll practices of the Company.  Executive’s base salary shall be subject to
annual review by the Board or the Compensation Committee during the Employment
Term and may be increased, but not decreased, from time to


 





















 


time by the Board or the
Compensation Committee.  The base salary
as determined as aforesaid from time to time shall constitute “Base Salary” for purposes of this Agreement.


 


4.                                       Incentive
Compensation.  (a)  Bonus.  Executive shall be eligible to participate in
any annual bonus plan the Company may implement at any time during Executive’s
Employment Term for senior executives at a level commensurate with his
position.


 


(b)                                 Long
Term Compensation.  For each fiscal
year or portion thereof during the Employment Term, Executive shall be eligible
to participate in any long-term incentive compensation plan generally made
available to senior executives of the Company at a level commensurate with his
position in accordance with and subject to the terms of such plan.


 


(c)                                  Other
Compensation.  The Company may, upon
recommendation of the Compensation Committee, award to the Executive such other
bonuses and compensation as it deems appropriate and reasonable.


 


5.                                       Employee
Benefits and Vacation.  (a) 
During the Employment Term, Executive shall be entitled to participate
in all benefit plans and arrangements and fringe benefits and perquisite
programs generally provided to comparable senior executives of the Company.


 


(b)                                 During
the Employment Term, Executive shall be entitled to vacation each year in
accordance with the Company’s policies in effect from time to time, but in no
event less than four (4) weeks paid vacation per calendar year.  The Executive shall also be entitled to such
periods of sick leave as is customarily provided by the Company for its senior
executive employees.


 


6.                                       Business
Expenses.  The Company shall
reimburse Executive for the travel, entertainment and other business expenses
incurred by Executive in the performance of his duties hereunder, in accordance
with the Company’s policies as in effect from time to time.


 


7.                                       Termination.  (a)  The employment of Executive under this
Agreement shall terminate upon the earliest to occur of any of the following
events:


 


(i)                       the
death of the Executive;


 


(ii)                    the
termination of the Executive’s employment by the Company due to the Executive’s
Disability pursuant to Section 7(b) hereof;


 


(iii)                 the termination
of the Executive’s employment by the Executive for Good Reason pursuant to Section 7(c)
hereof;


 


(iv)                the
termination of the Executive’s employment by the Company without Cause;


 


(v)                   the
termination of employment by the Executive without Good Reason upon sixty (60)
days prior written notice; or


 


(vi)                the
termination of the Executive’s employment by the Company for Cause pursuant to Section 7(e).


 


(b)                                 Disability.  If by reason of the same or related physical
or mental illness or incapacity, the Executive is unable to carry out his
material duties pursuant to this Agreement for more than six (6) consecutive
months, the Company may terminate Executive’s employment for Disability.  Such termination shall be upon thirty (30)
days written notice by a Notice of Disability Termination, at any time
thereafter while Executive consecutively continues to be unable to carry out
his duties as a result of the same or related physical or mental illness or
incapacity.  A Termination for Disability
hereunder shall not be effective if Executive returns to the full time
performance of his material duties within such thirty (30) day period.


 


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(c)                                  Termination
for Good Reason.  A Termination for
Good Reason means a termination by Executive by written notice given within
ninety (90) days after the occurrence of the Good Reason event, unless such
circumstances are fully corrected prior to the date of termination specified in
the Notice of Termination for Good Reason (as defined in Section 7(d)
hereof).  For purposes of this Agreement,
“Good Reason” shall mean the occurrence
or failure to cause the occurrence, as the case may be, without Executive’s
express written consent, of any of the following circumstances:  (i) any
material diminution of Executive’s positions, duties or responsibilities
hereunder (except in each case in connection with the termination of Executive’s
employment for Cause or Disability or as a result of Executive’s death, or
temporarily as a result of Executive’s illness or other absence), or, the
assignment to Executive of duties or responsibilities that are inconsistent
with Executive’s then position; (ii) removal
of, or the non-reelection of, the Executive from officer positions with the
Company specified herein without election to a higher position or removal of
the Executive from any of his then officer positions; (iii) a relocation of the Company’s executive office in
Connecticut  to a location more than
thirty-five (35) miles from its current location or more than thirty-five (35)
miles further from the Executive’s residence at the time of relocation; (iv) a failure by the Company (A) to
continue any bonus plan, program or arrangement in which Executive is entitled
to participate (the “Bonus Plans”),
provided that any such Bonus Plans may be modified at the Company’s discretion
from time to time but shall be deemed terminated if (x) any such plan does not
remain substantially in the form in effect prior to such modification and (y)
if plans providing Executive with substantially similar benefits are not
substituted therefor (“Substitute Plans”),
or (B) to continue Executive as a participant in the Bonus Plans and Substitute
Plans on at least the same basis as to potential amount of the bonus as
Executive participated in prior to any change in such plans or awards, in
accordance with the Bonus Plans and the Substitute Plans; (v) any material breach by the Company of any
provision of this Agreement, including without limitation Section 12
hereof; or (vi) failure of any successor to the Company (whether direct or
indirect and whether by merger, acquisition, consolidation or otherwise) to
assume in a writing delivered to Executive upon the assignee becoming such, the
obligations of the Company hereunder.


 


(d)                                 Notice
of Termination for Good Reason.  A
Notice of Termination for Good Reason shall mean a notice that shall indicate
the specific termination provision in Section 7(c) relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for Termination for Good Reason. 
The failure by Executive to set forth in the Notice of Termination for
Good Reason any facts or circumstances which contribute to the showing of Good
Reason shall not waive any right of Executive hereunder or preclude Executive
from asserting such fact or circumstance in enforcing his rights
hereunder.  The Notice of Termination for
Good Reason shall provide for a date of termination not less than ten (10) nor
more than sixty (60) days after the date such Notice of Termination for Good
Reason is given, provided that in the case of the events set forth in Sections
7(c)(i) or (ii) or the date may be five (5) days after the giving of such
notice.


 


(e)                                  Cause.  Subject to the notification provisions of Section 7(f)
below, Executive’s employment hereunder may be terminated by the Company for
Cause.  For purposes of this Agreement,
the term “Cause” shall be limited to (i) willful misconduct by Executive
with regard to the Company which has a material adverse effect on the Company;
(ii) the willful refusal of Executive to attempt to follow the proper
written direction of the Board or a more senior officer of the Company, provided
that the foregoing refusal shall not be “Cause” if Executive in good faith
believes that such direction is illegal, unethical or immoral and promptly so
notifies the Board or the more senior officer (whichever is applicable);
(iii) substantial and continuing willful refusal by the Executive to
attempt to perform the duties required of him hereunder (other than any such
failure resulting from incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered to the Executive by the
Board or a more senior officer of the Company which specifically identifies the
manner in which it is believed that the Executive has substantially and
continually refused to attempt to perform his duties hereunder; or (iv) the Executive
being convicted of a felony (other than a felony involving a traffic violation
or as a result of vicarious liability). 
For purposes of this


 


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paragraph, no act, or
failure to act, on Executive’s part shall be considered “willful” unless done
or omitted to be done, by him not in good faith and without reasonable belief
that his action or omission was in the best interests of the Company.  A notice by the Company of a non-renewal of
the Employment Term pursuant to Section 1 hereof shall be deemed an
involuntary termination of Executive by the Company without Cause as of the end
of the then Employment Term, but Executive may terminate at any time after the
receipt of such notice and shall be treated as if he was terminated without
Cause as of such date.


 


(f)                                    Notice
of Termination for Cause.  A Notice
of Termination for Cause shall mean a notice that shall indicate the specific
termination provision in Section 7(e) relied upon and shall set forth in
reasonable detail the facts and circumstances which provide for a basis for
Termination for Cause.  Further, a
Notification for Cause shall be required to include a copy of a resolution duly
adopted by at least two-thirds (2/3) of the entire membership of the Board at a
meeting of the Board which was called for the purpose of considering such
termination and which Executive and his representative had the right to attend
and address the Board, finding that, in the good faith of the Board, Executive
engaged in conduct set forth in the definition of Cause herein and specifying
the particulars thereof in reasonable detail. 
The date of termination for a Termination for Cause shall be the date
indicated in the Notice of Termination. 
Any purported Termination for Cause which is held by a court not to have
been based on the grounds set forth in this Agreement or not to have followed
the procedures set forth in this Agreement shall be deemed a Termination by the
Company without Cause.


 


8.                                       Consequences
of Termination of Employment.


 


(a)                                  Death.  If, Executive’s employment is terminated by
reason of Executive’s death, the employment period under this Agreement shall
terminate without further obligations to the Executive’s legal representatives
under this Agreement except for:  (i) any compensation earned but not yet
paid, including and without limitation, any bonus if declared or earned but not
yet paid for a completed fiscal year, any amount of Base Salary earned but
unpaid, any accrued vacation pay payable pursuant to the Company’s policies,
and any unreimbursed business expenses payable pursuant to Section 6
(collectively “Accrued Amounts”), which amounts
shall be promptly paid in a lump sum to Executive’s estate; (ii) any other
amounts or benefits owing to the Executive under the then applicable employee
benefit plans, long term incentive plans or equity plans and programs of the
Company which shall be paid or treated in accordance with the terms of such
plans and programs; (iii) continuation, for twelve (12) months following the
date of death, of Executive’s health benefits for Executive’s dependents at the
same level and cost as if Executive was an employee of the Company; and (iv) if
a bonus plan is in place, the product of (x) the target annual bonus for the
fiscal year of Executive’s death, multiplied by (y) a fraction, the numerator
of which is the number of days of the current fiscal year during which
Executive was employed by the Company, and the denominator of which is 365,
which bonus shall be paid when bonuses for such period are paid to the other
executives.


 


(b)                                 Disability.  If Executive’s employment is terminated by
reason of Executive’s Disability, Executive shall be entitled to receive the
payments and benefits to which his representatives would be entitled in the
event of a termination of employment by reason of his death plus Executive
shall be entitled to continuation, for twelve (12) months following such
termination of employment, of group life and disability insurance benefits, as
if Executive were an active employee of the Company.


 


(c)                                  Termination
by Executive for Good Reason or Termination by the Company without Cause.  If (i) Executive terminates his employment
hereunder for Good Reason during the Employment Term or (ii) Executive’s
employment with the Company is terminated by the Company without Cause, then
Executive shall be entitled to receive, (A) over a period of twelve (12) months
after such termination (except as provided below) an amount equal to two (2)
times the sum of his Base Salary and target bonus, if any, for the year in
which such termination occurs (provided, however, in the event that the Base
Salary or target bonus, if


 


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any, has been decreased
in the twelve (12) months prior to the termination, the amount to be used shall
be the highest Base Salary and target bonus, if any, during such twelve (12)
month period); (B) any Accrued Amounts at the date of termination; (C) any
other amounts or benefits owing to Executive under the then applicable employee
benefit, long term incentive or equity plans and programs of the Company, which
shall be paid or treated in accordance with the terms of such plans and
programs; (D) continuation of the benefits (including without limitation to
health, life, and disability) as if Executive were an employee of the Company
for twelve (12) months, provided that, if such termination is after a Change in
Control, the period of benefit continuation shall be twenty-four (24) months;
and (E) if a bonus plan is in place, the product of (x) the target annual bonus
for the fiscal year of Executive’s termination, multiplied by (y) a fraction,
the numerator of which is the number of days of the current fiscal year during
which Executive was employed by the Company, and the denominator of which is
365, which bonus shall be paid when bonuses for such period are paid to the
other executives.


 


To the extent that all or any portion of the amount
payable pursuant to clause (i) or (ii) (A) of this Section 8(c) would be
subject to the additional 20% tax imposed under Section 409A of the Code
(the “409A Affected Amount”), the parties
shall negotiate in good faith an alternative arrangement that will provide
Executive with payments that are equivalent in value to the value of the 409A
Affected Amount but would not be subject to such additional 20% tax; provided,
however, that the Company may in any event at its discretion elect to
pay the 409A Affected Amount in the form of a lump sum cash payment, on the
latest possible date permitted pursuant to the “short-term deferral” exception
as promulgated in Internal Revenue Service Notice 2005-1 that would avoid such
additional 20% tax, in an amount equal to the present value of the 409A
Affected Amount on such payment date, with such present value determined based
on an interest rate equal to the Company’s then applicable cost of short-term
borrowing; provided, further, that if the Company does not elect
to pay the discounted lump sum in the preceding proviso, then the provision of
a delay in the time of payment of the 409A Affected Amount shall not be
permitted without the consent of Executive.


 


(d)                                 Termination
with Cause or Voluntary Resignation without Good Reason.  If, Executive’s employment hereunder is
terminated (i) by the Company for Cause or (ii) by Executive without Good
Reason, the Executive shall be entitled to receive only his Base Salary through
the date of termination, and any unreimbursed business expenses payable
pursuant to Section 6 and, if such termination is by Executive without
Good Reason, any bonus that has been declared or earned but not yet paid for a
completed fiscal year.  Executive’s
rights under all benefits plans and equity grants shall be determined in
accordance with the Company’s plans, programs and grants.


 


(e)                                  Determination
of Earned Bonus.  For purposes of
this Agreement, a bonus in respect of services performed in a fiscal year shall
not be considered to be earned until after the Committee and/or the Board, as
applicable, has reviewed the Company’s performance and Executive’s performance
in respect of such year and has determined the amount of the bonus, if any, to
be payable to Executive in respect of such year’s performance; provided,
however, that if the Executive is still employed by the Company as of December 31
of any year, the Executive shall be considered to have earned the bonus in
respect of services performed in such year (to the extent that the Committee
and/or the Board determine that such bonus would otherwise have been payable to
the Executive had the Executive remained employed through the relevant payment
date for such bonus) unless the Executive’s employment is subsequently
terminated by the Company for Cause or by the Executive without Good Reason.


 


9.                                       No
Mitigation; No Set-Off.  In the event
of any termination of employment hereunder, Executive shall be under no
obligation to seek other employment and there shall be no offset against any


 


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amounts due Executive
under this Agreement on account of any remuneration attributable to any
subsequent employment that Executive may obtain.  The amounts payable hereunder shall not be
subject to setoff, counterclaim, recoupment, defense or other right which the
Company may have against the Executive or others, except upon obtaining by the
Company of a final unappealable judgment against Executive.


 


10.                                 Change
in Control.    (a)  For
purposes of this Agreement, the term “Change in Control” shall mean the
occurrence of any one of the following events:


 


 (i)                                  any Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing
thirty-five percent (35%) or more of the combined voting power of the Company’s
then outstanding securities eligible to vote for the election of the Board (the
“Company Voting Securities”); provided,
however, that the event described in this paragraph (i) shall not
be deemed to be a Change in Control if such event results from the acquisition
of Company Voting Securities pursuant to a Non-Qualifying Transaction (as
defined in paragraph (iii) below);


 


(ii)                                  individuals who, on the Effective Date,
constitute the Board (the “Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board; provided,
however, that any person becoming a director subsequent to the
Effective Date, whose election or nomination for election was approved (either
by a specific vote or by approval of the proxy statement of the Company in
which such person is named as a nominee for director, without written objection
to such nomination) by a vote of at least two-thirds of the directors who were,
as of the date of such approval, Incumbent Directors, shall be an Incumbent
Director; provided, further, that
no individual initially appointed, elected or nominated as a director of the
Company as a result of an actual or threatened election contest with respect to
the election or removal of directors or as a result of any other actual or
threatened solicitation of proxies or consents by or on behalf of any person
other than the Board shall be deemed to be an Incumbent Director;


 


(iii)                               the consummation of a merger, consolidation, statutory share exchange
or similar form of corporate transaction involving (A) the Company or (B) any
of its wholly owned subsidiaries pursuant to which, in the case of this clause
(B), Company Voting Securities are issued or issuable (any event described in
the immediately preceding clause (A) or (B), a “Reorganization”) or the sale or other disposition of all or
substantially all of the assets of the Company to an entity that is not an
Affiliate of the Company (a “Sale”),
unless immediately following such Reorganization or Sale: (1) more than 50% of
the total voting power (in respect of the election of directors, or similar
officials in the case of an entity other than a corporation) of (x) the
Company (or, if the Company ceases to exist, the entity resulting from such
Reorganization), or, in the case of a Sale, the entity which has acquired all
or substantially all of the assets of the Company (in either case, the “Surviving Entity”), or (y) if
applicable, the ultimate parent entity that directly or indirectly has
Beneficial Ownership of more than 50% of the total voting power (in respect of
the election of directors, or similar officials in the case of an entity other
than a corporation) of the Surviving Entity (the “Parent Entity”), is represented by Company Voting Securities
that were outstanding immediately prior to such Reorganization or Sale (or, if
applicable, is represented by shares into which such Company Voting Securities
were converted pursuant to such Reorganization or Sale), (2) no Person is
or becomes the Beneficial Owner, directly or indirectly, of 35% or more of the
total voting power (in respect of the election of directors, or similar
officials in the case of an entity other than a corporation) of the outstanding
voting securities of the Parent Entity (or, if there is no Parent Entity, the
Surviving Entity) and (3) at least a majority of the members of the board
of directors (or similar officials in the case of an entity other than a
corporation) of the Parent Entity (or, if there is no Parent Entity, the
Surviving Entity) following the consummation of the Reorganization or Sale
were, at the time of the approval by the Board of the execution of the initial
agreement providing for such Reorganization or Sale, Incumbent Directors (any
Reorganization or Sale which satisfies all of the criteria specified in (1),
(2) and (3) above being deemed to be a “Non-Qualifying
Transaction”); or


 


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(iv)                              the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company.


 


Notwithstanding
the foregoing, (I) if any Person becomes the Beneficial Owner, directly or
indirectly, of 35% or more of the combined voting power of Company Voting
Securities solely as a result of the acquisition of Company Voting Securities
by the Company which reduces the number of Company Voting Securities
outstanding, such increased amount shall be deemed not to result in a Change in
Control; provided, however, that if such Person subsequently
becomes the Beneficial Owner, directly or indirectly, of additional Company
Voting Securities that increases the percentage of outstanding Company Voting
Securities Beneficially Owned by such Person, a Change in Control of the
Company shall then be deemed to occur and (II) the acquisition following the
Effective Date of Company Voting Securities by Hutchison Whampoa Limited,
Cheung Kong (Holdings) Limited or any of their Affiliates shall be deemed not
to result in a Change in Control until such time as Hutchison Whampoa Limited,
Cheung Kong (Holdings) Limited or any of their Affiliates become the Beneficial
Owners in the aggregate of 50% or more of the combined voting power of Company
Voting Securities (and for this purpose the preceding clause (I) shall not
apply).


 


(b)                                 For
purposes of this Agreement, the following terms shall have the following
meanings:


 


(i) “Affiliate” shall mean an
affiliate of the Company, as defined in Rule 12b-2 promulgated under Section 12
of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”);


 


(ii) “Beneficial Owner” shall have the
meaning set forth in Rule 13d-3 under the Exchange Act;


 


 (iii) “Person” shall have the meaning set forth in Section 3(a)(9)
of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (1) the Company or any of its
subsidiaries, (2) a trustee or other fiduciary holding securities under an
employee benefit plan (or related trust) sponsored or maintained by the Company
or any of its subsidiaries, (3) an underwriter temporarily holding securities
pursuant to an offering of such securities, (4) a corporation owned, directly
or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of shares of Common Stock or (5) the Executive
or any group of persons including Executive (or any entity controlled by
Executive or any group of persons including Executive).


 


11.                                 Confidential
Information.  (a) 
Executive acknowledges that as a result of his employment by the
Company, Executive will obtain confidential information as to the Company and
its affiliates and the Company and its affiliates will suffer substantial
damage, which would be difficult to ascertain, if Executive should use such
confidential information and that because of the nature of the information that
will be known to Executive it is necessary for the Company and its affiliates
to be protected by the Confidentiality restrictions set forth herein.


 


(b)                                 During
and for a period of five (5) years after the Employment Term, Executive shall
not use for his own benefit or disclose confidential information, knowledge or
data relating to the Company and its affiliates, and their respective
businesses, including any confidential information as to customers of the
Company and its affiliates obtained by Executive during his employment by the
Company and its affiliates and


 


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not (i) otherwise public
knowledge or known within the applicable industry or (ii) in connection with
performance of his duties hereunder as he deems in good faith to be necessary
or desirable.  Executive shall not, without
prior written consent of the Company, unless compelled pursuant to the order of
a court or other governmental or legal body having jurisdiction over such
matter, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it.  In the event Executive is compelled by order
of a court or other governmental or legal body to communicate or divulge any
such information, knowledge or data to anyone other than the foregoing, he
shall promptly notify the Company of any such order so it may seek a protective
order.


 


(c)                                  Upon
termination of his employment with the Company and its affiliates, or at any
time as the Company may request, Executive will promptly deliver to the
Company, as requested, all documents (whether prepared by the Company, an
affiliate, Executive or a third party) relating to the Company, an affiliate or
any of their businesses or property which he may possess or have under his
direction or control other than documents provided to Executive in his capacity
as a participant in any employee benefit plan, policy or program of the Company
or any agreement by and between Executive and the Company with regard to
Executive’s employment or severance.


 


(d)                                 In
the event of a breach or potential breach of this Section 11, Executive
acknowledges that the Company and its affiliates will be caused irreparable
injury and that money damages may not be an adequate remedy and agree that the
Company and its affiliates shall be entitled to injunctive relief (in addition
to its other remedies at law) to have the provisions of this Section 11
enforced.  It is hereby acknowledged that
the provisions of this Section 11 are for the benefit of the Company and
all of the affiliates of the Company and each such entity may enforce the
provisions of this Section 11 and only the applicable entity can waive the
rights hereunder with respect to its confidential information and employees.


 


12.                                 Indemnification.
The Company shall indemnify and hold harmless Executive to the fullest extent
permitted by law for any action or inaction of Executive while serving as an
officer and director of the Company or, at the Company’s request, as an officer
or director of any other entity or as a fiduciary of any benefit plan.  The Company shall cover the Executive under
directors and officers liability insurance both during and, while potential
liability exists, after the Employment Term in the same amount and to the same
extent as the Company covers its other officers and directors.


 


13.                                 Legal
Fees.


 


(a)                                  The
Company shall pay the Executive’s reasonable legal fees and costs associated
with entering into this Agreement.


 


(b)                                 All
disputes and controversies arising under or in connection with this Agreement,
other than the seeking of injunctive or other equitable relief pursuant to Section 11
hereof, shall be settled by arbitration conducted before a panel of three (3)
arbitrators sitting in New York City, New York, or such other location agreed
by the parties hereto, in accordance with the rules for expedited resolution of
commercial disputes of the American Arbitration Association then in
effect.  The determination of the
majority of the arbitrators shall be final and binding on the parties.  Judgment may be entered on the award of the
arbitrator in any court having proper jurisdiction.  All expenses of such arbitration, including
the fees and expenses of the counsel of the Executive, shall be borne by the
Company unless the arbitrators determine that Executive’s position was overall
frivolous or otherwise taken in bad faith, in which case the arbitrators may
determine that Executive shall bear his own legal fees.


 


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(c)                                  In
the event after a Change in Control either party files for arbitration to resolve
any dispute as to whether a termination is for Cause or Good Reason, until such
dispute is determined by the arbitrators, the Executive shall continue to be
treated economically and benefit wise in the manner asserted by him in the
arbitration effective as of the date of the filing of the arbitration, subject
to the Executive promptly refunding any amounts paid to him, paying the cost of
any benefits provided to him and paying to the Company the profits in any stock
option or other equity awards exercised or otherwise realized by him during the
pendency of the arbitration which he is ultimately held not to be entitled to;
provided the arbitrators may terminate such payments and benefits in the event
that they determine at any point that the Executive is intentionally delaying
conclusion of the arbitration.


 


14.                                 Reserved.


 


15.                                 Certain
Additional Payments by the Company.


 


(a)                                  Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, award, benefit or distribution (or any
acceleration of any payment, award, benefit or distribution) by the Company (or
any of its affiliated entities) or any entity which effectuates a Change in
Control (or any of its affiliated entities) to or for the benefit of Executive
(whether pursuant to the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under this Section 15)
(the “Payments”) would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (the “Code”), or any interest or
penalties are incurred by Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”),
then the Company shall pay to Executive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by
Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the sum
of (x) the Excise Tax imposed upon the Payments and (y) the product
of any deductions disallowed because of the inclusion of the Gross-up Payment
in Executive’s adjusted gross income and the highest applicable marginal rate
of federal income taxation for the calendar year in which the Gross-up Payment
is to be made.  For purposes of
determining the amount of the Gross-up Payment, the Executive shall be deemed
to (i) pay federal income taxes at the highest marginal rates of federal
income taxation for the calendar year in which the Gross-up Payment is to be
made, and (ii) pay applicable state and local income taxes at the highest
marginal rate of taxation for the calendar year in which the Gross-up Payment
is to be made, net of the maximum reduction in federal income taxes which could
be obtained from deduction of such state and local taxes.  Notwithstanding the foregoing provisions of
this Section 15(a), if it shall be determined that Executive is entitled
to a Gross-Up Payment, but that the Payments would not be subject to the Excise
Tax if the Payments were reduced by an amount that is less than 5% of the
portion of the Payments that would be treated as “parachute payments” under Section 280G
of the Code, then the amounts payable to Executive under this Agreement shall
be reduced (but not below zero) to the maximum amount that could be paid to
Executive without giving rise to the Excise Tax (the “Safe Harbor
Cap”), and no Gross-Up Payment shall be made to Executive.  The reduction of the amounts payable
hereunder, if applicable, shall be made by reducing first the payments under Section 15,
unless an alternative method of reduction is elected by Executive.  For purposes of reducing the Payments to the
Safe Harbor Cap, only amounts payable under this Agreement (and no other
Payments) shall be reduced.  If the
reduction of the amounts payable hereunder would not result in a reduction of
the Payments to the Safe Harbor Cap, no amounts payable under this Agreement
shall be reduced pursuant to this provision.


 


(b)                                 Subject to
the provisions of Section 15(a), all determinations required to be made
under this Section 15, including whether and when a Gross-Up Payment is
required, the amount of such Gross-Up Payment, the reduction of the Payments to
the Safe Harbor Cap and the assumptions to be utilized in arriving at such
determinations, shall be made by the public accounting firm that is retained by
the Company as


 


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of the date immediately
prior to the Change in Control (the “Accounting Firm”)
which shall provide detailed supporting calculations both to the Company and
Executive within fifteen (15) business days of the receipt of notice from
the Company or the Executive that there has been a Payment, or such earlier
time as is requested by the Company (collectively, the “Determination”).  In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, Executive may appoint another nationally recognized
public accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder).  All fees and expenses of the
Accounting Firm shall be borne solely by the Company and the Company shall
enter into any agreement requested by the Accounting Firm in connection with
the performance of the services hereunder. 
The Gross-up Payment under this Section 15 with respect to any
Payments shall be made no later than thirty (30) days following such
Payment.  If the Accounting Firm
determines that no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion to such effect, and to the effect that failure
to report the Excise Tax, if any, on Executive’s applicable federal income tax
return will not result in the imposition of a negligence or similar
penalty.  In the event the Accounting
Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall
furnish Executive with a written opinion to such effect.  The Determination by the Accounting Firm
shall be binding upon the Company and Executive.  As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the Determination,
it is possible that Gross-up Payments which will not have been made by the
Company should have been made (“Underpayment”)
or Gross-up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to
be made hereunder.  In the event that the
Executive thereafter is required to make payment of any Excise Tax or
additional Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall
be promptly paid by the Company to or for the benefit of Executive.  In the event the amount of the Gross-up
Payment exceeds the amount necessary to reimburse the Executive for his Excise
Tax, the Accounting Firm shall determine the amount of the Overpayment that has
been made and any such Overpayment (together with interest at the rate provided
in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to
the extent he has received a refund if the applicable Excise Tax has been paid
to the Internal Revenue Service) to or for the benefit of the Company;
provided, however, that such repayment obligation shall not apply to the extent
it would be treated as a prohibited personal loan from the Company to Executive
for purposes of the Sarbanes-Oxley Act of 2002. 
Executive shall cooperate, to the extent his expenses are reimbursed by
the Company, with any reasonable requests by the Company in connection with any
contests or disputes with the Internal Revenue Service in connection with the
Excise Tax.


 


16.                                 Miscellaneous.


 


(a)                                  Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
without reference to principles of conflict of laws.


 


(b)                                 Entire
Agreement/Amendments.  This Agreement
and the instruments contemplated herein, contain the entire understanding of
the parties with respect to the employment of Executive by the Company from and
after the Commencement Date and supersedes any prior agreements between the
Company and Executive.  There are no
restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. 
This Agreement may not be altered, modified, or amended except by
written instrument signed by the parties hereto.


 


(c)                                  No
Waiver.  The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion
shall not be considered a waiver of such party’s rights or deprive such party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.  Any such


 


10





















 


waiver must be in writing
and signed by Executive or an authorized officer of the Company, as the case
may be.


 


(d)                                 Assignment.  This Agreement shall not be assignable by
Executive.  This Agreement shall be
assignable by the Company only to an acquirer of all or substantially all of
the assets of the Company, provided such acquirer promptly assumes all of the
obligations hereunder of the Company in a writing delivered to the Executive
and otherwise complies with the provisions hereof with regard to such
assumption.


 


(e)                                  Successors;
Binding Agreement; Third Party Beneficiaries.  This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees legatees and
permitted assignees of the parties hereto.


 


(f)                                    Communications.  For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given (i) when faxed or delivered, or
(ii) two (2) business days after being mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the initial page of this Agreement, provided
that all notices to the Company shall be directed to the attention of the
Secretary of the Company, or to such other address as any party may have
furnished to the other in writing in accordance herewith.  Notice of change of address shall be
effective only upon receipt.


 


(g)                                 Withholding
Taxes.  The Company may withhold from
any and all amounts payable under this Agreement such Federal, state and local
taxes as may be required to be withheld pursuant to any applicable law or
regulation.


 


(h)                                 Survivorship.  The respective rights and obligations of the
parties hereunder, including without limitation Section 11 hereof, shall
survive any termination of Executive’s employment to the extent necessary to
the agreed preservation of such rights and obligations.


 


(i)                                     Counterparts.  This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.


 


(j)                                     Headings.  The headings of the sections contained in
this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement.


 


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IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above written.


 


 


	
   

  	
  Priceline.com
  Incorporated

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffery H.
  Boyd

  	
   

  
	
   

  	
   

  	
  Jeffery H. Boyd

  
	
   

  	
   

  	
  Chief Executive
  Officer

  
	
   

  	
   

  	
  Priceline.com
  Incorporated

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Chris Soder

  	
   

  
	
   

  	
   

  	
  Chris Soder

  



 


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