Exhibit 10.53


 


AMENDED
AND RESTATED

EMPLOYMENT AGREEMENT


 


AMENDED AND
RESTATED EMPLOYMENT AGREEMENT, dated as of December 18, 2008 (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
Robert Mylod (“Executive”).


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS,
the Company and Executive entered into an employment agreement, dated November 20,
2000 (the “Prior Employment Agreement”);


 


WHEREAS,
the Company desires that Executive be employed as Vice Chairman and Head of
Worldwide Strategy and Planning of the Company, and the Company and Executive
desire to amend the Prior Employment Agreement to account for the effect of Section 409A
of the Internal Revenue Code of 1986, as amended (“Section 409A of the Code”) on the agreement; and


 


WHEREAS,
the Company and Executive desire to replace and supersede the Prior Employment
Agreement in its entirety and enter into this Amended and Restated Employment
Agreement (the “Agreement”) providing for the
terms of Executive’s 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
continue on the same basis as set forth in the Prior Employment Agreement and,
as a result, shall end on November 20, 2009 (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 Executive’s employment hereunder
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 the Vice Chairman and Head of Worldwide Strategy and Planning 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 associated companies 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 of the Company (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 and industry boards or committees.  Notwithstanding the foregoing, Executive


 

















 


shall only serve on
corporate boards of directors if approved in advance by the Chief Executive
Officer of the Company.


 


3.             Base Salary.  Commencing on the Effective Date and
continuing during the remainder of the Employment Term, the Company shall pay
Executive a base salary at the annual rate of not less than $420,000.  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 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.  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; provided,
however, that such expenses must
be paid no later than the last day of the calendar year following the calendar
year in which such expenses were incurred and further
provided that in no event will the amount of expenses so reimbursed
in one taxable year affect the amount of expenses eligible for reimbursement in
any other taxable year.


 


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 Executive;


 


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


 


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


 


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


 


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


 


(vi)     the termination of 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, 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 (“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.


 


(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, Executive from officer positions with the Company specified
herein without election to a higher position or removal of 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 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), the date may be five (5) days
after the giving of such notice.


 


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(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 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 Executive by the Board or a more senior
officer of the Company which specifically identifies the manner in which it is
believed that Executive has substantially and continually refused to attempt to
perform his duties hereunder; or (iv) 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 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 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 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
of Executive’s health benefits for Executive’s dependents at the same level and
cost as if Executive were an employee of the Company for twelve (12) months;
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 in a lump sum when bonuses for such
period are 


 


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paid to the Company’s
other executives, but, in any event, in the fiscal year following the fiscal
year in which such bonus is earned.


 


(b)           Disability.  Subject to Section 8(e), 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, to the extent not duplicative of the foregoing, Executive shall be
entitled to the continuation of benefits (including, without limitation,
health, life, disability and pension) for a period of twelve (12) months
following such termination of employment as if Executive had been an employee
of the Company.


 


(c)           Termination by Executive for Good Reason
or Termination by the Company without Cause.  (i)  Subject to Section 8(e), if
Executive terminates his employment hereunder for Good Reason during the Employment
Term or Executive’s employment with the Company is terminated by the Company
without Cause, Executive shall be entitled to receive (A) in equal
installments paid in accordance with the Company’s normal payroll practices
commencing with the first pay period after such termination over a period of
twelve (12) months after such termination 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 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
benefits (including, without limitation, health, life, disability and pension)
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, subject to the terms set forth in Section 8(c)(ii); 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 in a lump sum when bonuses for such period are
paid to the Company’s other executives, but, in any event, in the fiscal year
following the fiscal year in which such bonus is earned.


 


(ii)           With respect to the continuation of group health benefits to Executive
in connection with Executive’s termination of employment after a Change in
Control pursuant to Section 8(c)(i)(D), Executive shall pay the full cost
for such group health coverage on an after-tax basis for each month that
Executive elects to retain such coverage by payment of the monthly cost of such
coverage as determined for purposes of health care continuation under Section 4980B
of the Internal Revenue Code of 1986, as amended (the “COBRA Premium”).  Within five (5) business days of the
date of Executive’s termination of employment, the Company shall make a payment
to Executive equal to the number of full and partial months remaining in the
calendar year in which Executive’s employment is terminated, multiplied by the
difference between the COBRA Premium for such year and the monthly amount that
Executive was required to pay for group health coverage immediately prior to
his termination of employment.  On each January 2
thereafter until the end of the twenty-four (24) month period, if Executive has
maintained group health coverage through the last day of the preceding calendar
year, the Company shall make a payment to Executive equal to the difference
between the COBRA Premium and the monthly amount that Executive was required to
pay for group health coverage immediately prior to his termination of
employment, multiplied by 12, or, if the period of coverage is for less than a
year, by the number of full and partial months remaining in the year until the
end of the twenty-four (24) month period. 
Notwithstanding the foregoing, the first 18 months following the
date of  Executive’s termination of
employment shall be considered to be the period during which Executive shall be
eligible for 


 


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continuation coverage under Section 4980B
of the Internal Revenue Code of 1986, as amended (the “Code”).


 


(d)           Termination with Cause or Voluntary
Resignation without Good Reason or Retirement.  If, Executive’s employment hereunder is
terminated (i) by the Company for Cause or (ii) by Executive without
Good Reason, 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)           Separation from
Service.  Notwithstanding anything in this Agreement to
the contrary, if Executive is a “specified employee” (within the meaning of Section 409A
of the Code) and any payment made pursuant to this Section 8 is considered
to be a “deferral of compensation” (as such phrase is defined for purposes of Section 409A
of the Code) that is payable upon Executive’s “separation from service” (within
the meaning of Section 409A of the Code), then the payment date for such
payment shall be the date that is the first day of the seventh month after the
date of Executive’s “separation from service” with the Company (determined in
accordance with Section 409A of the Code). 
In addition, if the event triggering Executive’s right to benefits or
payments hereunder is Executive’s termination of employment, but such
termination of employment does not constitute a “separation from service” with
the Company within the meaning of Section 409A of the Code, then the
benefits or payments hereunder payable by reason of such termination of
employment that are considered to be a “deferral of compensation” under Section 409A
of the Code shall not be paid upon such termination of employment, but instead,
shall remain an obligation of the Company to Executive and shall be paid or
provided to Executive upon the first to occur of the following events: (i) Executive’s
“separation from service” (within the meaning of Section 409A of the Code)
(any amount payable upon such “separation from service” being subject to the
first sentence of this Section 8(e)); (ii) Executive’s disability
(within the meaning of Section 409A of the Code); (iii) a “change of
control” of the Company (within the meaning of Section 409A of the Code);
or (iv) Executive’s death.


 


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 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 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 


 


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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


 


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


 


Notwithstanding
the foregoing, 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 to a percentage equal to or
greater than 35, a Change in Control of the Company shall then be deemed to
occur.


 


(b)           For purposes of this Section 10, 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”);


 


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(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) 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.  For purposes of this Agreement, “Confidential Information” means information, observations
and data concerning the business or affairs of the Company and its subsidiaries
and Affiliates, including, without limitation, all business information
(whether or not in written form) which relates to the Company, its subsidiaries
or Affiliates, or their customers, suppliers or contractors or any other third
parties in respect of which the Company or its subsidiaries or Affiliates has a
business relationship or owes a duty of confidentiality, or their respective
businesses or products, and which is not known to the public generally other
than as a result of Executive’s breach of this Agreement, including but not
limited to:  technical information or
reports; trade secrets; unwritten knowledge and “know-how”; operating
instructions; training manuals; customer lists; customer buying records and
habits; product sales records and documents, and product development, marketing
and sales strategies; market surveys; marketing plans; profitability analyses;
product cost; long-range plans; information relating to pricing, competitive
strategies and new product development; information relating to any forms of
compensation or other personnel-related information; contracts; and supplier
lists.  Confidential Information will not
include (i) such information known to Executive prior to Executive’s
involvement with the Company or its subsidiaries or Affiliates or information
obtained from a third party (other than pursuant to a breach by Executive of
this Agreement) or (ii) contact information contained in Executive’s
personal rolodex or electronic address book.


 


(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 obtained by Executive during his employment
by the Company and its Affiliates and 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 Confidential Information 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 Confidential Information to anyone other than the foregoing, he shall
promptly notify the Company of any such order so it may seek a protective
order.


 


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(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 or could 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 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 Executive’s reasonable legal fees and costs associated with
entering into this Agreement.  All
payments by the Company of the legal fees of Executive under this Section 13(a) shall
be for expenses incurred during Executive’s lifetime and shall be made within
ninety (90) days following the date Executive submits evidence of the
incurrence of such expenses, and in all events prior to the last day of the
calendar year following the calendar year in which Executive incurs the
expense.  In no event will the amount of
expenses reimbursed or paid in one year affect the amount of expenses eligible
for reimbursement, or payment to, or for Executive in any other taxable year.


 


(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. 
The Company shall promptly pay all expenses of such arbitration,
including the fees and expenses of the counsel of Executive.  If the arbitrators determine that Executive’s
position was overall frivolous or otherwise taken in bad faith, the arbitrators
may determine that Executive be required to reimburse the Company for his own
legal fees.  All reimbursements or
payments by the Company of the legal fees of Executive under this Section 13(b) shall
be for expenses incurred during Executive’s lifetime and shall be made within
ninety (90) days following the date Executive submits evidence of the
incurrence of such expenses, and in all events prior to the last day of the
calendar year following the calendar year in which Executive incurs the
expense.  In no event will the amount of
expenses reimbursed or paid in one year affect the amount of expenses eligible
for reimbursement, or payment to, or for Executive in any other taxable year.


 


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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, 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 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 Executive is intentionally
delaying conclusion of the arbitration.


 


14.           Non-Solicitation/Non-Disparagement. Commencing on the date of Executive’s
cessation of employment with the Company and continuing for twelve (12) months
thereafter, (a) Executive shall not (whether for Executive’s own account
or on behalf of any person, corporation, partnership, or other business entity,
and whether directly or indirectly) solicit or endeavor to entice away from the
Company or any subsidiary or affiliate, any employee or group of employees
thereof provided, however, that the general advertisement for employees or the
general solicitation of employees by a recruiter shall not be deemed a
violation of this Section 14 neither Executive nor the Company shall
publicly or with the intent to become public make any statements, written or
oral, which disparage or defame the goodwill or reputation of, in Executive’s
case, the Company formally or, its directors or senior officers or, in the
Company’s case, Executive.


 


15.           Certain Additional Payments by the
Company.


 


(a)           Subject to Section 8(e),
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 Affiliates) or any entity which effectuates a Change in Control (or
any of its Affiliates) 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 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, Executive shall be
deemed to (i) pay federal income taxes at the highest actual marginal
rates of federal income taxation applicable to Executive 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 actual marginal rate of taxation
applicable to Executive 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 


 


10

















 


hereunder, if
applicable, shall be made by reducing the payments under Section 8(c)(i) in
the following order: first, the payments under clause (A), second, the payments
under clause (E), and third, all other payments ratably.  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 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 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.  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
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 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.  Notwithstanding any other
provision of this Section 15 to the contrary, all taxes and expenses
described in this Section 15 shall be paid or reimbursed within fifteen
(15) days after the determination thereof pursuant to the terms of this Section 15
or after Executive submits evidence of the incurrence of such taxes and/or
expenses.  Executive shall be required to
submit all requests for reimbursements no later than ninety (90) days prior to
the last day of the calendar year following the calendar year in which the
applicable taxes are remitted or, in the case of reimbursement of expenses
incurred due to a tax audit or litigation with respect to which there is no
remittance of taxes, the last day of the calendar year following the calendar
year in which the audit is completed or there is a final and nonappealable 


 


11

















 


settlement or other resolution of the
litigation in accordance with Treasury Regulation Section 1.409A-3(i)(v).  Any expenses, including interest and penalties
assessed on the taxes described in this Section 15, incurred by Executive
shall be reimbursed promptly after Executive submits evidence of the incurrence
of such expenses, which reimbursement in no event will be later than the last
day of the calendar year following the calendar year in which Executive incurs
the expense.


 


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
Effective Date and supersedes any prior agreements between the Company and
Executive, including the Prior Employment Agreement.  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 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 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.


 


12

















 


(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
(including via facsimile), 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.


 


(k)           Section 409A
of the Code.  Each payment or
reimbursement and the provision of each benefit under this Agreement shall be
considered a separate payment and not one of a series of payments for purposes
of Section 409A of the Code. 
Furthermore, in the event that any payment made hereunder is subject to
payment during a specified time frame (e.g.,
within 90 days of a termination of employment) as opposed to payment on a
specific payment date (e.g., January 1,
2010), the Company, in its sole discretion, shall determine the exact date upon
which such payment will be made during the specified payment period.  To
the extent applicable, it is intended that this Agreement comply with the
provisions of Section 409A of the Code so that the income inclusion
provisions of Section 409A(a)(1) do not apply to Executive.  This Agreement shall be administered in a
manner consistent with this intent. 
Reference to Section 409A of the Code is to Section 409A of
the Internal Revenue Code of 1986, as amended, and will also include any
regulations, or any other formal guidance, promulgated with respect to such Section by
the U.S. Department of the Treasury or the Internal Revenue Service.


 


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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/ Robert Mylod

  
	
   

  	
   

  	
  Robert Mylod

  



 


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AMENDED
AND RESTATED EMPLOYMENT AGREEMENT


 


BY AND BETWEEN


 


 


PRICELINE.COM
INCORPORATED


 


AND


 


ROBERT MYLOD


 


 


DECEMBER 18, 2008