Exhibit 10.54


 


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
Peter J. Millones (“Executive”).


 


W I T N E S S E T H:


 


WHEREAS,
the Company and Executive entered into an employment agreement, dated February 8,
2006 (the “Prior Employment Agreement”);


 


WHEREAS,
the Company desires that Executive continue to be employed as Executive Vice
President, General Counsel and Corporate Secretary 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 7 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 February 8, 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 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, General Counsel and Corporate Secretary of
the Company’s Board of Directors.  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 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. During the Employment Term, the Company shall pay Executive a base
salary at the annual rate of not less than $330,000.  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;


 


(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).


 


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(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.


 


(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


 


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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 Notice
of Termination 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,
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
were 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 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.


 


(b)                                 Disability.  Subject to Section 8(f), if Executive’s
employment is terminated by reason of Executive’s Disability, Executive shall
be entitled to receive the payments and benefits to which


 


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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.  (i)  Subject to Section 8(f), 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, then 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 (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 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 and disability) for a period of twelve (12) months as if Executive
were an employee of the Company, 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 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.  If, Executive’s employment hereunder is
terminated (i) by the Company for Cause or (ii) by Executive


 


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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)                                  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
Executive is still employed by the Company as of December 31 of any year,
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 Executive had
Executive remained employed through the relevant payment date for such bonus)
unless Executive’s employment is subsequently terminated by the Company for
Cause or by Executive without Good Reason.


 


(f)                                    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(f)); (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 the Company’s
obtaining 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


 


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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


 


(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.


 


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(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 of the Company 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


 


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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.


 


(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.


 


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(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.


 


(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.                                 Reserved.


 


15.                                 Certain
Additional Payments by the Company.


 


(a)                                  Subject
to Section 8(f), 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


 


10

















 


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 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


 


11

















 


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 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, but not limited to, 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 


 


12

















 


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
(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/ Peter J.
  Millones

  
	
   

  	
   

  	
  Peter J.
  Millones

  



 


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AMENDED
AND RESTATED EMPLOYMENT AGREEMENT


 


BY AND BETWEEN


 


 


PRICELINE.COM
INCORPORATED


 


AND


 


PETER J. MILLONES


 


 


DECEMBER 18, 2008