Exhibit 10.55
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 Chris Soder (“ Executive
”).
W
I
T N E S S E T
H :
WHEREAS , the Company and Executive entered into an
employment agreement, dated February 7, 2005 (the “
Prior Employment Agreement ”);
WHEREAS , the Company desires that Executive be employed
as President, North American Travel 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 be on the same basis as set forth in the
Prior Employment Agreement and, as a result, shall end on
February 7, 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
President, North American Travel of the Company. Executive
shall also serve, if requested by the Chief Executive Officer of
the Company, as an executive officer and director of subsidiaries
and a director of Affiliates of the Company and shall comply with
the policy of the Compensation Committee of the Company’s
Board of Directors (the “ Compensation Committee
”) with regard to retention or forfeiture of director’s
fees.
(b)
Executive shall report directly to the Chief Executive Officer of
the Company and shall have such duties and authority, consistent
with his then position, as shall be assigned to him from time to
time by the Board of Directors 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 (“
Disabilit y”). 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 fisc
