Exhibit 10.82
EMPLOYMENT
AGREEMENT
BY AND
BETWEEN
PRICELINE.COM
INCORPORATED
AND
JEFFERY H.
BOYD
FEBRUARY 7,
2005
EMPLOYMENT
AGREEMENT
EMPLOYMENT
AGREEMENT, dated as of February 7, 2005 (the “
Effective Date
”), by and between Priceline.com Incorporated, a Delaware
corporation, with its principal office at 800 Connecticut Avenue,
Norwalk, Connecticut 06854 (the “ Company ”), and Jeffery H.
Boyd (“ Executive ”).
W I T N E S S E T H
:
WHEREAS , the
Company and Executive entered into an employment arrangement, dated
December 30, 1999, which was amended on August 21, 2000, amended
and restated on November 20, 2000 and further amended on December
20, 2001 (collectively, the “ Original Employment Agreement
”);
WHEREAS , the
Company desires that Executive continue to be employed as President
and Chief Executive Officer of the Company; and
WHEREAS , the
Company and Executive desire to replace and supersede the Original
Employment Agreement in its entirety and enter into this agreement
(the “ Agreement ”) providing for
the terms of his employment by the Company.
NOW, THEREFORE , in
consideration of the premises and mutual covenants contained herein
and for other good and valuable consideration, the parties agree as
follows:
1 .
Term of Employment . Except for earlier termination as
provided in Section 8 hereof, Executive’s employment under
this Agreement shall commence on the Effective Date and end on the
second anniversary of the Effective Date (the “
Initial Employment
Term ”), provided that the Initial Employment Term
shall be automatically extended for additional terms of successive
one (1) year periods (each, an “ Additional Employment Term ”)
unless the Company or Executive gives written notice to the other
at least ninety (90) days prior to the expiration of the Initial
Employment Term or then-current Additional Employment Term that the
Executive’s employment shall not be so extended. The
Initial Employment Term and each Additional Employment Term shall
be referred to herein as the “ Employment Term .”
2 .
Positions . (a) Executive shall serve as President and
Chief Executive Officer of the Company. Executive shall also
serve, if requested by the Board of Directors of the Company (the
“ Board
”), 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 Board (the “
Compensation
Committee ”) with regard to retention or
forfeiture of director’s fees. Executive shall serve
during the Employment Term as a member of the Board. Upon
termination of Executive’s employment with the Company,
Executive shall resign from the Board and any committees thereof
(and, if applicable, from the board of directors (and any
committees thereof) of any subsidiary or Affiliate of the Company)
to the extent Executive is then serving thereon.
(b)
Executive shall report directly to the Board 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.
(c)
During the Employment Term, Executive shall devote substantially
all of his business time and efforts to the performance of his
duties hereunder; provided,
however , that Executive shall be allowed, to the extent
that such activities do not materially interfere with the
performance of his duties and responsibilities hereunder, to manage
his personal financial and legal affairs and to serve on corporate,
civic, charitable industry boards or committees.
Notwithstanding the foregoing, the Executive shall only serve on
corporate boards of directors if approved in advance by the
Board.
3 .
Base Salary . During the Employment Term, the Company shall
pay Executive a base salary at the annual rate of not less than
$400,000. 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)
May 25, 2001 Stock Option Grant . On May 25, 2001,
Executive was granted by the Company, pursuant to the
Company’s 1999 Omnibus Plan, as amended (the “
1999 Plan ”)
stock options to purchase 266,666 (after giving effect to the
Company’s June 2003 one-for-six reverse stock split) shares
of the Company’s issued and outstanding common stock (the
“ Common Stock
”), at an exercise price per share of $30.66 (the “
May 2001 Stock
Options ”). As of the date hereof, the May
2001 Stock Options are fully vested and exercisable. The May
2001 Stock Options shall expire on the earlier of (i) May, 25, 2011
or (ii)(A) eighteen (18) months after any termination of employment
if such termination is as of the result of Executive’s death,
Termination for Disability, Termination without Cause, Termination
for Good Reason or non-extension of the Employment Term in
accordance with Section 1 hereof as a result of notice from the
Company, and (B) ninety (90) days after such termination if such
termination is a result of Executive’s Termination for Cause,
voluntary Termination by Executive without Good Reason, or
non-extension of the Employment Term in accordance with Section 1
hereof as a result of notice by Executive.
(d)
Other Compensation . The Company may, upon
recommendation of the Compensation Committee, award to the
Executive such other bonuses and compensation as it deems
appropriate and reasonable.
5 .
[Intentionally Deleted.]
6 .
Employee Benefits and Vacation . (a) During the
Employment Term, Executive shall be entitled to participate in all
benefit plans and arrangements and fringe benefits and perquisite
programs generally provided to comparable senior executives of the
Company.
(b)
During the Employment Term, Executive shall be entitled to vacation
each year in accordance with the Company’s policies in effect
from time to time, but in no event less than four (4) weeks paid
vacation per calendar year. The Executive shall also be
entitled to such periods of sick leave as is customarily provided
by the Company for its senior executive employees.
7 .
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.
8.
Termination . (a) The employment of Executive
under this Agreement shall terminate upon the earliest to occur of
any of the following events:
(i)
the death of the Executive;
(ii)
the termination of the Executive’s employment by the Company
due to the Executive’s Disability pursuant to Section 8(b)
hereof;
(iii)
the termination of the Executive’s employment by the
Executive for Good Reason pursuant to Section 8(c) hereof;
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(iv)
the termination of the Executive’s employment by the Company
without Cause;
(v)
the termination of employment by the Executive without Good Reason
upon sixty (60) days prior written notice; or
(vi)
the termination of the Executive’s employment by the Company
for Cause pursuant to Section 8(e).
(b)
Disability . If by reason of the same or related
physical or mental illness or incapacity, the Executive is
unable to carry out his material duties pursuant to this Agreement
for more than six (6) consecutive months, the Company may terminate
Executive’s employment for Disability. Such termination
shall be upon thirty (30) days written notice by a Notice of
Disability Termination, at any time thereafter while Executive
consecutively continues to be unable to carry out his duties as a
result of the same or related physical or mental illness or
incapacity. A Termination for Disability hereunder shall not
be effective if Executive returns to the full time performance of
his material duties within such thirty (30) day period.
(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 8(d) hereof). For purposes
of this Agreement, “ Good
Reason ” shall mean the occurrence or failure to
cause the occurrence, as the case may be, without Executive’s
express written consent, of any of the following
circumstances: (i) any material diminution of
Executive’s positions, duties or responsibilities hereunder
(except in each case in connection with the termination of
Executive’s employment for Cause or Disability or as a result
of Executive’s death, or temporarily as a result of
Executive’s illness or other absence), or, the assignment to
Executive of duties or responsibilities that are inconsistent with
Executive’s then position; (ii) removal of, or the
non-reelection of, the Executive from officer positions with the
Company specified herein without election to a higher position or
removal of the Executive from any of his then officer positions;
(iii) a relocation of the Company’s executive office in
Connecticut to a location more than thirty-five (35) miles
from its current location or more than thirty-five (35) miles
further from the Executive’s residence at the time of
relocation; (iv) a failure by the Company (A) to continue
any bonus plan, program or arrangement in which Executive is
entitled to participate (the “ Bonus Plans ”), provided that
any such Bonus Plans may be modified at the Company’s
discretion from time to time but shall be deemed terminated if (x)
any such plan does not remain substantially in the form in effect
prior to such modification and (y) if plans providing Executive
with substantially similar benefits are not substituted therefor
(“ Substitute
Plans ”), or (B) to continue Executive as a
participant in the Bonus Plans and Substitute Plans on at least the
same basis as to potential amount of the bonus as Executive
participated in prior to any change in such plans or awards, in
accordance with the Bonus Plans and the Substitute Plans;
(v) any material breach by the Company of any provision of
this Agreement, including without limitation Section 13 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 8(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
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the case of the events
set forth in Sections 8(c)(i) or (ii) or the date may be five (5)
days after the giving of such notice.
(e)
Cause . Subject to the notification provisions of
Section 8(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, 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; (iii) substantial and
continuing willful refusal by the Executive to attempt to perform
the duties required of him hereunder (other than any such failure
resulting from incapacity due to physical or mental illness) after
a written demand for substantial performance is delivered to the
Executive by the Board which specifically identifies the manner in
which it is believed that the Executive has substantially and
continually refused to attempt to perform his duties hereunder; or
(iv) the Executive being convicted of a felony (other than a felony
involving a traffic violation or as a result of vicarious
liability). For purposes of this 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 8(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.
9.
Consequences of Termination of Employment .
(a)
Death . If, Executive’s employment is terminated
by reason of Executive’s death, the employment period under
this Agreement shall terminate without further obligations to the
Executive’s legal representatives under this Agreement except
for: (i) any compensation earned but not yet paid,
including and without limitation, any bonus if declared or earned
but not yet paid for a completed fiscal year, any amount of Base
Salary earned but unpaid, any accrued vacation pay payable pursuant
to the Company’s policies, and any unreimbursed business
expenses payable pursuant to Section 7 (collectively “
Accrued Amounts
”), which amounts shall be promptly paid in a lump sum to
Executive’s estate; (ii) any other amounts or benefits owing
to the Executive under the then applicable employee benefit plans,
long term incentive plans or equity plans and programs of the
Company which shall be paid or treated in accordance with Section
4(c) hereof with regard to the May 2001 Stock Options and otherwise
in accordance with the terms of such plans and programs; (iii)
continuation, for twelve (12) months following the date of death,
of Executive’s health benefits for Executive’s
dependents at the same level and cost as if Executive was an
employee of the Company; and (iv) if a bonus plan is in place, the
product of (x) the target annual bonus for the fiscal year of
Executive’s death, multiplied by (y) a fraction, the
numerator of which is the number of days of the current fiscal year
during which Executive
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was employed by the
Company, and the denominator of which is 365, which bonus shall be
paid when bonuses for such period are paid to the other
executives.
(b)
Disability . If Executive’s employment is
terminated by reason of Executive’s Disability, Executive
shall be entitled to receive the payments and benefits to which his
representatives would be entitled in the event of a termination of
employment by reason of his death plus Executive shall be entitled
to continuation, for twelve (12) months following such termination
of employment, of group life and disability insurance benefits as
if Executive was an active employee of the Company.
(c)
Termination by Executive for Good Reason or Termination by the
Company without Cause . 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:
(i) if such
termination occurs on a date that does not fall within the
Protection Period (as defined below), Executive shall be entitled
to receive, (A) over a period of twenty-four (24) 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 Section
4(c) hereof with regard to the May 2001 Stock Options and otherwise
in accordance with the terms of such plans and programs, except
that (1) the portion of each outstanding option to acquire shares
of Common Stock held by Executive that would have otherwise vested
with the passage of time during the one-year period immediately
following the Executive’s termination of employment had the
Executive remained employed with the Company during such one-year
period shall be treated as immediately vested as of the date of
such termination, (2) each outstanding vested option to acquire
shares of Common Stock held by Executive as of the date of such
termination (taking into account the additional vesting described
in the preceding clause (1)) shall remain exercisable until the
earlier of (x) the expiration of such option’s original term
or (y) 18 months following the date of termination and (3) with
respect to each outstanding grant of shares of restricted Common
Stock held by Executive, such grant shall be deemed to be vested
with respect to a number of shares determined as the product of (I)
the total number of shares subject to such grant and (II) the
quotient obtained by dividing (aa) the number of days in the
relevant restricted period that the Executive was employed with the
Company (assuming for such purpose that the Executive remained
employed with the Company for the one-year period immediately
following the Executive’s termination of employment) by (bb)
the number of days in the relevant restricted period, but only to
the extent that the application of this clause (3) would result in
more shares being vested than would otherwise be vested under the
terms of such plans and programs and applicable award agreements;
(D) continuation, for two years following such termination of
employment, of group health, life and disability insurance benefits
as if Executive was an employee of the Company; and (E) if a bonus
plan is in place, the product of (x) the target annual bonus for
the fiscal year of Executive’s termination, multiplied by (y)
a fraction, the numerator of which is the number of days of the
current fiscal year during which Executive was employed by the
Company, and the denominator of which is 365, which bonus shall be
paid when bonuses for such period are paid to the other executives;
and
(ii) if such
termination occurs during the period (the “ Protection Period ”)
commencing on the date of a Change in Control (as defined in
Section 11(a)) and ending on the third anniversary of such Change
in Control, Executive shall be entitled to receive, (A) a lump sum
cash payment in an amount equal to three (3) 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
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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,
except that (1) each outstanding option to acquire shares of Common
Stock held by Executive as of the date of such termination shall
become immediately fully vested and remain exercisable until the
earlier of (x) the expiration of such option’s original term
or (y) 36 months following the date of termination and (2) each
outstanding share of restricted Common Stock held by Executive
shall be immediately fully vested as of the date of such
termination; (D) continuation, for three years following such
termination of employment, of group health, life and disability
insurance benefits as if Executive was an employee of the Company;
and (E) if a bonus plan is in place, the product of (x) the target
annual bonus for the fiscal year of Executive’s termination,
multiplied by (y) a fraction, the numerator of which is the number
of days of the current fiscal year during which Executive was
employed by the Company, and the denominator of which is 365, which
bonus shall be paid when bonuses for such period are paid to the
other executives.
To the extent that any
portion of the amount payable pursuant to clause (i)(A) of this
Section 9(c) would be subject to the additional 20% tax imposed
under Section 409A of the Code (the “ 409A Affected Amount ”), the
parties shall negotiate in good faith an alternative arrangement
that will provide Executive with payments that are equivalent in
value to the value of the 409A Affected Amount but would not be
subject to such additional 20% tax; provided ,
however , that to the extent the “short-term
deferral” exception as promulgated in Internal Revenue
Service Notice 2005-1 is still applicable, the Company shall pay
the portion of the 409A Affected Amount otherwise due after the
latest date it could be paid and still maintain the benefit of such
“short-term deferral” exception in the form of a lump
sum cash payment, on the latest possible date permitted pursuant to
such “short-term deferral” exception that would avoid
such additional 20% tax, in an amount equal to the present value of
the 409A Affected Amount on such payment date, with such present
value determined based on an interest rate equal to the
Company’s then applicable cost of short-term borrowing.
In addition, to the extent that any extension, pursuant to clause
(i)(C)(2) or clause (ii)(C)(1) of this Section 9(c), of the period
of exercisability of any outstanding option to acquire shares of
Common Stock would result in the imposition on Executive of the
additional 20% tax under Section 409A of the Code, such extension
shall not apply without the consent of the Executive.
(d)
Termination with Cause or Voluntary Resignation without
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