Exhibit 10.83
EMPLOYMENT
AGREEMENT
BY AND
BETWEEN
PRICELINE.COM
INCORPORATED
AND
CHRIS SODER
FEBRUARY 7,
2005
EMPLOYMENT
AGREEMENT
EMPLOYMENT
AGREEMENT, dated as of February 7, 2005 (the “
Effective Date
”), by and between Priceline.com Incorporated, a Delaware
corporation, with its principal office at 800 Connecticut Avenue,
Norwalk, Connecticut 06854 (the “ Company ”), and Chris Soder
(“ Executive
”).
W I T
N E S S E T H
:
WHEREAS , the
Company and Executive entered into an employment arrangement dated
May 1, 2002, March 13, 2001 and January 4, 2000
(collectively, the “ Original Employment Arrangements
”)
WHEREAS , the
Company desires that Executive continue to be employed as the
Executive Vice President, Lodging and Vacation Packages of the
Company;
WHEREAS , the
Company and Executive desire to replace and supercede the Original
Employment Arrangements in their entirety and enter into this
agreement (the “ Agreement ”) providing for
the terms of his employment by the Company;
NOW, THEREFORE , in
consideration of the premises and mutual covenants contained herein
and for other good and valuable consideration, the parties agree as
follows:
1 .
Term of Employment . Except for earlier termination as
provided in Section 8 hereof, Executive’s employment
under this Agreement shall commence on the Effective Date and end
on the second anniversary of the Effective Date (the “
Initial Employment
Term ”), provided that the Initial Employment Term
shall be automatically extended for additional terms of successive
one (1) year periods (each, an “ Additional Employment Term ”)
unless the Company or Executive gives written notice to the other
at least ninety (90) days prior to the expiration of the Initial
Employment Term or then-current Additional Employment Term that the
Executive’s employment shall not be so extended. The
Initial Employment Term and each Additional Employment Term shall
be referred to herein as the “ Employment Term .”
2 .
Positions . (a) Executive shall serve as Executive
Vice President, Lodging and Vacation Packages of the
Company. Executive shall also serve, if requested by
the Chief Executive Officer of the Company, as an executive officer
and director of subsidiaries and a director of Affiliates of the
Company and shall comply with the policy of the Compensation
Committee of the Company’s Board of Directors (the “
Compensation
Committee ”) with regard to retention or
forfeiture of director’s fees.
(b)
Executive shall report directly to the Chief Executive Officer of
the Company and shall have such duties and authority, consistent
with his then position, as shall be assigned to him from time to
time by the Board of Directors (the “ Board ”) or the Chief
Executive Officer of the Company.
(c)
During the Employment Term, Executive shall devote substantially
all of his business time and efforts to the performance of his
duties hereunder; provided,
however , that Executive shall be allowed, to the extent
that such activities do not materially interfere with the
performance of his duties and responsibilities hereunder, to manage
his personal financial and legal affairs and to serve on corporate,
civic, charitable industry boards or committees.
Notwithstanding the foregoing, the Executive shall only serve on
corporate boards of directors if approved in advance by the Chief
Executive Officer of the Company.
3 .
Base Salary . During the Employment Term, the Company
shall pay Executive a base salary at the annual rate of not less
than $300,000. Base salary shall be payable in accordance
with the usual payroll practices of the Company.
Executive’s base salary shall be subject to annual review by
the Board or the Compensation Committee during the Employment Term
and may be increased, but not decreased, from time to
time by the Board or
the Compensation Committee. The base salary as determined as
aforesaid from time to time shall constitute “
Base Salary ”
for purposes of this Agreement.
4 .
Incentive Compensation . (a) Bonus
. Executive shall be eligible to participate in any annual
bonus plan the Company may implement at any time during
Executive’s Employment Term for senior executives at a level
commensurate with his position.
(b)
Long Term Compensation . For each fiscal year or
portion thereof during the Employment Term, Executive shall be
eligible to participate in any long-term incentive compensation
plan generally made available to senior executives of the Company
at a level commensurate with his position in accordance with and
subject to the terms of such plan.
(c)
Other Compensation . The Company may, upon
recommendation of the Compensation Committee, award to the
Executive such other bonuses and compensation as it deems
appropriate and reasonable.
5.
Employee Benefits and Vacation . (a) During the
Employment Term, Executive shall be entitled to participate in all
benefit plans and arrangements and fringe benefits and perquisite
programs generally provided to comparable senior executives of the
Company.
(b)
During the Employment Term, Executive shall be entitled to vacation
each year in accordance with the Company’s policies in effect
from time to time, but in no event less than four (4) weeks paid
vacation per calendar year. The Executive shall also be
entitled to such periods of sick leave as is customarily provided
by the Company for its senior executive employees.
6.
Business Expenses . The Company shall reimburse
Executive for the travel, entertainment and other business expenses
incurred by Executive in the performance of his duties hereunder,
in accordance with the Company’s policies as in effect from
time to time.
7.
Termination . (a) The employment of Executive
under this Agreement shall terminate upon the earliest to occur of
any of the following events:
(i)
the death of the Executive;
(ii)
the termination of the Executive’s employment by the Company
due to the Executive’s Disability pursuant to
Section 7(b) hereof;
(iii)
the termination of the Executive’s employment by the
Executive for Good Reason pursuant to Section 7(c) hereof;
(iv)
the termination of the Executive’s employment by the Company
without Cause;
(v)
the termination of employment by the Executive without Good Reason
upon sixty (60) days prior written notice; or
(vi)
the termination of the Executive’s employment by the Company
for Cause pursuant to Section 7(e).
(b)
Disability . If by reason of the same or related
physical or mental illness or incapacity, the Executive is
unable to carry out his material duties pursuant to this Agreement
for more than six (6) consecutive months, the Company may terminate
Executive’s employment for Disability. Such termination
shall be upon thirty (30) days written notice by a Notice of
Disability Termination, at any time thereafter while Executive
consecutively continues to be unable to carry out his duties as a
result of the same or related physical or mental illness or
incapacity. A Termination for Disability hereunder shall not
be effective if Executive returns to the full time performance of
his material duties within such thirty (30) day period.
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(c)
Termination for Good Reason . A Termination for Good
Reason means a termination by Executive by written notice given
within ninety (90) days after the occurrence of the Good Reason
event, unless such circumstances are fully corrected prior to the
date of termination specified in the Notice of Termination for Good
Reason (as defined in Section 7(d) hereof). For purposes
of this Agreement, “ Good
Reason ” shall mean the occurrence or failure to
cause the occurrence, as the case may be, without Executive’s
express written consent, of any of the following
circumstances: (i) any material diminution of
Executive’s positions, duties or responsibilities hereunder
(except in each case in connection with the termination of
Executive’s employment for Cause or Disability or as a result
of Executive’s death, or temporarily as a result of
Executive’s illness or other absence), or, the assignment to
Executive of duties or responsibilities that are inconsistent with
Executive’s then position; (ii) removal of, or the
non-reelection of, the Executive from officer positions with the
Company specified herein without election to a higher position or
removal of the Executive from any of his then officer positions;
(iii) a relocation of the Company’s executive office in
Connecticut to a location more than thirty-five (35) miles
from its current location or more than thirty-five (35) miles
further from the Executive’s residence at the time of
relocation; (iv) a failure by the Company (A) to continue
any bonus plan, program or arrangement in which Executive is
entitled to participate (the “ Bonus Plans ”), provided that
any such Bonus Plans may be modified at the Company’s
discretion from time to time but shall be deemed terminated if (x)
any such plan does not remain substantially in the form in effect
prior to such modification and (y) if plans providing Executive
with substantially similar benefits are not substituted therefor
(“ Substitute
Plans ”), or (B) to continue Executive as a
participant in the Bonus Plans and Substitute Plans on at least the
same basis as to potential amount of the bonus as Executive
participated in prior to any change in such plans or awards, in
accordance with the Bonus Plans and the Substitute Plans;
(v) any material breach by the Company of any provision of
this Agreement, including without limitation Section 12
hereof; or (vi) failure of any successor to the Company (whether
direct or indirect and whether by merger, acquisition,
consolidation or otherwise) to assume in a writing delivered to
Executive upon the assignee becoming such, the obligations of the
Company hereunder.
(d)
Notice of Termination for Good Reason . A Notice of
Termination for Good Reason shall mean a notice that shall indicate
the specific termination provision in Section 7(c) relied upon
and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for Termination for Good
Reason. The failure by Executive to set forth in the Notice
of Termination for Good Reason any facts or circumstances which
contribute to the showing of Good Reason shall not waive any right
of Executive hereunder or preclude Executive from asserting such
fact or circumstance in enforcing his rights hereunder. The
Notice of Termination for Good Reason shall provide for a date of
termination not less than ten (10) nor more than sixty (60) days
after the date such Notice of Termination for Good Reason is given,
provided that in the case of the events set forth in Sections
7(c)(i) or (ii) or the date may be five (5) days after the giving
of such notice.
(e)
Cause . Subject to the notification provisions of
Section 7(f) below, Executive’s employment hereunder may
be terminated by the Company for Cause. For purposes of this
Agreement, the term “Cause” shall be limited to
(i) willful misconduct by Executive with regard to the Company
which has a material adverse effect on the Company; (ii) the
willful refusal of Executive to attempt to follow the proper
written direction of the Board or a more senior officer of the
Company, provided that the foregoing refusal shall not be
“Cause” if Executive in good faith believes that such
direction is illegal, unethical or immoral and promptly so notifies
the Board or the more senior officer (whichever is applicable);
(iii) substantial and continuing willful refusal by the
Executive to attempt to perform the duties required of him
hereunder (other than any such failure resulting from incapacity
due to physical or mental illness) after a written demand for
substantial performance is delivered to the Executive by the Board
or a more senior officer of the Company which specifically
identifies the manner in which it is believed that the Executive
has substantially and continually refused to attempt to perform his
duties hereunder; or (iv) the Executive being convicted of a felony
(other than a felony involving a traffic violation or as a result
of vicarious liability). For purposes of this
3
paragraph, no act, or
failure to act, on Executive’s part shall be considered
“willful” unless done or omitted to be done, by him not
in good faith and without reasonable belief that his action or
omission was in the best interests of the Company. A notice
by the Company of a non-renewal of the Employment Term pursuant to
Section 1 hereof shall be deemed an involuntary termination of
Executive by the Company without Cause as of the end of the then
Employment Term, but Executive may terminate at any time after the
receipt of such notice and shall be treated as if he was terminated
without Cause as of such date.
(f)
Notice of Termination for Cause . A Notice of
Termination for Cause shall mean a notice that shall indicate the
specific termination provision in Section 7(e) relied upon and
shall set forth in reasonable detail the facts and circumstances
which provide for a basis for Termination for Cause. Further,
a Notification for Cause shall be required to include a copy of a
resolution duly adopted by at least two-thirds (2/3) of the entire
membership of the Board at a meeting of the Board which was called
for the purpose of considering such termination and which Executive
and his representative had the right to attend and address the
Board, finding that, in the good faith of the Board, Executive
engaged in conduct set forth in the definition of Cause herein and
specifying the particulars thereof in reasonable detail. The
date of termination for a Termination for Cause shall be the date
indicated in the Notice of Termination. Any purported
Termination for Cause which is held by a court not to have been
based on the grounds set forth in this Agreement or not to have
followed the procedures set forth in this Agreement shall be deemed
a Termination by the Company without Cause.
8.
Consequences of Termination of Employment .
(a)
Death . If, Executive’s employment is terminated
by reason of Executive’s death, the employment period under
this Agreement shall terminate without further obligations to the
Executive’s legal representatives under this Agreement except
for: (i) any compensation earned but not yet paid,
including and without limitation, any bonus if declared or earned
but not yet paid for a completed fiscal year, any amount of Base
Salary earned but unpaid, any accrued vacation pay payable pursuant
to the Company’s policies, and any unreimbursed business
expenses payable pursuant to Section 6 (collectively “
Accrued Amounts
”), which amounts shall be promptly paid in a lump sum to
Executive’s estate; (ii) any other amounts or benefits owing
to the Executive under the then applicable employee benefit plans,
long term incentive plans or equity plans and programs of the
Company which shall be paid or treated in accordance with the terms
of such plans and programs; (iii) continuation, for twelve (12)
months following the date of death, of Executive’s health
benefits for Executive’s dependents at the same level and
cost as if Executive was an employee of the Company; and (iv) if a
bonus plan is in place, the product of (x) the target annual bonus
for the fiscal year of Executive’s death, multiplied by (y) a
fraction, the numerator of which is the number of days of the
current fiscal year during which Executive was employed by the
Company, and the denominator of which is 365, which bonus shall be
paid when bonuses for such period are paid to the other
executives.
(b)
Disability . If Executive’s employment is
terminated by reason of Executive’s Disability, Executive
shall be entitled to receive the payments and benefits to which his
representatives would be entitled in the event of a termination of
employment by reason of his death plus Executive shall be entitled
to continuation, for twelve (12) months following such termination
of employment, of group life and disability insurance benefits, as
if Executive were an active employee of the Company.
(c)
Termination by Executive for Good Reason or Termination by the
Company without Cause . If (i) Executive terminates his
employment hereunder for Good Reason during the Employment Term or
(ii) Executive’s employment with the Company is terminated by
the Company without Cause, then Executive shall be entitled to
receive, (A) over a period of twelve (12) months after such
termination (except as provided below) an amount equal to two (2)
times the sum of his Base Salary and target bonus, if any, for the
year in which such termination occurs (provided, however, in the
event that the Base Salary or target bonus, if
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any, has been decreased
in the twelve (12) months prior to the termination, the amount to
be used shall be the highest Base Salary and target bonus, if any,
during such twelve (12) month period); (B) any Accrued Amounts at
the date of termination; (C) any other amounts or benefits owing to
Executive under the then applicable employee benefit, long term
incentive or equity plans and programs of the Company, which shall
be paid or treated in accordance with the terms of such plans and
programs; (D) continuation of the benefits (including without
limitation to health, life, and disability) as if Executive were an
employee of the Company for twelve (12) months, provided that, if
such termination is after a Change in Control, the period of
benefit continuation shall be twenty-four (24) months; and (E) if a
bonus plan is in place, the product of (x) the target annual bonus
for the fiscal year of Executive’s termination, multiplied by
(y) a fraction, the numerator of which is the number of days of the
current fiscal year during which Executive was employed by the
Company, and the denominator of which is 365, which bonus shall be
paid when bonuses for such period are paid to the other
executives.
To the extent that
all or any portion of
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