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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BY AND BETWEEN
PRICELINE.COM INCORPORATED
AND
DANIEL H. SCHULMAN
DECEMBER 20, 2000
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Exhibit 10.59
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of December 20,
2000 (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 Daniel H. Schulman
("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive entered into an employment
agreement, dated June 14, 1999, as amended on August 21, 2000 (the "Original
Employment Agreement");
WHEREAS, the Company desires that Executive continue to be employed
as the President and Chief Executive Officer of the Company;
WHEREAS, the Company and Executive desire to amend and restate the
Original Employment Agreement in its entirety and enter into this agreement (the
"Agreement") as to 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 be for an
approximately five (5) year term (the "Initial Employment Term") commencing on
June 14, 1999 (the "Commencement Date") and ending on June 30, 2004. Subject to
Section 8 hereof, the Initial Employment Term shall be automatically extended
for additional terms of successive one (1) year periods (the "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 then Initial
Employment Term or Additional Employment Term of the termination of Executive's
employment hereunder at the end of such Employment Term. The Initial Employment
Term and the Additional Employment Term shall be referred to herein as the
"Employment Term."
2. Positions. (a) Executive shall serve as the President and Chief
Executive Officer of the Company. Executive shall continue to serve during the
Employment Term as a member of the Board of Directors of the Company (the
"Board"). Executive shall also serve, if requested by the Board, as an executive
officer and director of subsidiaries and a director of associated companies of
the Company and shall comply with the policy of the Compensation Committee of
the Company's Board (the "Compensation Committee") with regard to retention or
forfeiture of director's fees.
(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. Commencing on January 1, 2001 and continuing during
the remainder of the Employment Term, the Company shall pay Executive a base
salary at the annual rate of not less than $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) Stock Options. (i) Option Forfeiture. Executive has previously
been granted stock options (the "Original Options") under the Company's employee
benefit plans to purchase seven million (7,000,000) shares of the Company's
issued and outstanding common stock (the "Common Stock"). In order to facilitate
the grant of stock options under the Plan to certain officers of the Company
that was approved by the Compensation Committee of the Board on November 20,
2000 in connection with the Company's re-structuring and to ensure there are a
sufficient number of stock options available under the Plan for such grant,
Executive hereby forfeits all right, title and interest to the Original Options,
whether vested or unvested.
(ii) Option Grant. Upon the later to occur of (a) June 25, 2001
(six months and five days from the date of this Agreement and
Executive's forfeiture of the Original Options) or (b) to the
extent there are not a sufficient number of shares authorized
for issuance under the Plan (as defined herein) to grant the
Option (as defined herein), with regard to such excess,
approval by the stockholders of the Company at the Company's
2001 Annual Meeting of an amendment to the priceline.com
Incorporated 1999 Omnibus Plan (the "Plan") that increases the
authorized number of shares that may be issued under the Plan
(the "Date of Grant"), the Company shall grant a stock option
(the "Option") under the Plan to Executive to purchase two
million (2,000,000) shares of Common Stock; provided, that
Executive is employed by the Company on the Date of Grant. The
exercise price with respect to each share of Common Stock
subject to the Option shall be the Fair Market Value (as such
term is defined in the Plan) of the Common Stock on the Date
of Grant.
(iii) Option Vesting. The Option shall vest and become exercisable
as to 50% of the Option on the Date of Grant. The Option shall
vest and become exercisable as to the remaining 50% of the
Option pro rata on the 25th of each month over the eighteen
month period immediately following the Date of Grant, provided
that Executive is employed by the Company on each such vesting
date. For avoidance of doubt, there shall be no proportionate
or partial vesting in the periods prior to each vesting date
and vesting shall occur only on the appropriate vesting date
pursuant to this Section 4(c)(iii). Vesting and exercisability
shall be accelerated as follows: (A) upon a Termination
without Cause or a Termination for Good Reason, the Option
will immediately vest and become exercisable (to the extent
not then vested) as follows: 83.33% of the Option if the
termination takes place on or after the Date of Grant and
prior to the first anniversary of the Date of Grant; and 100%
of the Option if the termination takes place thereafter; or
(B) upon death or Termination for a Disability,
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the Option will immediately vest as to 50% of Executive's then
unvested shares; and (C) upon the occurrence of a Change in
Control while Executive is employed by the Company or upon a
termination without Cause in anticipation of a Change in
Control or a Termination for Good Reason in anticipation of a
Change in Control, the Option will fully vest and become
exercisable in full immediately. Upon a Termination without
Cause or a Termination for Good Reason that takes place prior
to the Date of Grant, other than as covered in the next
sentence, the Company shall immediately issue to the Executive
50% of the Option, which shall be fully vested upon the date
of issue. If the Company is unable to issue all or any portion
of the Option as provided herein due to the lack of an
adequate number of authorized options under its stock option
plans, then the Company shall provide the Executive with
alternative compensation of comparable value.
(iv) Termination. Upon Executive's Termination for Cause or
Termination without Good Reason, the unvested portion of the
Option shall be immediately forfeited and canceled. Upon
termination of Executive's employment with the Company, the
portion of the Option that is not, and does not become, vested
in accordance with the terms hereof shall be immediately
forfeited and canceled. The vested portion of the Option shall
expire on the earlier of (i) the tenth (10th) anniversary of
the Date of Grant, or (ii)(A) eighteen (18) months after any
termination if the 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) Restricted Stock. (i) Issue Date. On the Effective Date, the
Company shall issue and Executive shall receive two million five hundred
thousand (2,500,000) shares of Restricted Stock, as such term is defined in the
Plan (the "Restricted Stock"). If required by law, as consideration for receipt
of the Restricted Stock, the Executive shall pay to the Company $20,000, which
represents the par value ($0.008) per share of Restricted Stock.
(ii) Vesting Dates. One million (1,000,000) shares of the
Restricted Stock shall vest on February 19, 2001. Five hundred
thousand (500,000) shares of the Restricted Stock shall vest
on May 1, 2001, and the remaining one million (1,000,000)
shares of Restricted Stock (the "Last Tranche") shall vest on
the second anniversary of the Effective Date. In the event
that the Company has positive Adjusted Net Income (as defined
below) for any twelve month period ending on the last day of a
calendar quarter, the Last Tranche shall immediately vest.
Upon satisfaction of the vesting requirements set forth in
this Section 4(d)(ii), the restrictions on the vested
Restricted Stock, as set forth in Section 8(c) of the Plan,
shall lapse. Adjusted Net Income means the net income (loss)
of the Company and its subsidiaries, on a consolidated basis,
determined in accordance with GAAP, plus, to the extent
deducted in computing net income (loss), (a) supplier warrant
costs, (b) option payroll taxes, (c) stock compensation costs,
(d) restructuring and other one-time charges and (e) preferred
stock dividends.
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(iii) Accelerated Vesting. Vesting of the Restricted Stock shall be
accelerated as follows: (A) upon a Termination without Cause
or a Termination for Good Reason, the Restricted Stock will
immediately vest (to the extent not then vested) as follows:
one million (1,000,000) shares of the Restricted Stock if the
termination takes place prior to February 19, 2001; one
million five hundred thousand (1,500,000) shares of the
Restricted Stock if the termination takes place prior to May
1, 2001; two million (2,000,000) shares of the Restricted
Stock if the termination takes place on or after May 1, 2001
and prior to June 14, 2001; and two million five hundred
thousand (2,500,000) shares of the Restricted Stock if the
termination takes place thereafter; or (B) upon death or
Termination for a Disability, the Restricted Stock will
immediately vest as to fifty percent (50%) of Executive's then
unvested shares; (C) upon the occurrence of a Change in
Control while Executive is employed by the Company or upon a
termination without Cause in anticipation of a Change in
Control or a Termination for Good Reason in anticipation of a
Change in Control, one hundred percent (100%) of the
Restricted Stock will fully vest immediately.
(iv) Termination. Upon Executive's Termination for Cause or
Termination without Good Reason, the unvested portion of the
Restricted Stock shall be immediately forfeited and canceled.
Upon termination of Executive's employment with the Company,
the portion of the Restricted Stock that is not, and does not
become, vested in accordance with the terms hereof shall be
immediately forfeited.
(e) 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. Loan. As approved by the Board on October 23, 2000, and subject
to the terms of this Section 5, four and one half million dollars ($4.5 million)
(the "Forgiven Debt") of the six million dollars ($6.0 million) of outstanding
debt evidenced by the Promissory Note (as defined below), including all accrued
but unpaid interest on the Forgiven Debt, shall be forgiven and Executive shall
execute an amended promissory note, in the form of Exhibit A attached hereto, to
the Company in the amount of $1.5 million. The Forgiven Debt shall be forgiven
pro rata over the period starting from October 23, 2000, the date of the Board's
approval, through January 1, 2001, provided, that Executive has been
continuously employed by the Company through January 1, 2001 (at which point the
Promissory Note shall be canceled). The "Promissory Note" means that certain
promissory note, dated July 2, 1999, as amended on March 28, 2000 and August 31,
2000, executed by Executive to the Company (a canceled copy of which is attached
as Exhibit B hereto). In addition to the Promissory Note, Executive executed a
promissory note to the Company dated May 18, 2000 for $3.0 million which
promissory note shall remain outstanding.
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.
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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;
(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 nonreelection 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
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Company of any provision of this Agreement, including without limitation Section
13 hereof; (vi) Executive's removal from or failure to be elected or reelected
to the Board; or (vii) 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 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 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 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.
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(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) and (d) hereof with regard to the Option and Restricted Stock and
otherwise in accordance with the terms of such plans and programs; (iii)
continuation of Executive's health benefits for Executive's dependents at the
same level and cost as if Executive was an employee of the Company for twelve
(12) months; and (iv) if a bonus plan is in place, the product of (x) the target
annual bonus for the fiscal year of Executive's death, multiplied by (y) a
fraction, the numerator of which is the number of days of the current fiscal
year during which Executive was employed by the Company, and the denominator of
which is 365, which bonus shall be paid 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, to the extent not
duplicative of the foregoing, Executive shall be entitled to continuation of the
benefits (including without limitation to health, life, disability and pension)
as if Executive had been an employee of the Company for twelve (12) months.
(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, Executive shall be entitled
to receive, (A) over a period of twelve (12) months after such termination an
amount equal to two (2) times the sum of his Base Salary and target bonus, if
any, for the year in which such termination occurs (provided, however, in the
event that the Base Salary or target bonus, if any, has been decreased in the
twelve (12) months prior to the termination, the amount to be used shall be the
highest Base Salary and target bonus, if any, during such twelve (12) month
period); (B) any Accrued Amounts at the date of termination; (C) any other
amounts or benefits owing to Executive under the then applicable employee
benefit, long term incentive or equity plans and programs of the Company, which
shall be paid or treated in accordance with Section 4(c) and (d) hereof with
regard to the Option and Restricted Stock and otherwise in accordance with the
terms of such plans and programs; (D) continuation of the benefits (including
without limitation to health, life, disability and pension) as if Executive was
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.
(d) Termination with Cause or Voluntary Resignation without Good
Reason or Retirement. If, Executive's employment hereunder is terminated (i) by
the Company for Cause or (ii) by Executive without Good Reason, the Executive
shall be entitled to receive only his Base Salary through the date of
termination, and any unreimbursed business expenses payable pursuant to Section
7 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
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in accordance with the Company's plans, programs and grants, except as provided
in Section 4(c) and (d) hereof with respect to the Option and the Restricted
Stock.
10. 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 the Executive or others, except upon obtaining by the
Company of a final unappealable judgment against Executive.
11. 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 voting
securities;
(ii) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on the
Effective Date, constitute the Board and any new director (other than a director
whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company's stockholders was approved
or recommended by a vote of the at least two-thirds (2/3) of the directors then
still in office who either were directors on the Effective Date or whose
appointment, election or nomination for election was previously so approved or
recommended;
(iii) there is a consummated merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other corporation,
other than (A) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving or parent entity) more than fifty percent (50%) of
the combined voting power of the voting securities of the Company or such
surviving or parent equity outstanding immediately after such merger or
consolidation or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person,
directly or indirectly, acquired twenty-five percent (25%) or more of the
combined voting power of the Company's then outstanding securities (not
including in the securities beneficially owned by such person any securities
acquired directly from the Company or its Affiliates); or
(iv) the stock holders of the Company approve a plan of complete
liquidation of the Company or there is consummated on agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets
(or any transaction having a similar effect), other than a sale or disposition
by the Company of all or substantially all of the Company's assets to an entity,
at least fifty percent (50%) of the combined voting power of the voting
securities of which are owned by stockholders of the Company in substantially
the same proportions as their ownership of the Company immediately prior to such
sale.
(b) For purposes of this Section 11, the following terms shall have
the following meanings:
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(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, (2) a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company, (3) an underwriter temporarily holding securities
pursuant to an offering of such securities or (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.
12. 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.
(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, knowledge or data relating to the Company and its affiliates, and
their respective businesses, including any confidential information as to
customers of the Company and its affiliates obtained by Executive during his
employment by the Company and its affiliates and not (i) otherwise public
knowledge or known within the applicable industry or (ii) in connection with
performance of his duties hereunder as he deems in good faith to be necessary or
desirable. Executive shall not, without prior written consent of the Company,
unless compelled pursuant to the order of a court or other governmental or legal
body having jurisdiction over such matter, communicate or divulge any such
information, knowledge or data 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 information,
knowledge or data 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 12,
Executive acknowledges that the Company and its affiliates will 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 12 enforced. It is hereby acknowledged that the provisions of this
Section 12 are for the benefit of the Company and all of the affiliates
9
of the Company and each such entity may enforce the provisions of this Section
12 and only the applicable entity can waive the rights hereunder with respect to
its confidential information and employees.
13. 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 the 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.
14. Legal Fees.
(a) The Company shall pay the Executive's reasonable legal fees and
costs associated with entering into this Agreement.
(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 12 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. All expenses of such
arbitration, including the fees and expenses of the counsel of the Executive,
shall be borne by the Company unless the arbitrators determine that Executive's
position was overall frivolous or otherwise taken in bad faith, in which case
the arbitrators may determine that Executive shall bear his own legal fees.
(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, the 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 the 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 the Executive is
intentionally delaying conclusion of the arbitration.
10
15. Non-Solicitation/Non-Disparagement. Commencing on the date of
Executive's cessation of employment with the Company and continuing for twelve
(12) months thereafter, (a) Executive shall not (whether for Executive's own
account or on behalf of any person, corporation, partnership, or other business
entity, and whether directly or indirectly) solicit or endeaver to entice away
from the Company or any subsidiary or affiliate, any employee or group of
employees thereof provided, however, that the general advertisement for
employees or the general solicitation of employees by a recruiter shall not be
deemed a violation of this Section 15(a) and (b) neither Executive nor the
Company formally nor its directors or senior officers shall publicly or with the
intent to become public make any statements, written or oral, which disparage or
defame the goodwill or reputation of, in Executive's case, the Company or, its
directors or senior officers or, in the Company's, its directors' or senior
officers' case, Executive.
16. Certain Additional Payments by the Company.
(a) 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 affiliated entities) or any entity
which effectuates a Change in Control (or any of its affiliated entities) 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 16) (the "Payments") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (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, the Executive shall be deemed to (i) pay federal income taxes
at the highest marginal rates of federal income taxation 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 marginal rate of taxation for the calendar
year in which the Gross-up Payment is to be made, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state and
local taxes. Notwithstanding the foregoing provisions of this Section 16(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 first the payments under Section 9, unless
an alternative method of reduction is elected by Executive. 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 16(a), all determinations
required to be made under this Section 16, 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
11
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 the 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. The Gross-up Payment under this Section 16 with respect to any
Payments shall be made no later than thirty (30) days following such Payment. 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 the 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 the 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. Executive shall
cooperate, to the extent his expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax.
17. Maintenance Expenses. The Company shall reimburse Executive for
all reasonable expenses and costs associated with maintaining a temporary
residence near the Company's office in Norwalk, Connecticut on a fully grossed
up basis such that on an after tax basis Executive shall have no after tax cost
for the maintenance of such residence.
18. 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
Commencement Date and supersedes any prior agreements between the Company and
Executive. 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.
12
(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 the Executive and otherwise complies with the provisions hereof with regard
to such assumption.
(e) Successors; Binding Agreement; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees legatees and permitted assignees of the parties hereto.
(f) Communications. For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) when faxed or delivered, or (ii) two
(2) business days after being mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the initial page of this Agreement, provided that all
notices to the Company shall be directed to the attention of the Secretary of
the Company, or to such other address as any party may have furnished to the
other in writing in accordance herewith. Notice of change of address shall be
effective only upon receipt.
(g) Withholding Taxes. The Company may withhold from any and all
amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
Executive shall promptly pay to the Company any Federal, state and local taxes
required to be withheld by the Company in connection with the Forgiven Debt in
Section 5 of this Agreement.
(h) Survivorship. The respective rights and obligations of the
parties hereunder, including without limitation Section 12 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, 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.
13
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
Priceline.com Incorporated
By: ________________________________
Richard Braddock
Chairman of the Board
Priceline.com Incorporated
________________________________
Daniel H. Schulman
14
EXHIBIT A
PROMISSORY NOTE
July 2, 1999
$1,500,000 Norwalk, Connecticut
FOR VALUE RECEIVED, the undersigned, DANIEL H. SCHULMAN (the "Borrower"),
hereby promises to pay to the order of PRICELINE.COM INCORPORATED, a Delaware
corporation with an office located at Five High Ridge Park, Stamford,
Connecticut 06905 (the "Company"), the aggregate principal amount of ONE MILLION
FIVE HUNDRED THOUSAND and 00/100 DOLLARS ($1,500,000), together with interest on
the unpaid principal balance amount hereunder accruing annually at 5.82%.
Subject to any prepayment obligations hereunder, interest shall be payable in
full on the Maturity Date (as defined below). The unpaid principal amount
hereunder, together with all accrued but unpaid interest, shall be due and
payable in full on July 2, 2004 (the "Maturity Date"). Payment of principal and
interest shall be made to the Company at the address indicated above, or at such
other address as the Company may specify in writing to the Borrower.
The Borrower shall pay to the Company a mandatory prepayment of accrued
interest hereunder and principal upon the exercise, at any time on or prior to
June 14, 2004, of one or more Company stock options granted to the Borrower
under the Company's 1999 Omnibus Plan (including any amendments thereto), or
other equity plan, or any options granted in exchange, replacement or
substitution therefor, in an amount equal to twenty-five percent (25%) of
Borrower's pretax profits in excess of ten million dollars ($10,000,000.00) (the
"Profits Threshold"). Within ten (10) Business Days (as hereinafter defined)
following each date that the Borrower shall exercise options referred to above
in excess of the Profits Threshold, Borrower shall deliver a mandatory
prepayment in reduction of the accrued interest and outstanding principal
balance of this Note in an amount required by the first sentence of this
paragraph. Each prepayment, as provided herein, shall be applied first against
accrued but unpaid interest under this Note and then in reduction of the
outstanding principal amount hereof until the indebtedness of this Note is paid
in full. "Business Day" shall mean any day on which NASDAQ is not authorized or
required to close and trading of securities is permitted.
The Borrower shall have the right to prepay this Note in whole or in part
at any time, without premium or penalty, but with interest accrued on the
principal being paid to the date of such prepayment.
Notwithstanding anything contained herein to the contrary, the Borrower
shall be released of the outstanding debt evidenced by this Note, including all
accrued but unpaid interest, and the same shall be forgiven and extinguished
upon a "Change in Control", or the death, "Termination for Disability",
"Termination without Cause", or "Termination for Good Reason" of the Borrower
(each such term being used as defined and used in the Employment Agreement), or
immediately following expiration of the Maturity Date provided that the
Borrower's employment with the Company has not
15
been terminated for "Cause" or by the Borrower without "Good Reason" prior
thereto (each such term being used as defined and used in the Employment
Agreement).
The Borrower shall be obligated to prepay this Note in whole, plus accrued
interest, on the date thirty (30) days following termination of Borrower's
employment by the Company for "Cause" or by the Borrower voluntarily without
"Good Reason".
In the event of the default in the payment of principal or interest due
hereunder when the same shall be due and payable and such default shall continue
for thirty (30) days after receipt by the Borrower of written notice thereof (a
"Default"), then, the Company or any subsequent holder of this Note, at its
option, may, by written notice to the Borrower, declare the entire then unpaid
principal amount of this Note and the interest accrued and unpaid thereon to be
immediately due and payable.
If a Default occurs, the Company or any subsequent holder of this Note,
may proceed to protect and enforce its rights either by suit in equity and/or by
action at law, or by other appropriate proceedings. Notwithstanding anything to
the contrary set forth in the Employment Agreement and provided that no issue is
present as to the basis of any termination of employment by the Borrower with
the Company, the Borrower promises to pay the Company's reasonable attorneys'
fees and other costs of collection of this Note or any portion thereof,
including the costs of suit if a suit shall be instituted upon this Note and the
Company shall prevail in such suite.
No delay or omission of the Company or any subsequent holder of this Note,
to exercise any right hereunder, whether before or after the happening of a
Default, shall impair any such right or shall operate as a waiver thereof or of
a Default hereunder not shall any single or partial exercise thereof preclude
any other or further exercise thereof, or the exercise of any other right.
The Borrower hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement hereof and consents that no indulgence, and
no substitution, release or surrender of collateral, and no discharge or release
of any other party primarily or secondarily liable hereon, shall discharge or
otherwise affect the liability of the Borrower.
Anything herein contained to the contrary notwithstanding, the maximum
rate of interest payable with respect to the unpaid principal amount hereof
shall not exceed the maximum rate allowable under such provisions of applicable
law.
The rights and benefits of the Company hereunder shall inure to the
benefit of its successors and assigns. This Note shall be construed and
interpreted in accordance with the laws of the State of Delaware. Except as
otherwise provided in this Note, any dispute arising under this Note shall be
resolved in accordance with the terms and procedures set forth in Section 14 of
the Employment Agreement.
____________________________
DANIEL H. SCHULMAN
16
EXHIBIT B
Canceled Promissory Note
17
Amendment to Employment Agreement
The Amended and Restated Employment Agreement, dated December 20, 2000, by
and between priceline.com Incorporated and Daniel H. Schulman, shall be amended
by replacing the first two sentences of Section 4(d)(ii) in their entirety with
two new sentences reading in full as follows:
"One million five hundred thousand (1,500,000) shares of the Restricted
Stock shall vest on May 20, 2001. The remaining one million (1,000,000)
shares of Restricted Stock (the "Last Tranche") shall vest on the second
anniversary of the Effective Date."
PRICELINE.COM INCORPORATED
_____________________________
By: Richard Braddock
Title: Chairman
_____________________________
DANIEL H. SCHULMAN
Dated as of: February 18, 2001