Delaware | 0-25581 | 06-1528493 | ||
(State or other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
800 Connecticut Avenue, Norwalk, Connecticut | 06854 | |
(Address of principal office) | (zip code) |
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Item 9.01. | Financial Statements and Exhibits. |
(d) | Exhibits |
99.1 | Press release. |
99.2 | Transition Agreement dated November 7, 2013 by and between the Company and Jeffery H. Boyd. |
99.3 | Amended and Restated Employment Agreement dated November 7, 2013 by and between the Company, Booking.com Holding B.V. and Darren Huston. |
99.4 | Amended and Restated Non-Competition and Non-Solicitation Agreement dated November 7, 2013 by and between the Company and Darren Huston. |
PRICELINE.COM INCORPORATED | |||
By: | /s/ Peter J. Millones | ||
Name: | Peter J. Millones | ||
Title: | Executive Vice President and General Counsel |
99.1 | Press release. |
99.2 | Transition Agreement dated November 7, 2013 by and between the Company and Jeffery H. Boyd. |
99.3 | Amended and Restated Employment Agreement dated November 7, 2013 by and between the Company, Booking.com Holding B.V. and Darren Huston. |
99.4 | Amended and Restated Non-Competition and Non-Solicitation Agreement dated November 7, 2013 by and between the Company and Darren Huston. |
1. | Terms Relating to Resignation of Employment. |
• | Employee has been the Chief Executive Officer of, and employed by, Booking.com, which is a wholly-owned subsidiary of priceline.com, since September 26, 2011. |
• | Booking.com and Employee are currently parties to an Employment Contract, dated September 26, 2011 (the ‘Prior Employment Contract’). |
• | Employee has been appointed the President and Chief Executive Officer of priceline.com, effective as of January 1, 2014. |
• | Employee shall continue to be the Chief Executive Officer of Booking.com after January 1, 2014. |
• | To reflect the mutual agreements of Booking.com, priceline.com and Employee related to Employee’s services to both Booking.com and priceline.com, the parties desire to add priceline.com as a party to the employment contract with Employee and amend and restate the Prior Employment Contract in its entirety. |
• | This Amended and Restated Employment Contract (this ‘Agreement’) shall supercede and completely replace the Prior Employment Contract effective as of January 1, 2014 (the ‘Effective Date’). |
1. | Commencement, Term and Notice |
1.1. | This Agreement replaces and supersedes the Prior Employment Contract and is entered into for an indefinite period of time starting on the Effective Date (the ‘Employment Term’). |
1.2. | This Agreement may be terminated by either party with due observance of the statutory notice period. Notice may be given in writing only. |
1.3. | This Agreement will end in any event without notice being required at the end of the month in which Employee reaches the pensionable age under the applicable pension agreement or under the General Old Age Pensions Act (‘Algemene Ouderdomswet’), whichever occurs first. |
1.4. | Any and all references to the Dutch Civil Code in this Agreement shall refer to the official, Dutch language version of the statute. |
2. | Change of Employment Terms |
3. | Employee Manual |
3.1. | Employee acknowledges receipt of Booking.com’s Employee Manual and agrees that the provisions of the Employee Manual form an integral part of this Agreement so long as Employee is an employee of Booking.com. To the extent that the provisions of this Agreement are inconsistent with the provisions of the Employee Manual, the provisions of this Agreement will control and supersede those of the Employee Manual. |
4. | Position |
4.1. | Employee will hold the position of President and Chief Executive Officer of priceline.com. As President and Chief Executive Officer of priceline.com, Employee shall report directly to the Board of Directors of priceline.com (the ‘priceline.com Board’) and have such duties and authority, consistent with his position, to generally supervise and direct the business and affairs of priceline.com and its subsidiaries. |
4.2. | Executive will also hold the position of Chief Executive Officer of Booking.com. As Chief Executive Officer of Booking.com, Employee shall have such duties and authority, consistent with his position, to generally supervise and direct the business and affairs of Booking.com. |
4.3. | Employee shall be appointed as a member of the priceline.com Board effective as of the Effective Date and shall continue to be appointed as a managing director of Booking.com in accordance with the terms set forth in the Articles of Association of Booking.com (the ‘Articles’) and shall exercise his duties as managing director in accordance with the Articles (and the guidelines, if any, as determined by Booking.com’s general meeting of shareholders). For so long as Employee holds the position of Chief Executive Officer of priceline.com, priceline.com shall use its good faith efforts to nominate Employee for election to the priceline.com Board and procure his election to the priceline.com Board at any applicable meeting of stockholders held for the purpose of electing directors, and Employee hereby agrees to serve on the priceline.com Board. Employee agrees that in the event his employment as Chief Executive Officer of |
4.4. | Employee will be a member of the Group Management Board, which is comprised of senior executives of the “Company” (as defined in Appendix A attached hereto) and oversees management of the consolidated entities of priceline.com. |
4.5. | Subject to Employee’s prior consent (which shall not be unreasonably delayed, conditioned or withheld), Employee may be assigned to work for an affiliate of priceline.com (in addition to Booking.com), and in such instance, Employee covenants that he, to the extent reasonable, will also perform duties other than those considered to be Employee’s usual duties. |
4.6. | Employee shall devote substantially all of his business time and efforts to the performance of his duties under this Agreement. |
5. | Working Hours and Work Place |
5.1. | The usual work week runs for 5 days, and Employee is expected to work at least 40 hours per week. |
5.2. | Employee covenants that, at the request of priceline.com or Booking.com, Employee will work overtime whenever a proper performance of Employee so requires. Overtime is not separately paid or otherwise compensated for. |
6. | Compensation |
6.1. | Base Salary. During the Employment Term while Employee resides in The Netherlands, Employee will receive a gross monthly base salary of EUR 46,044 (the ‘Base Salary’), which shall be payable in equal installments in accordance with the usual payroll practices of Booking.com and shall be apportioned between Booking.com and priceline.com within a reasonable period of time after the execution of this Agreement for purposes of, and in accordance with, applicable tax laws. The parties agree that the Base Salary described in the previous sentence is based on an annual salary of US$750,000 and an exchange rate of $1 = 0.736704 EUR as of October 8, 2013. The parties further agree that so long as the Base Salary is paid in Euros, the rate of pay shall be adjusted on each January 1 during the Employment Term to take into account the prevailing exchange rate. If Employee relocates to the United States during the Employment Term, then following such relocation, he will receive an annual salary at the rate of $750,000, to be paid in accordance with the regular payroll practices of priceline.com. The Base Salary includes the statutory holiday allowance. Employee’s Base Salary shall be subject to annual review by the priceline.com Board or the Compensation Committee of the priceline.com Board (the ‘Compensation Committee’) during the Employment Term and may be increased from time to time by the priceline.com Board or the Compensation Committee, but not decreased, unless the priceline.com Board or Compensation Committee reduces the base salary in a proportionate amount for all senior executives of the Company. |
6.2. | Incentive Compensation. (a) During the Employment Term, Employee will be eligible to participate in any annual bonus plans that the Company may implement at any time during the Employment Term for senior executives of the Company. The grant of a bonus in any given year or during several years shall not create a precedent for any subsequent years. For purposes of this Agreement, a bonus in respect of services performed in a fiscal year will not be considered to be earned (a) until after the priceline.com Board or a committee established thereunder has reviewed the Company’s performance and Employee’s performance in respect of such year (with such performance standards to be established after taking into consideration any reasonable suggestions provided by Employee) and has determined the amount of the bonus, if any, to be payable to Employee in respect of such year’s performance and (b) unless Employee remains employed with Booking.com or priceline.com through the relevant payment date of such bonus; provided, however, that if Employee is still employed by the Company as of December 31 of any year, Employee shall be considered to have earned the bonus in respect of services performed in such year (to the extent the committee and/or the priceline.com Board determines that such bonus would otherwise have been payable to Employee had Employee remained employed through the relevant payment date for such bonus) unless Employee’s employment is subsequently terminated by the Company for “Cause” (as defined in Appendix A attached hereto) or as a result of a termination by Employee of his employment with the Company without “Good Reason” (as defined in Appendix A attached hereto, except that clause (b) of such definition (pertaining to involuntary relocation) shall apply only in connection with a Change in Control (as defined in Appendix A) for purposes of this Article 6.2(a)). Furthermore, notwithstanding any provision herein to the contrary, any bonus that is considered earned pursuant to the immediately preceding sentence shall be paid to Employee at the same time as any similar bonus is paid to other senior executives of the Company, with a target payment date of March 15 of the fiscal year following the fiscal year in which the bonus is considered to have been earned, but in any event in the fiscal year following the fiscal year in which the bonus is considered to have been earned. |
6.3. | Long-Term Compensation. During the Employment Term, Employee will be eligible to participate in any long-term incentive compensation plan generally made available to senior executives of the Company in accordance with and subject to the terms of such plan. |
6.4. | RSU and PSU Grants. Priceline.com shall grant to Employee (a) on November 12, 2013, a number of stock-settled restricted stock units (‘RSUs’) with a value equal to US$6 million as of the grant date, pursuant to priceline.com Incorporated’s 1999 Omnibus Plan, as amended (the ‘1999 Plan’) and an RSU agreement, in |
6.5. | Employee Benefits. (a) During the Employment Term while Employee resides in The Netherlands: |
7. | Expenses |
7.1. | Subject to Article 21.1, Booking.com will reimburse Employee’s reasonable expenses directly related to the performance of Employee’s work, provided such reimbursement may be made tax and social security premium free and provided itemized expense statements and original receipts are submitted in accordance with company policy. |
7.2. | Subject to Article 21.1, Booking.com shall reimburse Employee for all reasonable and customary relocation expenses incurred by Employee in connection with Employee’s relocation to the United States (at any such time that such relocation may occur during the Employment Term, or as provided in Articles 11.1, 11.2 and 11.3, or in the event of Employee’s voluntary resignation of service as Chief Executive Officer of priceline.com after a minimum of four (4) years of service in such role so long as Executive has not accepted an offer of employment with any other company as of the date of resignation), provided that (a) except with respect to a relocation following an event described in Article 11.1, 11.2 or 11.3 or a voluntary resignation as described above, Employee is still the President and Chief Executive Officer of priceline.com at the time of |
7.3. | Subject to Article 21.1, Booking.com shall reimburse in 2013 Employee’s attorney and accountants’ fees incurred in 2013 that are directly related to the negotiation and preparation of this Agreement; provided, however, that the aggregate amount of such reimbursements shall not exceed |
7.4. | For each academic year that occurs during the Employment Term while Employee resides in The Netherlands, starting with the 2012-2013 academic year, Booking.com shall provide Employee with a cash payment in an amount equal to the amount, if any, by which (a) the aggregate cost of school tuition in The Netherlands for Employee’s children for the applicable academic year exceeds (b) US$35,000. Such cash payment shall be made in a lump sum in Euros in June of each calendar year, provided that Employee provides evidence of payment of such school tuition for the applicable academic year to Booking.com. |
8. | Travel Expenses |
8.1. | Subject to Article 21.1, travel expenses for commuting within Europe will be reimbursed in accordance with applicable tax rules up to an amount of EUR 0.19 per kilometer (the applicable rate in 2013) along the most customary route. |
8.2. | Booking.com shall increase the allowance under Article 8.1 of this Agreement in the event of an increase thereof under applicable tax law. |
8.3. | Subject to Article 21.1, for each calendar year during the Employment Term while Employee resides in The Netherlands, Booking.com agrees to reimburse Employee for the cost of one (1) business class airplane ticket for round-trip travel from The Netherlands to a destination in North America for each member of Employee’s immediate family. |
9. | Holidays |
9.1. | During the Employment Term, Employee will be entitled to 28 days of holiday (not including public holidays) each calendar year. If Employee works for only a part of the year, the number of days of holiday will be reduced pro rata. |
9.2. | Holidays are set by the Company after consultation with Employee (with the Company’s consent to Employee’s requested holiday schedule not to be unreasonably delayed, conditioned, or withheld). |
9.3. | To the extent practicable and subject to applicable law and Company policies, holidays generally must be taken in the year in which they are accrued. |
10. | Illness or Other Incapacity to Work |
10.1. | During the Employment Term while Employee resides in The Netherlands, if Employee is unable to perform work due to illness or any other medical incapacity, Employee is obliged to inform the Company as soon as |
10.2. | As long as this Agreement is still in effect and Employee resides in The Netherlands, if Employee is unable to perform work due to illness or other medical incapacity, Employee will remain entitled to continued payment of (a) 100% of Employee’s Base Salary, but in no case less than the statutory minimum wage, for the first six (6) months of illness or incapacity, commencing on the first day of illness or incapacity, (b) 85% of Employee’s Base Salary, but in no case less than the statutory minimum wage, for the second six (6) months of illness or incapacity, commencing on the first day of the seventh month of illness or incapacity, and (c) 70% of Employee’s Base Salary, but in no case less than the statutory minimum wage, for the second year of illness or incapacity, commencing on the first anniversary of the first year of illness or incapacity. |
10.3. | For purposes of this Article 10, periods in which Employee is unable to perform work due to illness or other medical incapacity will be aggregated if they follow one another at intervals of less than four weeks. |
10.4. | Employee is not entitled to continued payment under the circumstances set out in Article 7:629 of the Dutch Civil Code. |
10.5. | Employee’s salary during illness or other medical incapacity will be reduced by financial benefits that Employee receives under any contractual insurance paid by the Company, statutory insurance and any other income earned by Employee for services performed by Employee for the Company. |
10.6. | If Employee’s illness or other incapacity to work ensues from an event for which a third party is liable, Employee shall provide the Company with all relevant information and do everything in Employee’s power to enable the Company to exercise its right of recourse pursuant to Article 6:107a of the Dutch Civil Code. |
11. | Payments Upon Termination |
11.1. | Death. If the Employment Term ends due to Employee’s death and if a bonus plan is in place at such time, Employee’s heirs are entitled to receive the product of (a) the target annual bonus for the fiscal year in which Employee dies, multiplied by (b) a fraction, the numerator of which is the number of days that Employee worked during the fiscal year in which Employee died, and the denominator of which is 365 (or 366 in a leap year). Such bonus shall be paid when such bonuses are paid to other executives of the Company, as applicable. In addition, if the Employment Term ends due to Employee’s death, the Company shall provide for (i) the continuation of Employee’s health benefits for Employee’s dependents at the same level and cost as if Employee were an employee of the Company for a period of twelve (12) months following the date of Employee’s death, provided that if the Company’s obligation to provide such coverage at the same level and cost would cause the Company to incur a tax or other penalty under applicable law (including, without limitation, Section 2716 of the United States Public Health Service Act), the Company shall instead, to the extent permitted by law, provide Employee’s dependents with taxable monthly payments in an amount such that the after-tax value of each payment is equal to the amount of such monthly premium that Employee’s |
11.2. | Termination Without Cause/For Good Reason. Subject to Articles 11.4, 11.5, and 11.6, if the Employment Term ends due to the termination of Employee’s employment with the Company as a result of a termination by the Company without “Cause” (as defined in Appendix A attached hereto) or as a result of a termination by Employee of his employment with the Company for “Good Reason” (as defined in Appendix A attached hereto, except that clause (b) of such definition (pertaining to involuntary relocation) shall not apply to terminations for “Good Reason” under this Article 11.2) and Article 11.3 does not apply, Employee shall be entitled to receive (a) in equal monthly installments over a period of twelve (12) months after his termination, an amount equal to two (2) times the sum of Employee’s 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 months prior to the termination, the amount to be used shall be the highest Base Salary and target bonus, if any, during such 12-month period) (the ‘Non-Protection Period Severance Amount’); (b) continuation of group health, life and disability insurance benefits as if Employee were an employee of the Company, until the earlier of (i) twenty-four (24) months following such termination of employment or (ii) Employee’s eligibility for any such coverage under another employer’s or any other medical plan, provided that if the obligation to provide such coverage at the same level and cost would cause the Company to incur a tax or other penalty under applicable law (including, without limitation, Section 2716 of the United States Public Health Service Act), Employee shall instead, to the extent permitted by law, be provided with taxable monthly payments in an amount such that the after-tax value of each payment is equal to the amount of such monthly premium that Employee would be required to pay to continue such group health coverage for the period specified in this clause (b), regardless of whether such coverage is available to Employee; (c) the cost of reasonable relocation expenses to North America, if Employee still resides in The Netherlands at the time such termination of employment occurs; (d) in accordance with the Prior Employment Contract, with respect to the performance share unit award granted to Employee in March 2012 only (the ‘2012 PSU Grant’), accelerated vesting with respect to a number of shares that will be equal to the product of (i) the number of shares designated as the “Target Amount” in the 2012 PSU Grant agreement, multiplied by (ii) a fraction, the numerator of which is the number of days in the relevant performance period that Employee was employed with the Company, and the denominator of which is the number of days in the relevant performance period, but only to the extent that the application of this clause (d) would result in more shares being vested than would otherwise be vested under the terms of the PSU Agreement for the 2012 PSU Grant; (e) with respect to each grant of shares of restricted common stock of priceline.com (which, for purposes of clarity, are considered to include restricted stock units, performance share units, and other similar equity awards) that is made to Employee after the Effective Date and that remains outstanding as of the end |
11.3. | Termination Without Cause/For Good Reason in Connection with a Change in Control. (a) Subject to Articles 11.3(b), 11.4, 11.5, and 11.6, if the Employment Term ends due to the termination of Employee’s employment with the Company as a result of a termination by the Company without “Cause” or as a result of a termination by Employee of his employment with the Company for “Good Reason” that occurs on or within three years after the consummation of a Change in Control (as defined in Appendix A attached hereto) (the ‘Protection Period’), Employee shall be entitled to receive (i) a lump sum payment on the fifth day after such termination in an amount equal to three (3) times the sum of Employee’s 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 months prior to the termination, the amount to be used shall be the highest Base Salary and target bonus, if any, during such 12-month period) (the ‘Protection Period Severance Amount’); (ii) continuation of group health, life and disability insurance benefits as if Employee were an employee of the Company, until the earlier of (A) thirty-six (36) months following such termination of employment or (B) Employee’s eligibility for any such coverage under another employer’s or any other medical plan, provided that if the obligation to provide such coverage at the same level and cost would cause the Company to incur a tax or other penalty under applicable law (including, without limitation, Section 2716 of the United States Public Health Service Act), Employee shall instead, to the extent permitted by law, be provided with taxable monthly payments in an amount such that the after-tax value of each payment is equal to the amount of such monthly premium that Employee would be required to pay to continue such group health coverage for the period specified in this clause (ii), regardless of whether such coverage is available to Employee; (iii) the cost of reasonable relocation expenses to North America, if Employee still resides in The Netherlands at the time such termination of employment occurs; (iv) in accordance with the Prior Employment Contract, with respect to the 2012 PSU Grant, accelerated vesting with respect to a number of shares that will be equal to the product of (A) the number of shares designated as the “Target Amount” in the 2012 PSU Grant agreement, multiplied by (B) a fraction, the numerator of which |
11.4. | Mitigation. If the Agreement is rescinded pursuant to Article 7:685 of the Dutch Civil Code and the court awards compensation to Employee, or if a court awards any compensation as a result of proceedings on the basis of Article 7:681 of the Dutch Civil Code, the amount of such award shall be deducted from the amount of compensation to which Employee would be entitled pursuant to Article 11.1, Article 11.2 or Article 11.3 of this Agreement, whichever is applicable, in the event of Employee’s termination of employment as a result of his death, a termination without “Cause” or a termination for “Good Reason.” |
11.5. | Good Reason Notice. For purposes of this Agreement, a termination by Employee of his employment with the Company for “Good Reason” means a termination by Employee by written notice given to the priceline.com Board within ninety (90) days after the occurrence of the Good Reason event, unless such circumstances are fully corrected by the Company prior to the date of termination specified in the “Notice of Termination for Good Reason.” A “Notice of Termination for Good Reason” shall mean a notice that indicates the specific termination provision in the definition of “Good Reason” set forth on Appendix A relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for a termination for “Good Reason.” The failure by Employee 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 Employee hereunder or preclude Employee 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 thirty (30) nor more than sixty (60) days after the date such Notice of Termination for Good Reason is given. |
11.6. | Specified Employee Under Section 409A. Notwithstanding anything in this Agreement to the contrary, if Employee is a “specified employee” (within the meaning of Section 409A of the Code) and any payment made pursuant to this Agreement is considered to be a “deferral of compensation” (as such phrase is defined for purposes of Section 409A of the Code) that is payable upon Employee’s “separation from service” (within the meaning of Section 409A of the Code), then the payment date for those payments that would have otherwise been made in the first six months following Employee’s “separation from service” shall be the date that is the first business day of the seventh month after the date of Employee’s “separation from service” (determined in accordance with Section 409A of the Code) or upon Employee’s death, if earlier. In addition, if the event triggering Employee’s right to benefits or payments hereunder is Employee’s termination of employment, but such termination of employment does not constitute a “separation from service” within the meaning of Section 409A of the Code, then the benefits or payments hereunder payable by reason of such termination of employment that are considered to be a “deferral of compensation” under Section 409A of the Code shall not be paid upon such termination of employment, but instead, shall remain an obligation to Employee and shall be paid or provided to Employee upon the first to occur of the following events: (a) Employee’s “separation from service” (within the meaning of Section 409A of the Code); or (b) Employee’s death. |
11.7. | COBRA. Notwithstanding Articles 11.2(b) and 11.3(a)(ii), the first 24 months following the date of Employee’s termination of employment pursuant to Article 11.2 or 11.3 shall be considered to be the period during which Employee shall be eligible for continuation coverage under Section 4980B of the Code, unless an additional period of continuation coverage is required by applicable state law in a state in the United States in which Employee may reside at the time of termination. |
12. | Tax/Social Security Liability for Benefits |
12.1. | If one or more of the above benefits is subject to the levy of income tax and/or social security premiums under the Dutch Income Tax Act (‘Wet op de Loonbelasting’) and/or the Dutch social security laws, the relevant tax and social security premiums shall be borne by Employee. |
12.2. | The parties agree as follows with respect to the “30% tax ruling” that was secured for Employee, effective for the period starting September 1, 2011 and ending August 31, 2016, in accordance with the existing rules and regulations governing such rulings: |
(b) | If and insofar as clause (a) is applicable, Booking.com pays Employee a tax-free allowance for extraterritorial expenses, which equals 30/70 of the salary from current employment thus agreed. |
(c) | Employee is aware of the fact that, in view of the relevant rules and regulations in force, amendment of the agreed salary under clause (a) may affect salary-related payments and benefits, such as pension payments and social security benefits. |
(d) | The 30% tax ruling may apply for a maximum of 10 years (in total). |
12.3. | Notwithstanding any provision of this Agreement to the contrary, if the Employment Term ends due to the termination of Employee’s employment with the Company and any payment or benefit to be paid or provided hereunder would be a “Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided hereunder shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes a Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payments and benefits to be provided to Employee, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). Any determinations required to be made under this Article 12.3 shall be made by priceline.com’s independent accountants, which shall provide detailed supporting calculations both to priceline.com and Employee within 15 business days of the date of termination or such earlier time as is requested by priceline.com, and shall be made at the expense of priceline.com. The fact that Employee’s right to payments or benefits may be reduced by reason of the limitations contained in this Article 12.3 shall not of itself limit or otherwise affect any other rights of Employee under this Agreement. In the event that any payment or benefit intended to be provided hereunder is required to be reduced pursuant to this Article 12.3 and no such payment or benefit qualifies as a “deferral of compensation” within the meaning of and subject to Section 409A of the Code (‘Nonqualified Deferred Compensation’), Employee shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Article 12.3. Priceline.com shall provide Employee with all information reasonably requested by Employee to permit Employee to make such designation. In the event that any payment or benefit intended to be provided hereunder is required to be reduced pursuant to this Article 12.3 and any such payment or benefit constitutes Nonqualified Deferred Compensation or Employee fails to elect an order in which payments or benefits will be reduced pursuant to this Article 12.3, then the reduction shall occur in the following order: (a) reduction of the reimbursement payments described in Article 11.2(c), (b) reduction of any benefits described in 11.2(b) or Section 11.3(a)(ii), whichever is applicable, (c) reduction of cash payments described in Article 11.2(a) or Section 11.3(a)(i), whichever is applicable (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); and (d) cancellation of acceleration of vesting of the 2012 PSU Grant as described in Article 11.2(d). Within any category of payments and benefits (that is, (a), |
12.4. | If, at any time, Employee shall, as a result of foreign tax requirements, have an aggregate income (or wage) tax liability with respect to any payments made under this Agreement that is greater than the income tax liability that Employee would have otherwise had if he were only subject to income tax in the United States for such period, Booking.com or priceline.com will make additional cash payments to Employee so that on an after-tax basis, Employee is made whole for such additional tax liability (the ‘Tax Equalization Payment’) for each tax year affected by this Agreement. The Tax Equalization Payment shall be made within thirty (30) days following the filing of Employee’s tax return for the applicable tax year. |
13. | Confidentiality |
13.1. | Except in the course of employment and consistent with the good faith performance of his duties and responsibilities to the Company, neither during the Employment Term nor upon termination thereof, may Employee inform any third party in any form, directly or indirectly, of any particulars concerning or related to the businesses conducted by the Company that have not otherwise become public knowledge (other than by acts of Employee or his representative in violation of this Agreement), regardless of whether such information includes any reference to its confidential nature or ownership and regardless of how Employee learned of the particulars. |
13.2. | Notwithstanding the provisions of Article 7:650(3), (4) and (5) of the Dutch Civil Code, if Employee violates Article 13.1, Employee will forfeit to the Company an immediately due and payable penalty of EUR 30,000 for each violation, as well as a penalty of EUR 5,000 for each day the violation continues, without prejudice to the Company’s right to claim full compensation instead of such penalties. |
14. | Non-Competition |
14.1. | During the Employment Term and for a period of twelve (12) months following the later of (a) the date on which Employee’s employment with the Company terminates and (b) the date on which Employee ceases to serve on the priceline.com Board, Employee may not, without the priceline.com Board’s prior written consent: |
(a) | engage in any activities that in any way, directly or indirectly, compete with the Company or any of their affiliates anywhere in the world, including, without limitation, the research into, development or provision of any online or call centre accommodation booking or reservation services, nor establish, conduct (alone or with others) or cause the conduct of any competing business, which shall include, but not be limited to, (i) Expedia, Hotels.com, Hotwire, Venere, and Trivago; (ii) Sabre Group and |
(b) | directly or indirectly induce employees of the Company to terminate their employment with the Company; or |
(c) | directly or indirectly, solicit, assist in soliciting, accept or facilitate the acceptance of the custom or business of firms that, or individuals who, were clients or customers of, or had other business relations with, the Company in a manner that competes with the business of the Company and where such firm or individual is one with whom Employee had material dealings at the time of termination, or at any time during the 2 year period preceding termination, even if such solicitation or contact is initiated by such clients, customers or other business relations; |
14.2. | During the Employment Term and for an indefinite period after termination, Employee may not, without the prior written consent of priceline.com: |
(a) | in relation to any contract or arrangement the Company has with any supplier for the supply of goods and services, for the duration of such contract or arrangement, directly or indirectly, interfere with the supply of such goods or services from any supplier, nor, directly or indirectly, induce any supplier to cease or decline to supply such goods or services to the Company; or |
(b) | make any statements, written or oral, which disparage or defame the goodwill or reputation of the Company or any of their directors or senior officers the Company, in public or in a manner that is intended to become public. |
14.3. | During the Employment Term and for an indefinite period after termination, the Company agrees that it shall use commercially reasonable efforts to cause the individual members of the priceline.com Board and the senior executives of the Company to not make any statements, written or oral, which disparage or defame the reputation of Employee in public or in a manner that is intended to become public. |
14.4. | Notwithstanding the provisions of Article 7:650(3), (4) and (5) of the Dutch Civil Code, if Employee violates Article 14.1 or Article 14.2(a) of this Agreement, Employee will forfeit to the Company an immediately due and payable penalty of EUR 30,000 for each violation, as well as a penalty of EUR 5,000 for each day the |
14.5. | Upon each breach of Article 15.1 of this Agreement, the period referred to therein will be extended by the duration of such breach. |
15. | Sidelines |
15.1. | During the Employment Term, without the prior written consent of the priceline.com Board, Employee will not perform any other work whether paid or unpaid, nor will Employee, alone or with others, directly or indirectly, establish or conduct a business that is competitive with the Company’s business, whatever its form, or take any financial interest in or perform work for such business, whether or not for consideration. |
15.2. | During the Employment Term, Employee must refrain from undertaking or holding any sidelines or additional posts, such as committee work, managerial or other activities for organizations of an idealistic, cultural, sporting, political or other nature, whether or not for consideration, without the prior written consent of the priceline.com Board. Notwithstanding the foregoing, unless the priceline.com Board shall determine otherwise, Employee may serve as a member of the board of directors of DeVry, Inc. |
16. | Return of Property |
16.1. | Upon the end of the Employment Term, Employee shall immediately return to the Company all property belonging to the Company, including materials, documents and information copied in any form whatsoever. |
17. | Intellectual and Industrial Property Rights |
17.1. | All intellectual property rights, including, but not limited to, patent rights, design rights, copyrights and neighbouring rights, database rights, trademark rights, chip rights, trade name rights and know how, ensuing, during or after this employment contract, in The Netherlands or abroad, from the work performed by Employee under this Agreement (collectively: ‘Intellectual Property Rights’) will exclusively vest in priceline.com or Booking.com, as applicable. |
17.2. | Insofar as any Intellectual Property Rights are not vested in priceline.com or Booking.com by operation of law, Employee covenants that Employee, at first request of priceline.com or Booking.com, will transfer to priceline.com or Booking.com, as applicable, and, insofar as possible, hereby transfers those rights to priceline.com or Booking.com, as applicable, which transfer is hereby accepted by priceline.com and Booking.com. |
17.3. | Insofar as any Intellectual Property Rights are not capable of being transferred from Employee to priceline.com or Booking.com, as applicable, Employee hereby grants priceline.com or Booking.com, as applicable, the exclusive, royalty free, worldwide, perpetual right, with the right to grant sublicenses, to use |
17.4. | Insofar as any personal rights vest in Employee, and insofar as permitted by law, Employee hereby waives all of Employee’s personal rights, including, without limitation, the right to have one’s name stated pursuant to the Dutch Copyright Act 1912 (‘Auteurswet 1912’). |
17.5. | Employee shall promptly disclose all works, inventions, information, Intellectual Property Rights and other results from the work performed by Employee under this Agreement to priceline.com and Booking.com. |
17.6. | Employee shall upon the request of priceline.com or Booking.com, during or after the Employment Term, perform all acts that may be necessary in order to record the Intellectual Property Rights in the name of priceline.com or Booking.com, as applicable, with any competent authority in the world. Reasonable costs thereof will be borne by priceline.com or Booking.com. |
17.7. | In case Employee, for any reason, is unable to provide the cooperation in accordance with Articles 17.2 and 17.6 of this Agreement, Employee hereby grants each of priceline.com and Booking.com irrevocable power of attorney to represent Employee with respect to the assignment and registration of Intellectual Property Rights referred to in Articles 17.2 and 17.6 of this Agreement. |
17.8. | Employee acknowledges that Employee’s salary includes reasonable compensation for the loss of intellectual and industrial property rights, as provided above in this Article 17. |
17.9. | Simultaneously with entering into this Agreement, Employee agrees that he will also enter into priceline.com’s standard form of Confidentiality and Assignment Agreement. |
18. | Indemnification |
18.1. | Priceline.com, and each of its subsidiaries, if applicable, shall each indemnify and hold harmless Employee to the fullest extent permitted by law for any action or inaction of Employee while serving as an officer and director of priceline.com and/or such subsidiary, or, at the Company’s request, as an officer or director of any other entity or as a fiduciary of any benefit plan. Priceline.com shall each cover Employee 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 entity covers its other executive officers and directors. |
19. | Applicable Law |
19.1. | This Agreement and its Appendix A shall be governed by the laws of The Netherlands; provided, however, that upon Employee’s relocation to the United States as Chief Executive Officer of priceline.com, the parties agree that this Agreement and its Appendix A, if still in effect, shall be governed by the laws of the State of Connecticut and the following provisions shall no longer apply: Articles 1, 3, 10, 12.1 and 12.2. |
20. | Complete Agreement |
20.1. | Except as expressly set forth herein, this Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, including the Prior Employment Contract, which may have related to the subject matter hereof in any way; provided, however, that this Agreement shall not supersede any equity award agreement, clawback policy, or non-competition, non-solicitation or confidentiality agreement that Employee entered into with the Company prior to the Effective Date Furthermore, any agreement entered into with the Company after the Effective Date shall not supersede this Agreement unless such subsequent agreement expressly states that it supersedes this Agreement. |
20.2. | Employee hereby confirms that, as of the date hereof, he is not subject to a non-competition, non-solicitation and/or any other agreement with any previous employer that would prohibit, restrict or otherwise limit in any way whatsoever Employee’s ability to be employed by the Company and/or to perform any activities for the Company (an ‘Impermissible Restrictive Covenant’). If the Company discovers after the date hereof that Employee is subject to an Impermissible Restrictive Covenant, the Company reserves the right to terminate Employee’s employment with the Company for “cause” as defined in article 7:678 of the Dutch Civil Code, effective immediately. |
21. | Section 409A of the U.S. Internal Revenue Code |
21.1. | Notwithstanding the foregoing, if any reimbursements or in-kind benefits provided by priceline.com or Booking.com under this Agreement would constitute deferred compensation for purposes of Section 409A of the Code, such reimbursements or in-kind benefits shall be subject to the following rules: (a) the amounts to be reimbursed, or the in-kind benefits to be provided, shall be determined pursuant to the terms of the applicable benefit plan, policy or agreement and shall be limited to Employee’s lifetime and the lifetime of Employee’s eligible dependents; (b) the amounts eligible for reimbursement, or the in-kind benefits provided, during any calendar year may not affect the expenses eligible for reimbursement, or the in-kind benefits provided, in any other calendar year; (c) any reimbursement of an eligible expense shall be made on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (d) Employee’s right to an in-kind benefit or reimbursement is not subject to liquidation or exchange for cash or another benefit. |
21.2. | Each payment under this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A of the Code. To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Code so that the income inclusion provisions of Section 409A(a)(1) do not apply to Employee. This Agreement shall be administered in a manner consistent with this intent. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any regulations, or any other formal guidance, promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. |
22. | Assignment |
22.1. | This Agreement shall not be assignable by Employee. This Agreement shall be assignable by priceline.com or Booking.com only to an acquirer of all or substantially all of the assets of priceline.com or Booking.com, provided such acquirer promptly assumes all of the obligations hereunder of priceline.com or Booking.com in a writing delivered to Employee and otherwise complies with the provisions hereof with regard to such assumption. |
23. | Survivorship |
23.1. | The respective rights and obligations of the parties hereunder shall survive any termination of Executive’s employment to the extent necessary to the agreed preservation of such rights and obligations. |
1. | ACKNOWLEDGEMENTS |
2. | NON-COMPETITION AND NON-SOLICITATION |
3. | NOTIFICATION OF SUBSEQUENT EMPLOYER |
4. | REMEDIES AND INJUNCTIVE RELIEF |
5. | CONSIDERATION |
6. | MISCELLANEOUS |
(ii) | if to the Employee, to the Employee’s address on the books and records of the Company from time to time |