Employment Agreement - priceline.com Inc. and Brett Keller
[LOGO] priceline.com(SM)
TO: Brett Keller
DATE: December 1, 2001
FROM: Jeff Boyd
Congratulations on your promotion to Senior Vice President - Chief Marketing
Officer, effective January 2, 2002. As Senior Vice President - Chief Marketing
Officer, you will report to the President and Chief Operating Officer. As a
result of your promotion we are pleased to increase your base salary to $200,000
and issue a stock option grant in the amount of 200,000 shares.
Your strike price will be $4.20, based on the NASDAQ close on November 30, 2001,
(grant date will be December 1, 2001). You will vest one-third of your options
on December 1, 2002, and the balance monthly thereafter over 24 (twenty-four)
months for a total three-year vesting schedule. Stock option grants will be
posted on our plan administrator's (AST) web site within 60 days of the grant
award.
In addition, upon the occurrence of a Change in Control (as such term is defined
in the 1999 Omnibus Plan), your options will become fully exercisable and vested
on the date that is six (6) months from the date of the Change in Control;
PROVIDED that you are (a) employed by the Company on the date of the Change in
Control and (b) employed by the Company on the date that is six (6) months from
the date of the Change in Control. In the event that you are terminated by the
Company without Cause (a) in anticipation of a Change in Control, or (b) within
six (6) months following a Change in Control, your options will become fully
exercisable and vested and will remain exercisable until the date that is six
(6) months after such termination, on which date they shall expire.
We ask that you keep this award confidential since it is part of your total
compensation and unique to you.
Please be aware that this is an additional grant and does not affect any option
grants that you received earlier or the vesting schedule for those shares. Also
the foregoing vesting schedule, including the accelerated vesting in the event
of a Change in Control, is different from the vesting schedule provided for in
the 1999 Omnibus Plan and, as a result, is subject to the approval of the
Compensation Committee.
In addition, the company will provide for severance protection in the event of
termination without cause or for good reason as follows:
If (i) you terminate your employment with the priceline.com Incorporated
(the "Company") for Good Reason or (ii) your employment with the Company is
terminated by the Company without Cause, you shall be entitled to receive, (A)
over a period of twelve (12) months after such
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termination an amount equal to one (1) times the sum of your Base Salary and
target bonus (excluding any retention related incentive), 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 (excluding any retention related incentive), if any, during
such twelve (12) month period); (B) any Accrued Amounts (as defined below) at
the date of termination; (C) any other amounts or benefits owing to you under
the then applicable employee benefit, long term incentive or equity plans and
programs of the Company, which shall be paid or treated in accordance with the
terms of such plans and programs; (D) continuation of the benefits (including
without limitation to health, life, disability and pension) for twelve (12)
months after employment is terminated as if you were an employee of the Company
for twelve (12) months, and (E) if a bonus plan is in place, the product of (x)
the target annual bonus for the fiscal year of your termination, multiplied by
(y) a fraction, the numerator of which is the number of days of the current
fiscal year during which you were 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.
A termination for Good Reason means a termination by you 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 below).
A "NOTICE OF TERMINATION FOR GOOD REASON" shall mean a notice that shall
indicate the specific termination provision specified in the definition of Good
Reason below relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination for Good Reason. Your
failure 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
of your rights hereunder or preclude you from asserting such fact or
circumstance in enforcing your 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.
"ACCRUED AMOUNTS" shall mean 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.
"CAUSE," as used in this Agreement, shall be limited to (i) willful
misconduct by you with regard to the Company which has a material adverse effect
on the Company; (ii) your willful refusal to attempt to follow the proper
written direction of the Board of Directors, the Chief Executive Officer, or the
Chief Operating Officer of the Company, provided that the foregoing refusal
shall not be "Cause" if you in good faith believe that such direction is
illegal, unethical or immoral and promptly so notify the Board, the Chief
Executive Officer, or the Chief Operating Officer of the Company (whichever is
applicable); (iii) substantial and continuing willful refusal by you to attempt
to perform the duties required of you 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 you by the Board, Chief
Executive Officer, or the Chief Operating Officer of the Company which
specifically identifies the manner in which it is believed that you have
substantially and continually refused to attempt to perform your duties
hereunder; or (iv) your being convicted of a felony (other than a felony
involving a traffic violation or as a result of vicarious liability). For
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purposes of this paragraph, no act, or failure to act, on your part shall be
considered "willful" unless done or omitted to be done, by you not in good faith
and without reasonable belief that your action or omission was in the best
interests of the Company.
"GOOD REASON," as used in this Agreement, shall mean the occurrence or
failure to cause the occurrence, as the case may be, without your express
written consent, of any of the following circumstances: (i) material demotion
(except in connection with the termination of your employment for Cause or as a
result of your death, or temporarily as a result of your illness or other
absence), (ii) 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 your residence at the time of
relocation; (iii) any material breach by the Company of any provision of this
Agreement; or (iv) 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 you upon the assignee becoming such, the
obligations of the Company hereunder.
Once again, congratulations on your new role. I am confident that this will be a
challenging and rewarding opportunity for you.
Warm regards,
/s/ Jeff Boyd
Jeff Boyd