Exhibit 10.7.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of July __, 1998 by and between
xxxxxxxxx.xxx LLC, a Delaware limited liability company ("PriceLine") and Xx.
Xxxxxxx Xxxxx, a resident of the State of Connecticut (the "Employee").
WHEREAS, PriceLine desires that the Employee serve, and the Employee
desires to serve, as the Executive Vice President of PriceLine and the President
of PriceLine Travel, Inc. ("PriceLine Travel"), under the terms and conditions
of this Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the parties
agree as follows:
1. EMPLOYMENT.
(a) PriceLine hereby agrees to employ the Employee, and the Employee
hereby agrees to serve, as the Executive Vice President of PriceLine and the
President of PriceLine Travel, upon the terms and subject to the conditions set
forth herein.
(b) During the Term (as defined herein), the Employee shall serve as
the Executive Vice President of PriceLine and the President of PriceLine Travel
and shall have such responsibilities, duties and authority consistent with such
positions as may from time to time be determined by the board of managers of
PriceLine.
(c) During the Term, the Employee shall diligently and faithfully
serve PriceLine and PriceLine Travel and shall devote substantially all of his
working time and efforts to the business and affairs of PriceLine and PriceLine
Travel other than any such time that the Employee devotes to fulfilling his
obligations under his consulting agreement with NewSub Services, Inc.
2. TERM. Subject to Section 5 hereof, the term of the employment by
PriceLine of the Employee pursuant to this Agreement (the "Term") is for
an initial period commencing on the date hereof and terminating on December 31,
2000.
3. COMPENSATION.
(a) BASE SALARY. In partial consideration of the Employee's services
to be rendered pursuant hereto and the Employee's agreement to the covenants and
restrictions set forth in Section 8 hereof, PriceLine shall pay to the Employee,
effective as of the date hereof, an annual base salary of $250,000 (the "Base
Salary"), such salary to be payable to the employee in semi-monthly installments
in accordance with PriceLine's customary payroll practices.
(b) AIRLINE PARTICIPATION BONUS.
(i) In partial consideration for the services to be rendered
pursuant hereto and the Employee's agreement to the covenants and restrictions
set forth in Section 8 hereof, PriceLine shall pay Employee a cash bonus (the
"Airline Participation Bonus") in the amount of:
(A) $12,500 for each domestic air carrier that is
participating in PriceLine's xxxxxxxxx.xxx website ("xxxxxxxxx.xxx") within 180
days of the day on which the 5,000th airline ticket is sold through
xxxxxxxxx.xxx (the "Launch Date") and an additional $12,500 in the event that at
least 10,000 tickets on such air carrier are sold through xxxxxxxxx.xxx during
the one-year period commencing on the Launch Date and ending on the first
anniversary of the Launch Date; and
(B) $5,000 for each consolidator and foreign flag air
carrier that is participating in xxxxxxxxx.xxx within 180 days of the Launch
Date and an additional $5,000 in the event that at least 3,000 tickets from any
such consolidator or 2,500 tickets on any such air carrier, as the case may be,
are sold through xxxxxxxxx.xxx during the one-year period commencing on the
Launch Date and ending on the first anniversary of the Launch Date.
(ii) Subject to PriceLine's right to withhold any Airline
Participation Bonus payment to repay any outstanding amount borrowed by Employee
pursuant to Section 3(b)(iii), each Airline Participation Bonus payable pursuant
to this Section 3(b) shall be payable within ten days of meeting the respective
ticket sales threshold amount.
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(iii) Employee shall be permitted to borrow against the Airline
Participation Bonus an amount not to exceed the lesser of (A) $200,000 and (B)
an amount equal to the amount of the unpaid Airline Participation Bonus payments
Employee would be entitled to receive if all of the airlines and consolidators
participating in xxxxxxxxx.xxx on the Launch Date exceeded their respective
ticket sales threshold amounts (the "Loan"). Interest shall accrue on any
outstanding amount of the Loan at the rate of 10% compounded semi-annually
("Interest"). Notwithstanding anything to the contrary in this Agreement,
PriceLine shall be permitted to repay any outstanding amount of the Loan and the
Interest by withholding (A) Airline Participation Bonus payments and (B) any
payments to be made pursuant to Section 5 of this Agreement. Employee shall be
required to repay any amount of the Loan and Interest that is outstanding on
December 31, 1999.
(c) COMPENSATORY BONUS. In the event that Employee's combined cash
compensation from his CAP Systems Consulting Agreement dated February 1, 1998
and from PriceLine, including the Airline Participation Bonus, is less than
$500,000 per annum (the "Current Compensation"), PriceLine shall pay Employee a
compensatory bonus (the "Compensatory Bonus") equal to 0.5% of the amount by
which PriceLine's total annual revenues (calculated on a calendar year basis)
exceed $50,000,000; PROVIDED, HOWEVER, that the Compensatory Bonus shall not
exceed the lesser of (i) $250,000 and (ii) the amount by which the Employee's
Current Compensation is less than $500,000.
(d) ISSUANCE OF PRICELINE UNITS. In partial consideration for the
services to be rendered pursuant hereto and the Employee's agreement to the
covenants and restrictions set forth in Section 8 hereof, PriceLine shall issue
and deliver to the Employee on the date of this Agreement a certificate or
certificates representing 1,200,000 common equity units of PriceLine Units
("PriceLine Units") (representing approximately 1.75% of PriceLine's estimated
capitalization on the Launch Date), free and clear of any lien, encumbrance,
security interest, mortgage, pledge, charge, claim, option, right of first
refusal or call, or restriction of any kind, other than the restrictions
provided for herein. Upon such delivery of PriceLine Units, the Employee shall
agree in writing to be bound by the terms and conditions of the Limited
Liability Company Agreement dated as of July 18, 1997 by and among PriceLine and
its members (as the same may be amended through the time of exercise or any
successor agreement) and any other agreement pertaining to the rights of equity
holders of PriceLine, and will, if requested by PriceLine, execute a separate
statement to such effect.
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(e) PRICELINE OPTION.
(i) In partial consideration for the services to be rendered
pursuant hereto and the Employee's agreement to the covenants and restrictions
set forth in Section 8 hereof, PriceLine hereby grants to the Employee,
effective as of the date hereof, an option (the "Option") to purchase, on the
terms set forth in this Section 3(e), up to 1,750,000 PriceLine Units, which
represent approximately 2.55% of PriceLine's estimated capitalization on the
Launch Date.
(ii) The Option is not intended to qualify as an incentive stock
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
(iii) The Option is exercisable at an aggregate exercise
price of $1,750,000, or a per security exercise price of $1.00 per PriceLine
Unit.
(iv) Subject to Section 5 hereof, the Option shall become
exercisable as to (A) 750,000 of the PriceLine Units underlying the Option on
the Launch Date; (B) 500,000 of the PriceLine Units underlying the Option on the
first anniversary of the Launch Date; and (C) 500,000 of the PriceLine Units
underlying the Option on the second anniversary of the Launch Date.
(v) Except as otherwise specifically provided for in this
Agreement, the Option shall be governed by the terms of the Omnibus PriceLine
Option Plan and related Option Agreement.
(f) BENEFITS.
(i) During the Term, PriceLine shall provide the Employee with
health, welfare and insurance benefits to the extent and on the same terms as it
provides such benefits to its executive officers; PROVIDED, HOWEVER, that such
benefits shall be provided on terms no less favorable than the terms of the
benefits the Employee received while he was employed by NewSub Services, Inc., a
Connecticut corporation.
(ii) Notwithstanding anything to the contrary contained herein,
upon termination of this Agreement, Employee shall have the right to continue to
participate in PriceLine's medical plan, at a cost equal to PriceLine's average
capita cost for health insurance, for a period of time equal to the product
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of five multiplied by the number of years, including partial years, Employee was
employed by PriceLine (for purposes of this calculation, Employee shall be
deemed to have commenced employment with PriceLine on January 1, 1998);
PROVIDED, HOWEVER, that such right shall terminate if Employee accepts other
full-time employment with an entity that offers the Employee health insurance
that is comparable to the health insurance provided to the Employee by
PriceLine.
(iii) PriceLine will purchase and maintain during the Term a
term life policy for Employee in the face amount equal to 3.5 times the Base
Salary; PROVIDED, HOWEVER, that PriceLine shall not be required to pay in excess
of $25,000 per annum with respect to such policy.
(iv) The Employee also shall be entitled to participate in and
receive any fringe benefits or perquisites which may become available to
PriceLine's executive officers.
4. BUSINESS EXPENSES. The Employee shall be reimbursed for all
reasonable direct, out-of-pocket business expenses incurred by him in connection
with his employment (including, without limitation, expenses for travel and
entertainment incurred in conducting or promoting business for PriceLine and
PriceLine Travel and home office expenses) upon timely submission by the
Employee of receipts and other documentation as required by the Code and in
accordance with the normal expense reimbursement policies of PriceLine;
PROVIDED, HOWEVER, that Employee shall not be entitled to an automobile
allowance.
5. TERMINATION.
(a) DEATH. The employment by PriceLine of the Employee pursuant to
this Agreement shall be terminated upon the death of the Employee. In the event
that this Agreement is terminated pursuant to this Section 5(a), (i) the
Employee's spouse or heirs shall be entitled to (A) the Base Salary and benefits
to be paid or provided to the Employee under this Agreement through the Date of
Termination (as defined herein), (B) the Base Salary and benefits to be paid or
provided to the Employee under this Agreement for the period commencing on the
day after the Date of Termination and ending on the later of (x) the six (6)
month anniversary of the Date of Termination or (y) the first anniversary of the
date of this Agreement, (C) any Airline Participation Bonus or Compensatory
Bonus payments Employee would have been entitled to receive under this Agree-
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ment if the Employee had not been terminated pursuant to this Section 5(a) and
(ii) the Employee's executor, administrator or other person entitled by law to
his rights under the Option shall be entitled to exercise the Option in
accordance with the terms set forth in Section 3 as though the Employee had not
been terminated and vested Options shall be exercisable at any time prior to the
later of (A) one year after the Date of Termination and (B) ninety days after
the third anniversary of the date of this Agreement. To the extent not
exercisable pursuant to Section 3 hereof or this Section 5(a), the Option shall
immediately terminate on the Date of Termination.
(b) DISABILITY. The employment by PriceLine of the Employee pursuant
to this Agreement may be terminated by written notice to the Employee at the
option of PriceLine, in the event that the Employee becomes unable to perform
his duties and responsibilities by reason of physical or mental illness or
accident for any six (6) consecutive month period. In the event that this
Agreement is terminated by PriceLine pursuant to this Section 5(b), the Employee
shall be entitled to (i) the Base Salary and benefits to be paid or provided to
the Employee under this Agreement through the Date of Termination; (ii) the Base
Salary and benefits to be paid or provided to the Employee under this Agreement
for the period commencing on the day after the Date of Termination and ending on
the later of (A) the six (6) month anniversary of the Date of Termination or (B)
the first anniversary date of this Agreement; (iii) any Airline Participation
Bonus or Compensatory Bonus payments Employee would have been entitled to
receive under this Agreement if the Employee had not been terminated pursuant to
this Section 5(b) and (iv) exercise the Option in accordance with the terms set
forth in Section 3 as though the Employee had not been terminated and vested
Options shall be exercisable at any time prior to the later of (A) one year
after the Date of Termination and (B) ninety days after the third anniversary of
the date of this Agreement. To the extent not exercisable pursuant to Section 3
hereof or this Section 5(b), the Option shall immediately terminate on the Date
of Termination.
(c) BY PRICELINE FOR CAUSE. This Agreement may be terminated by
PriceLine by written notice to the Employee ("Notice of Termination") upon the
occurrence of any of the following events (each of which shall constitute
"Cause" for termination): (i) the commission by the Employee of any act of gross
negligence, incompetence, fraud or dishonesty causing harm to PriceLine; (ii)
the conviction of the Employee of a felony; (iii) intentional obtainment by the
Employee of personal gain, profit or enrichment at the expense of PriceLine or
from any transaction in which the Employee has an interest which is adverse to
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the interest of PriceLine, unless the Employee shall have obtained the prior
written consent of the board of managers of PriceLine; (iv) acts by the Employee
in a manner which is materially detrimental or damaging to PriceLine's
reputation, business operations or relations with its employees, suppliers or
customers; or (v) any material breach by the Employee of this Agreement,
including, without limitation, a breach of Section 1 or 8 hereof or the
Confidentiality Agreement (as defined herein), which breach, if able to be
corrected, remains uncorrected for a period of thirty (30) days after receipt by
the Employee of written notice from PriceLine setting forth the breach;
PROVIDED, HOWEVER, Cause shall expressly not include the following: (x) bad
judgement or negligence on behalf of the Employee and (y) an act or commission
believed in good faith by the Employee not to be contrary to the interests of
PriceLine. In the event the employment by PriceLine of the Employee is
terminated pursuant to this Section 5(c), the Employee shall be entitled to the
Base Salary and benefits to be paid or provided to the Employee under this
Agreement through the Date of Termination and the Option, whether or not then
exercisable, may not be exercised at any time on or after the Date of
Termination.
(d) BY PRICELINE WITHOUT CAUSE. The employment by PriceLine of the
Employee pursuant to this Agreement may be terminated by PriceLine at any time
without Cause by delivery of a Notice of Termination to the Employee. In the
event that the employment by PriceLine of the Employee pursuant to this
Agreement is terminated by PriceLine pursuant to this Section 5(d), the Employee
shall be entitled to (i) the Base Salary, Airline Participation Bonus,
Compensatory Bonus and benefits to be paid or provided to the Employee under
this Agreement through the Date of Termination; (ii) the Base Salary, Airline
Participation Bonus, Compensatory Bonus and benefits to be paid to the Employee
under this Agreement for the period commencing on the day after the Date of
Termination and ending on the later of (x) the first anniversary of the Date of
Termination or (y) December 31, 2000, payable in monthly installments; and
(iii) exercise the Option in accordance with the terms set forth in Section 3 as
though the Employee had not been terminated and vested Options shall be
exercisable at any time prior to ninety days after the third anniversary of the
date of this Agreement.
(e) BY THE EMPLOYEE. The employment of the Employee by PriceLine
pursuant to this Agreement may be terminated by the Employee at any time by
delivery of a written notice of resignation to PriceLine ("Notice of
Resignation"). In the event the employment by PriceLine of the Employee pursu-
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ant to this Agreement is terminated by the Employee pursuant to this Section
5(e), the Employee shall be entitled to (i) the Base Salary and benefits to be
paid or provided to the Employee under this Agreement through the Date of
Termination and (ii) exercise the Option, as to the number and type of
securities for which the Option then would be exercisable, at any time prior to
90 days after the Date of Termination.
(f) DATE OF TERMINATION. The Employee's Date of Termination shall be
(i) if the Employee's employment by PriceLine is terminated pursuant to Section
5(a) hereof, the date of his death, (ii) if the Employee's employment by
PriceLine is terminated pursuant to Section 5(b) hereof, the last day the
Employee worked, (iii) if the Employee's employment by PriceLine is terminated
pursuant to Section 5(c) or 5(d) hereof, the date on which a Notice of
Termination is given and (iv) if the Employee's employment by PriceLine is
terminated pursuant to Section 5(e) hereof, the date on which a Notice of
Resignation is given.
6. REPRESENTATIONS.
(a) PriceLine represents and warrants that (i) this Agreement has
been authorized by all necessary corporate action of PriceLine and is a valid
and binding agreement of PriceLine enforceable against it in accordance with its
terms and (ii) all PriceLine Units which may be issued pursuant to this
Agreement shall be, when issued in accordance with the terms of this Agreement,
duly authorized, validly issued, fully paid and nonassessable and free of any
preemptive rights in respect thereto.
(b) The Employee represents and warrants that he is not a party to
any agreement or instrument which would prevent him from entering into or
performing his duties in any way under this Agreement and that this Agreement is
a valid and binding agreement of the Employee enforceable against him in
accordance with its terms.
7. LIMITATION ON TRANSFER OF SECURITIES.
(a) The Employee shall not, directly or indirectly, offer, transfer,
sell, assign, pledge, encumber, hypothecate or otherwise dispose of all or part
of the securities issued pursuant to this Agreement or solicit any offers to
purchase or otherwise acquire or take a pledge of all or part of such securities
without the prior written consent of PriceLine; PROVIDED, HOWEVER, that the
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foregoing restrictions shall not apply if PriceLine that has issued common
equity securities in a public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Act"), other than a
registration statement filed on Form S-8, or any successor form thereto, or any
other applicable form with respect to the issuance of common equity securities
to be issued or granted to employees, managers, officers or directors of
PriceLine, in an amount not to exceed 15% of the common equity securities of the
issuer then outstanding on a fully diluted basis.
(b) In the event of any purported or attempted transfer by the
Employee of all or part of the securities issued pursuant to this Agreement that
does not comply with this Agreement, the purported transferee or successor shall
not be deemed to be a security holder of PriceLine for any purpose and shall not
be entitled to any of the rights of a security holder, including, without
limitation, the right to vote or to receive any dividends or other distributions
on or with respect to such securities.
(c) Notwithstanding the foregoing, no provision hereof is intended to
prohibit the transfer of the securities issued pursuant to this Agreement (i)
upon the death of the Employee, by operation of laws of inheritance and descent
to the Employee's personal representatives, executors, administrators,
testamentary trustees, legatees or beneficiaries or (ii) by gift to a spouse,
child, other descendant or any other United States citizen, PROVIDED that such
person is reasonably satisfactory to PriceLine, or to a trust established for
the benefit of such person (each transferee referred to in clause (i) or (ii)
being a "Permitted Transferee"); and PROVIDED, FURTHER, that (i) any and all
such Permitted Transferees shall agree in writing to be bound by the terms of
this Agreement, a copy of which writing shall be filed with the issuer of such
securities and (ii) any such securities so transferred shall continue to be
subject to this Agreement.
(d) The Employee acknowledges that he is aware that there are
substantial restrictions on the transferability of the securities issued
pursuant to this Agreement. In addition to the restrictions set forth above,
since the securities issued pursuant to this Agreement will not be, and the
Employee has no right to require that such securities be, registered under the
Act, such securities may not be sold unless such sale is exempt from such
registration under the Act. The undersigned further acknowledges that the
Employee shall be responsible for compliance with all conditions on transfer
imposed by any state "blue sky" or securities law administrator.
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(e) Each certificate representing the securities (other than the
PriceLine Option) issued to the Employee pursuant to this Agreement shall bear
substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
ENCUMBRANCE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE
PROVISIONS OF THE EMPLOYMENT AGREEMENT DATED AS OF JULY __, 1998. IN
ADDITION TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SUCH AGREEMENT,
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, ENCUMBRANCE, HYPOTHECATION OR
OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND
REGULATIONS IN EFFECT THEREUNDER (THE "ACT"), AND ALL APPLICABLE STATE
SECURITIES OR "BLUE SKY" LAWS OR (B) IF SUCH TRANSFER, SALE,
ASSIGNMENT, PLEDGE, ENCUMBRANCE, HYPOTHECATION OR OTHER DISPOSITION IS
EXEMPT FROM THE PROVISIONS OF THE ACT AND, IF REQUIRED BY THE COMPANY,
THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL FOR THE
HOLDER, WHICH OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO
THE COMPANY, TO THAT EFFECT. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE
PROVISIONS OF THE AFORESAID AGREEMENT.
8. CONFIDENTIALITY; NON-COMPETITION. As a condition to PriceLine's
willingness to enter into this Agreement and in partial consideration of the
grant of the Option, the Employee agrees to the covenants and restrictions set
forth in this Section 8.
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(a) The Employee agrees that, during the Term and for a period of two
(2) years thereafter, he shall not, directly or indirectly, induce or solicit
(or authorize or assist in the taking of any such actions by any third party)
any employee or consultant of PriceLine or PriceLine Travel or any of their
affiliates to leave his or her business association with such entity.
(b) The Employee acknowledges and agrees that, during the course of
the provision of the Employee's services to PriceLine and PriceLine Travel, the
Employee may be exposed to confidential, proprietary or sensitive data and
information concerning the business and affairs of PriceLine and PriceLine
Travel, and that all such data and information constitutes a protectable
business interest of PriceLine and PriceLine Travel. In furtherance of such
business interest, the Employee is contemporaneously herewith executing and
delivering to PriceLine the standard consultant confidentiality agreement
PriceLine (the "Confidentiality Agreement").
(c) The Employee agrees that he will not at any time during the Term
and, (i) for a period of one (1) year following the Date of Termination,
directly or indirectly, own any interest in, operate, join, control or
participate as a director, stockholder, owner, partner, principal, officer or
agent of, enter into the employment of, act as a consultant to, or perform any
services for, any entity that is engaged anywhere in the United States of
America in a business substantially similar to PriceLine or PriceLine Travel
whereby customers are directed to make an offer to purchase goods and services
and such demand is provided to potential sellers. Notwithstanding anything
herein to the contrary, this Section 8 shall not prevent the Employee from
acquiring securities representing not more than one percent (1%) of the
outstanding voting securities of any publicly held corporation. It is the
desire and intent of the parties that the provisions of this Section 8(c) shall
be enforced to the fullest extent permitted under applicable law. If all or
part of this Section 8(c) is held invalid, illegal or incapable of being
enforced by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect. If any part of
this Section 8(c) is ultimately determined to be excessively broad as to
duration, scope, activity or subject, such part will be construed by limiting
and reducing it so as to be enforceable to the maximum extent compatible with
applicable law.
(d) The Employee acknowledges and agrees that each of the covenants
set forth in this Section 8 and in the Confidentiality Agreement are reasonable
and necessary for the protection of PriceLine's and PriceLine Travel's
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business interests, that irreparable injury will result to PriceLine and
PriceLine Travel if the Employee breaches any of the terms of said covenants,
and that in the event of the Employee's actual or threatened breach of any such
covenants, PriceLine and PriceLine Travel will have no adequate remedy at law.
The Employee accordingly agrees that in the event of any actual or threatened
breach by the Employee of any of said covenants, PriceLine and PriceLine Travel
shall be entitled to immediate injunctive and other equitable relief without
bond and without the necessity of showing actual monetary damages.
Notwithstanding the provisions of Section 15 hereof, such equitable relief may
be sought in any court of competent jurisdiction. Nothing contained herein
shall be construed as prohibiting PriceLine from pursuing any other remedies
available to it for such breach or threatened breach, including the recovery of
any damages which it is able to prove.
(e) The provisions of this Section 8 shall survive the expiration or
termination of this Agreement, and any of the arrangements contained herein, and
shall be binding upon the Employee's corporate or personal successors and
assigns.
9. SUCCESSORS; BINDING AGREEMENT. This Agreement is a personal
contract and the rights and interests of the Employee hereunder may not be sold,
transferred, assigned, pledged, encumbered or hypothecated by him, except as
otherwise expressly permitted by the provisions of this Agreement. This
Agreement shall inure to the benefit of the parties hereto and their respective
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
10. ENTIRE AGREEMENT. This Agreement and the Confidentiality
Agreement contain all of the understandings between the parties hereto
pertaining to the matters referred to herein, and supersedes any other
undertakings and agreements, whether oral or in writing, previously entered into
by them with respect thereto. The Employee represents that, in executing this
Agreement, he does not rely and has not relied upon any representation or
statement not set forth herein made by PriceLine with regard to the subject
matter or effect of this Agreement or otherwise.
11. AMENDMENT, MODIFICATION AND WAIVER. No provision of this
Agreement may be amended, modified or waived unless such amendment, modifi-
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cation or waiver is agreed to in writing, signed by the Employee and a duly
authorized officer of PriceLine. No waiver by any party hereto of any breach by
another party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same time, any prior time or any
subsequent time.
12. NOTICES. Any notices, requests, demands, waivers or other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed given when delivered personally, sent by courier or
facsimile or registered or certified mail, postage prepaid, return receipt
requested, by reputable overnight courier (receipt of which is confirmed)
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice hereunder in writing:
To the Employee at:
Xx. Xxxxxxx Xxxxx
Five Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telecopier: (000) 000-0000
To PriceLine at:
xxxxxxxxx.xxx LLC
Five Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telecopier: (000) 000-0000
Attention: Mr. Xxx Xxxxxx
All such notices, requests, demands, waivers and communications shall be deemed
to have been given on the date on which so hand-delivered, on the third business
day following the date on which so mailed, on the next business day following
the date on which delivered to such overnight courier and on the date of such
facsimile transmission and confirmation, except for a notice of change of person
or address, which shall be effective only upon receipt thereof.
13. SEVERABILITY. If for any reason any provision of this Agreement
shall be held invalid, such invalidity shall not affect any other provision of
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this Agreement not so held invalid, and all other such provisions shall to the
full extent consistent with law continue in full force and effect. If any such
provision shall be held invalid in part, such invalidity shall in no way affect
the rest of such provision which, together with all other provisions of this
Agreement, shall likewise to the full extent consistent with law continue in
full force and effect.
14. SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
15. GOVERNING LAW; JURISDICTION; ARBITRATION.
(a) This Agreement will be governed by and construed in accordance
with the laws of the State of Connecticut, without regard to its conflicts of
laws principles.
(b) The parties hereto hereby irrevocably:
(i) agree that any suit, action or other legal proceeding
arising out of this Agreement, or any of the transactions contemplated hereby,
may be brought in the courts of record of the State of Connecticut or the courts
of the United States located in the State of Connecticut;
(ii) consent to the jurisdiction of each such court in any such
suit, action or proceeding;
(iii) waive any objection to the laying of venue of any such
suit, action or proceeding in any of such courts; and
(iv) agree that Connecticut is the most convenient forum for
litigation of any such suit, action or proceeding.
(c) If any dispute arising under this Agreement is not settled
promptly in the ordinary course of business, the parties shall seek to resolve
any such dispute between them, first, by negotiating promptly with each other in
good faith. If the parties are unable to resolve the dispute between them
within twenty (20) business days (or such period as the parties shall otherwise
agree) through these negotiations, then any such disputes shall be settled by
binding arbitration in accordance with this Agreement and the following
procedures:
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(i) Any arbitration shall be conducted in accordance with the
Commercial Rules of the American Arbitration Association (the "AAA") then in
effect.
(ii) Either party shall serve upon the other parties a written
demand that the dispute be arbitrated, specifying in reasonable detail the
nature of the dispute to be submitted to arbitration.
(iii) Within thirty (30) days after service of a demand for
arbitration, the parties shall attempt to agree upon a single arbitrator.
(iv) In the event the parties cannot agree upon a single
arbitrator, any party may request the AAA to appoint an arbitrator in accordance
with its rules; except that if the parties fail to agree upon an arbitrator from
the persons named by the AAA or if for any reason the appointment cannot be made
from the lists submitted by the AAA, then the Employee and PriceLine shall each
appoint an arbitrator within seven (7) days thereafter and the third arbitrator
shall be appointed by the AAA.
(v) The arbitration proceeding shall be held in Stamford,
Connecticut.
(vi) The arbitrators shall have no power or authority to add to
or detract from the agreements of the parties. The arbitrators shall have no
authority to award punitive, exemplary, consequential, special, indirect or
incidental damages.
(vii) The expenses of arbitration shall be borne equally by
the Employee and PriceLine unless the arbitrators determine that one of the
parties has not proceeded in good faith with respect to the matters submitted
for arbitration, in which case, such party shall bear fully the expenses of
arbitration.
(viii) Judgment may be entered on any arbitration award in any
court of competent jurisdiction.
15
16. HEADINGS. All descriptive headings of sections and paragraphs in
this Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph.
17. SPECIFIC PERFORMANCE. Each party hereto acknowledges that money
damages would be both incalculable and an insufficient remedy for any breach of
this Agreement by such party and that any such breach would cause the other
parties irreparable harm. Accordingly, each party hereto also agrees that, in
the event of any breach or threatened breach of the provisions of this Agreement
by such party, the other parties shall be entitled to equitable relief without
the requirement of posting a bond or other security, including in the form of
injunctions and orders for specific performance, in addition to all other
remedies available to such other parties at law or in equity.
18. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYEE
/s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx
xxxxxxxxx.xxx LLC
By: /s/ Xxx X. Xxxxxx
--------------------------------
Name:
------------------------------
Title:
-----------------------------
17
