EXHIBIT 10.28
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this "Agreement") dated as of July 6,
2003, is between Orbitz, Inc., a Delaware corporation ("Company") having an
address at 000 X. Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 and Xxxxxxx X.
Xxxx ("Employee") having an address set forth on the signature page hereof,
relating to the award of shares of Company's Class C common stock ("Stock") to
Employee pursuant to the Restricted Stock Awards provisions of Company's 2002
Stock Plan (as such may be amended from time to time, the "Plan"). Capitalized
terms used in this Agreement without definition shall have the meaning ascribed
to such terms in the Plan.
1. ISSUANCE OF RESTRICTED SHARES. Company hereby awards to Employee
200,000 shares of Stock (the "Restricted Shares") as provided for in Section
2(d) of the Employment Agreement.
2. LAPSE OF RESTRICTIONS. Restricted Shares shall cease to be subject
to the restrictions described herein, (shares no longer subject to such
restrictions being referred to herein as "Unrestricted Shares") as of the date
set forth below according to the percentage set forth opposite such date, unless
vesting occurs earlier, as provided for in Section 2(d) of the Employment
Agreement:
Date Cumulative Percentage Unrestricted
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July 6, 2004 25%
July 6, 2005 50%
July 6, 2006 75%
July 6, 2007 100%
For purposes of this Agreement, the term "vesting" shall have
the effect of converting Restricted Shares into Unrestricted Shares.
In the event that Employee ceases to be a Service Provider
before all of the shares of Stock granted hereunder cease to be Restricted
Shares, Employee shall, upon the date of such termination forfeit or the
restrictions shall lapse as to that number of shares of Stock which constitute
the Restricted Shares as provided under Employee's Amended and Restated
Employment Agreement dated as of July 6, 2003 ("Employment Agreement"). Upon
such forfeiture the Company shall become the legal and beneficial owner of the
Restricted Shares being forfeited and all rights and interests therein or
relating thereto, and the Company shall have the right to retain and transfer to
its own name the number of Restricted Shares being forfeited by Employee. Upon a
lapse of restrictions under this Section 2, the shares shall become Unrestricted
Shares.
3. RESTRICTION ON TRANSFER. Restricted Shares (and any interest
therein) may never be directly or indirectly transferred, pledged, hypothecated,
or otherwise disposed of while they remain Restricted Shares. Prior to the
closing of an initial public offering with respect to shares of Stock ("IPO")
registered under the Securities Act of 1933, as amended (the "Securities Act"),
neither Unrestricted Shares nor any interest therein my be transferred, pledged,
hypothecated, or otherwise disposed of. Following the consummation of an IPO,
any Unrestricted Shares shall be freely transferable subject only to the
restrictions set forth in Sections 6 and 8 hereof.
4. REPURCHASE. In the event that Employee ceases to be a Service
Provider for any or no reason (including death or disability) at any time prior
to the consummation of an IPO, any then Unrestricted Shares shall be subject to
a right (but not an obligation) of repurchase by Company.
Company's right of repurchase with respect to Unrestricted Shares shall be
exercisable, during the sixty (60) day period immediately following the
Termination Date, by delivery of written notice to Employee (which notice shall
set forth a date, within thirty (30) days of the date of the notice, on which
the repurchase is to be effected). Company's right of repurchase with respect to
Unrestricted Shares shall lapse upon the consummation of an IPO or upon
expiration of the above referenced sixty (60) day period. If Company exercises
its right of repurchase with respect to Unrestricted Shares it shall pay
Employee, at closing, an amount equal to the Fair Market Value (as of the
Termination Date) per share or, in the event that Employee's employment with the
Company is terminated by the Company for "Cause" (as defined in Employee's
Employment Agreement), the par value per share. At the closing of any
repurchase, Employee shall deliver to Company stock certificates duly endorsed
for transfer, or accompanied by duly executed stock powers, representing all of
the Stock being sold, free and clear of all claims, liens, or encumbrances from
any third parties together with such other documentation as Company's legal
counsel may reasonably require.
5. ESCROW. The Company may, in its discretion, reflect ownership of
Restricted Shares (and Unrestricted Shares) through the issuance of stock
certificates, or in book-entry form, without stock certificates, on its books
and records. If the Company elects to issue certificates, such certificates for
Restricted Shares shall be deposited in escrow, together with stock powers duly
executed in blank by Employee, with the corporate secretary of Company to be
held in accordance with the provisions hereof. Restricted Shares shall be: (i)
released to Company upon forfeiture as described in Section 2 above; (ii)
release for transfer and assignment to Company upon Company's exercise of its
right of repurchase described in Section 4 above; or (ii) released to Employee,
upon Employee's request, to the extent the shares of Stock are no longer
Restricted Shares.
6. ADDITIONAL RESTRICTIONS ON TRANSFER OF STOCK. The certificates
representing shares of Stock granted hereunder will bear a legend which states,
and Employee agrees to, the following:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES ACT. THEY MAY NOT BE SOLD OR OFFERED FOR SALE IN
THE ABSENCE OF A REGISTRATION STATEMENT WHICH IS EFFECTIVE
UNDER THOSE ACTS AS TO SUCH SECURITIES OR AN OPINION, IN FORM
AND SUBSTANCE SATISFACTORY TO THE CORPORATION AND GIVEN BY
COUNSEL SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT
SUCH REGISTRATION IS NOT REQUIRED. THE SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN REPURCHASE OPTIONS,
ADDITIONAL RESTRICTIONS ON TRANSFER AND OTHER AGREEMENTS SET
FORTH IN A
RESTRICTED STOCK AGREEMENT (THE "AGREEMENT")
BETWEEN ORBITZ, INC., A DELAWARE CORPORATION, AND
__________________ DATED AS OF _____________, A COPY OF WHICH
MAY BE OBTAINED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
CORPORATION. ANY TRANSFER OR PLEDGE IN CONFLICT WITH, OR IN
DEROGATION OF THE AGREEMENT IS VOID AND OF NO LEGAL FORCE,
EFFECT, OR VALIDITY WHATSOEVER."
7. SECTION 83(b) ELECTION. Employee acknowledges that he may, within
the thirty (30) day period after the date hereof, in his sole discretion make an
election with the Internal Revenue Service under Section 83(b) of the Code. If
Employee makes such election, he will promptly file a copy with the Company.
8. EMPLOYEE'S INVESTMENT REPRESENTATIONS. Employee represents that he;
(a) understands that Employee's shares of Stock have not been registered under
the Securities Act, are offered pursuant to an exemption thereunder, and have
not been approved or disapproved by the Securities and Exchange Commission or by
any other federal or state agency; (b) is acquiring shares of Stock for his own
account for investment, not on behalf or for the benefit of any other person,
trust, estate, or business organization and has no intention of distributing
such shares of Stock to others in violation of the Securities Act; (c) has no
contract or arrangement with any person to sell or transfer to them of
Employee's shares of Stock; (d) is aware of no existing circumstances which will
compel him to obtain money by the sale of any shares of Stock, and has no reason
to anticipate any change in such circumstances, financial or otherwise, or to
anticipate any occasion or event which would cause him to assign, transfer,
sell, or distribute or necessitate or require him to assign, transfer, sell, or
distribute Employee's shares of Stock; (e) understands that the shares of Stock
are illiquid, subject to resale restrictions imposed by the securities laws of
various states and may not be sold without compliance with such laws and he may
be required to hold the shares of Stock indefinitely; and (f) resides in the
State of
Illinois.
9. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of
Illinois, without
regard to its conflict of laws rules.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
ORBITZ, INC., A DELAWARE CORPORATION
By: /s/: XXXX X. XXXXXX
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Xxxx Xxxxxx, VP of Human Resources
EMPLOYEE:
/s/: XXXXXXX X. XXXX
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Name: X. X. XXXX
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Address:
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