EMPLOYMENT AGREEMENT
Exhibit 10.21
THIS EMPLOYMENT AGREEMENT (“Agreement”) is entered into by and between Xxxxx Xxxxxx
(“Executive”) and Expedia, Inc., a Delaware corporation (the “Company”), and is effective October
25, 2006 (the “Effective Date”).
WHEREAS, the Company desires to establish its right to the services of Executive, in the
capacity described below, on the terms and conditions hereinafter set forth, and Executive is
willing to accept such employment on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, Executive and
the Company have agreed and do hereby agree as follows:
1A. EMPLOYMENT. The Company agrees to employ Executive as Executive Vice President,
General Counsel and Secretary and Executive accepts and agrees to such employment. During
Executive’s employment with the Company, Executive shall perform all services and acts necessary or
advisable to fulfill the duties and responsibilities as are commensurate and consistent with
Executive’s position and shall render such services on the terms set forth herein. During
Executive’s employment with the Company, Executive shall report directly to the Chief Executive
Officer of the Company or such person(s) as from time to time may be designated by the Company
(hereinafter referred to as the “Reporting Officer”). Executive shall have such powers and duties
with respect to the Company as may reasonably be assigned to Executive by the Reporting Officer, to
the extent consistent with Executive’s position and status. Executive agrees to devote all of
Executive’s working time, attention and efforts to the Company and to perform the duties of
Executive’s position in accordance with the Company’s policies as in effect from time to time.
Executive’s principal place of employment shall be the Company’s offices located in Bellevue,
Washington.
2A. TERM OF AGREEMENT. The term (“Term”) of this Agreement shall commence on the Effective
Date and shall continue through the third anniversary of the Effective Date, unless sooner
terminated in accordance with the provisions of Section 1 of the Standard Terms and Conditions
attached hereto.
3A. COMPENSATION.
(a) BASE SALARY. During the Term, the Company shall pay Executive an annual base
salary of $375,000.00 (the “Base Salary”), payable in equal biweekly installments or in accordance
with the Company’s payroll practice as in effect from time to time. For all purposes under this
Agreement, the term “Base Salary” shall refer to Base Salary as in effect from time to time.
(b) DISCRETIONARY BONUS. During the Term, Executive shall be eligible to receive
discretionary annual bonuses with an annual target bonus equal to 75% of Base Salary, with amounts,
if any, for any partial year payable on a pro rata basis.
(c) SIGNING BONUS. The Company shall pay to Executive a special signing bonus of
$250,000 within ten (10) business days following the execution of this Agreement. Notwithstanding
the foregoing, (i) the Company shall not be required to make
any payment described in this Section 3A(c) if Executive has resigned without Good Reason or
been terminated by the Company for Cause (both as defined in the Standard Terms and Conditions
incorporated herein) prior to the first anniversary of the Effective Date and (ii)
Executive shall
forfeit and repay to the Company any amounts paid to Executive pursuant to this Section 3A(c) if,
within 12 months following any such payment, Executive resigns without Good Reason or is terminated
by the Company for Cause.
(d) BENEFITS. During the Term, from the Effective Date through the date of
termination of Executive’s employment with the Company for any reason, Executive shall be entitled
to participate in any welfare, health and life insurance and pension benefit and incentive programs
as may be adopted from time to time by the Company on the same basis as that provided to similarly
situated executives of the Company generally. Without limiting the generality of the foregoing,
Executive shall be entitled to the following benefits:
(i) Reimbursement for Relocation Expenses. The Company shall reimburse
Executive for all reasonable and necessary expenses incurred by Executive in relocating to
Washington State on the same basis as similarly situated executives of the Company generally
and in accordance with the Company’s policies (including repayment policies) as in effect
from time to time.
(ii) Reimbursement for Business Expenses. During the Term, the Company shall
reimburse Executive for all reasonable and necessary expenses incurred by Executive in
performing Executive’s duties for the Company, on the same basis as similarly situated
executives of the Company generally and in accordance with the Company’s policies as in
effect from time to time.
(iii) Vacation. During the Term, Executive shall be entitled to paid vacation
in accordance with the plans, policies, programs and practices of the Company applicable to
similarly situated executives of the Company generally.
(e) RESTRICTED STOCK UNITS. Pursuant to the Company’s 2005 Stock and Annual Incentive
Plan, in consideration of Executive’s entering into this Agreement and as an inducement to join the
Company, Executive shall be granted restricted stock units (representing shares of Common Stock of
the Company) in the amounts and on the terms set forth in the agreements attached hereto as Exhibit
A.
4A. NOTICES. All notices and other communications under this Agreement shall be in writing
and shall be given by first-class mail, certified or registered with return receipt requested or
hand delivery acknowledged in writing by the recipient personally, and shall be deemed to have been
duly given three days after mailing or immediately upon duly acknowledged hand delivery to the
respective persons named below:
| If to the Company: | Expedia, Inc. | |||
| 0000 000xx Xxxxxx XX | ||||
| Xxxxxxxx, Xxxxxxxxxx 00000 | ||||
| Attention: Chief Executive Officer | ||||
| With a copy to: | Wachtell, Lipton, Xxxxx & Xxxx | |||
| 00 Xxxx 00xx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attention: Xxxxxx X. Xxxxxxxx, Esq. | ||||
| If to Executive: | At the most recent address on record for Executive at the Company. |
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Either party may change such party’s address for notices by notice duly given pursuant hereto.
5A. GOVERNING LAW; JURISDICTION. This Agreement and the legal relations thus created
between the parties hereto shall be governed by and construed under and in accordance with the
internal laws of the State of Washington without reference to the principles of conflicts of laws.
Any and all disputes between the parties which may arise pursuant to this Agreement will be heard
and determined before an appropriate federal court in Washington, or, if not maintainable therein,
then in an appropriate Washington state court. The parties acknowledge that such courts have
jurisdiction to interpret and enforce the provisions of this Agreement, and the parties consent to,
and waive any and all objections that they may have as to, personal jurisdiction and/or venue in
such courts.
6A. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together will constitute one and the same
instrument. Executive expressly understands and acknowledges that the Standard Terms and
Conditions attached hereto are incorporated herein by reference, deemed a part of this Agreement
and are binding and enforceable provisions of this Agreement. References to “this Agreement” or
the use of the term “hereof” shall refer to this Agreement and the Standard Terms and Conditions
attached hereto, taken as a whole.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and delivered by its
duly authorized officer and Executive has executed and delivered this Agreement.
| EXPEDIA, INC. | ||
| /s/ Xxxx Xxxxxxxxxxxx | ||
| By: Xxxx Xxxxxxxxxxxx | ||
| Title: President & Chief Executive Officer | ||
| XXXXX XXXXXX | ||
| /s/ Xxxxx Xxxxxx | ||
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STANDARD TERMS AND CONDITIONS
1. TERMINATION OF EXECUTIVE’S EMPLOYMENT.
(a) DEATH. Upon termination of Executive’s employment prior to the expiration of the Term
by reason of Executive’s death, the Company shall pay Executive’s designated beneficiary or
beneficiaries, within 30 days of Executive’s death in a lump sum in cash, (i) Executive’s Base
Salary from the date of Executive’s death through the end of the month in which Executive’s death
occurs and (ii) any Accrued Obligations (as defined in Section 1(f) below).
(b) DISABILITY. If, as a result of Executive’s incapacity due to physical or mental
illness (“Disability”), Executive shall have been absent from the full-time performance of
Executive’s duties with the Company for a period of four consecutive months and, within 30 days
after written notice is provided to Executive by the Company (in accordance with Section 4A
hereof), Executive shall not have returned to the full-time performance of Executive’s duties,
Executive’s employment under this Agreement may be terminated by the Company for Disability.
During any period prior to such termination during which Executive is absent from the full-time
performance of Executive’s duties with the Company due to Disability, the Company shall continue to
pay Executive’s Base Salary at the rate in effect at the commencement of such period of Disability,
offset by any amounts payable to Executive under any disability insurance plan or policy provided
by the Company. Upon termination of Executive’s employment due to Disability, the Company shall
pay Executive within 30 days of such termination (i) Executive’s Base Salary through the end of the
month in which Executive’s termination of employment for Disability occurs in a lump sum in cash,
offset by any amounts payable to Executive under any disability insurance plan or policy provided
by the Company; and (ii) any Accrued Obligations (as defined in Section 1(f) below).
(c) TERMINATION FOR CAUSE/RESIGNATION WITHOUT GOOD REASON. The Company may terminate
Executive’s employment under this Agreement with or without Cause at any time and Executive may
resign under this Agreement with or without Good Reason at any time. As used herein, “Cause”
shall mean: (i) the plea of guilty or nolo contendere to, conviction for, or the
commission of, a felony offense by Executive; provided, however, that after
indictment, the Company may suspend Executive from the rendition of services, but without limiting
or modifying in any other way the Company’s obligations under this Agreement; (ii) a material
breach by Executive of a fiduciary duty owed to the Company; (iii) a material breach by Executive
of any of the covenants made by Executive in Section 2 hereof; (iv) the willful or gross neglect by
Executive of the material duties required by this Agreement; or (v) a knowing and material
violation by Executive of any Company policy pertaining to ethics, wrongdoing or conflicts of
interest that, in the case of the conduct described in clauses (iv) or (v) above, if curable, is
not cured by Executive within thirty (30) days after Executive is provided with written notice
thereof. Upon Executive’s (A) termination of employment by the Company for Cause prior to the
expiration of the Term or (B) resignation without Good Reason prior to the expiration of the Term,
this Agreement shall terminate without further obligation by the Company, except for the payment of
any Accrued Obligations (as defined in Section 1(f) below).
(d) TERMINATION BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR CAUSE OR RESIGNATION BY
EXECUTIVE FOR GOOD REASON. Upon termination of Executive’s employment prior to the expiration
of the Term (i) by the Company without Cause (other than for death or Disability) or (ii) by
Executive for Good Reason (as defined below), then
(a) the Company shall continue to pay Executive the Base Salary through the longer of (x) the end
of the Term over the course of the then remaining Term and (y) twelve months (such period, the
“Salary Continuation Period”), in each case payable in equal biweekly installments in accordance
with the Company’s payroll practice as in effect from time to time, subject in all events to
Section 9 below, (b) the Company shall pay Executive within 30 days of the date of such termination
in a lump sum in cash any Accrued Obligations (as defined in Section 1(f) below) and (c) the
Company will consider in good faith the payment of a target discretionary bonus on a pro rata basis
for the year in which the Termination of Employment occurs. The payment to Executive of the
severance benefits described in this Section 1(d) shall be subject to Executive’s execution and
non-revocation of a general release of the Company and its affiliates in a form substantially
similar to that used for similarly situated executives of the Company and its affiliates and
Executive’s compliance with the restrictive covenants set forth in Section 2 (other than any
non-compliance that is immaterial, does not result in harm to the Company or its affiliates, and,
if curable, is cured by Executive promptly after receipt of notice thereof given by the Company).
Executive acknowledges and agrees that the Company’s payment of severance benefits described in
this Section 1(d) constitutes good and valuable consideration for such release. As used herein,
“Good Reason” shall mean the occurrence of any of the following without Executive’s prior written
consent: (A) the Company’s material breach of any material provision of this Agreement, (B) the
material reduction in Executive’s title, duties, reporting responsibilities or level of
responsibilities as General Counsel of the Company, excluding for this purpose any such reduction
that is an isolated and inadvertent action not taken in bad faith or that is authorized pursuant to
this Agreement, (C) the reduction in Executive’s Base Salary or the percentage of Executive’s
discretionary annual target bonus, or (D) the relocation of Executive’s principal place of
employment more than 50 miles outside the Seattle metropolitan area, provided that in no
event shall Executive’s resignation be for “Good Reason” unless (x) an event or circumstance set
forth in clauses (A) through (D) shall have occurred and Executive provides the Company with
written notice thereof within thirty (30) days after the Executive has knowledge of the occurrence
or existence of such event or circumstance, which notice specifically identifies the event or
circumstance that Executive believes constitutes Good Reason, (y) the Company fails to correct the
circumstance or event so identified within 30 days after the receipt of such notice, and (z) the
Executive resigns within 90 days after the date of delivery of the notice referred to in clause (x)
above.
(e) MITIGATION; OFFSET. If Executive obtains other employment during the Salary
Continuation Period, any payments to be made to Executive under Section 1(d) hereof after the date
such employment is secured shall be offset by the amount of compensation earned by Executive from
such employment. For purposes of this Section 1(e), Executive shall have an obligation to inform
the Company regarding Executive’s employment status following termination and during the Salary
Continuation Period, but shall have no affirmative duty to seek alternate employment.
(f) ACCRUED OBLIGATIONS. As used in this Agreement, “Accrued Obligations” shall mean the
sum of (i) any portion of Executive’s accrued and earned but unpaid Base Salary through the date of
death or termination of employment for any reason, as the case may be; (ii) any compensation
previously earned but deferred by Executive (together with any interest or earnings thereon) that
has not yet been paid; (iii) other than in the event of Executive’s resignation without Good Reason
or termination by the Company for Cause (except as required by applicable law), any portion of
Executive’s accrued but unpaid vacation pay through the date of death or termination of employment;
and (iv) any vested benefits or amounts that Executive is otherwise entitled to receive under any
plan, policy,
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practice or program of or any other contract or agreement with the Company or its affiliates in
accordance with the terms thereof.
2. CONFIDENTIAL INFORMATION; NON-SOLICITATION; AND PROPRIETARY RIGHTS.
(a) CONFIDENTIALITY. Executive acknowledges that while employed by the Company, Executive
will occupy a position of trust and confidence. Executive shall not, except as is appropriate to
perform Executive’s duties hereunder or as required by applicable law, disclose to others, use,
copy, transmit, reproduce, summarize, quote or make commercial, whether directly or indirectly, any
Confidential Information. Executive will also take reasonable steps to safeguard such Confidential
Information and prevent its loss, theft, or inadvertent disclosure to third persons. This Section
2 shall apply to Confidential Information acquired by Executive whether prior or subsequent to the
execution of this Agreement. “Confidential Information” shall mean information about the Company
or any of its subsidiaries or affiliates, and their respective clients and customers, including
(without limitation) any proprietary knowledge, trade secrets, data, formulae, information and
client and customer lists and all papers, resumes, and records (including computer records) of the
documents containing such Confidential Information, provided that Confidential Information
shall not mean any such information that is previously disclosed to, or in possession of, the
public other than by reason of Executive’s breach of this Agreement. Notwithstanding the foregoing
provisions, if Executive is required to disclose any such confidential or proprietary information
pursuant to applicable law or a subpoena or court order, Executive shall promptly notify the
Company in writing of any such requirement so that the Company may seek an appropriate protective
order or other appropriate remedy or waive compliance with the provisions hereof. Executive shall
reasonably cooperate with the Company to obtain such a protective order or other remedy. If such
order or other remedy is not obtained prior to the time Executive is required to make the
disclosure, or the Company waives compliance with the provisions hereof, Executive shall disclose
only that portion of the confidential or proprietary information which he is advised by counsel
that he is legally required to so disclose. Executive acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the Company and its subsidiaries
or affiliates, and that such information gives the Company and its subsidiaries or affiliates a
competitive advantage. Executive agrees to deliver or return to the Company, at the Company’s
request at any time or upon termination or expiration of Executive’s employment or as soon
thereafter as possible, all documents, computer tapes and disks, records, lists, data, drawings,
prints, notes and written information (and all copies thereof) furnished by the Company and its
subsidiaries or affiliates or prepared by Executive in the course of Executive’s employment by the
Company and its subsidiaries or affiliates. As used in this Agreement, “affiliates” shall mean any
company controlled by, controlling or under common control with the Company.
(b) DUTY OF LOYALTY. In consideration of the Company’s promise to disclose, and disclosure
of, its Confidential Information and other good and valuable consideration provided hereunder, the
receipt and sufficiency of which are hereby acknowledged by Executive, Executive hereby agrees and
covenants that: Until the longer of (i) the last day of the Term and (ii) a period of twenty four
(24) months beyond Executive’s date of termination of employment for any reason, including the
expiration of the Term (the “Restricted Period”), Executive shall not, directly or indirectly,
engage in, assist or become associated with a Competitive Activity. For purposes of this Section
2(b): (i) a “Competitive Activity” means, at the time of Executive’s termination, any business or
other endeavor in any jurisdiction of a kind being conducted by the Company or any of its
subsidiaries or affiliates (or demonstrably anticipated by the Company or its subsidiaries or
affiliates), including, without limitation, those that are engaged in the provision of any
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lodging or travel related services (including, without limitation, corporate travel services), in
any jurisdiction as of the Effective Date or at any time thereafter (such affiliates including,
without limitation, Xxxxxx.xxx, Hotwire, Inc. and TripAdvisor); and (ii) Executive shall be
considered to have become “associated with a Competitive Activity” if Executive becomes directly or
indirectly involved as an owner, principal, employee, officer, director, independent contractor,
representative, stockholder, financial backer, agent, partner, advisor, lender, or in any other
individual or representative capacity with any individual, partnership, corporation or other
organization that is engaged in a Competitive Activity. Notwithstanding the foregoing, Executive
may make and retain investments during the Restricted Period, for investment purposes only, in less
than five percent (5%) of the outstanding capital stock of any publicly-traded corporation engaged
in a Competitive Activity if stock of such corporation is either listed on a national stock
exchange or on the NASDAQ National Market System if Executive is not otherwise affiliated with such
corporation.
(c) NON-SOLICITATION OF EMPLOYEES. Executive agrees that during the Restricted Period,
Executive shall not, without the prior written consent of the Company, directly or indirectly,
hire, recruit or solicit the employment or services of (whether as an employee, officer, director,
agent, consultant or independent contractor), any employee, officer, director, agent, consultant or
independent contractor of the Company or any of its subsidiaries or affiliates or any such person
who has terminated his or her relationship with the Company or any of its subsidiaries or
affiliates within the six-month period prior to such hiring, recruiting or soliciting (except for
(i) such employment or hiring by the Company or any of its subsidiaries or affiliates or (ii) such
employment or hiring by Executive of an agent, consultant or independent contractor where the
primary duties of such person are not for the Company); provided, however that a
general solicitation of the public for employment shall not constitute a solicitation hereunder so
long as such general solicitation is not designed to target, or does not have the effect of
targeting, any employee, officer, director, agent, consultant or independent contractor of the
Company or any of its subsidiaries or affiliates. This Section 2(c) shall not apply to any
administrative assistant working directly for Executive.
(d) NON-SOLICITATION OF BUSINESS PARTNERS. During the Restricted Period, Executive shall
not, without the prior written consent of the Company, directly or indirectly, persuade or
encourage or attempt to persuade or encourage any business partners or business affiliates of the
Company or its subsidiaries or affiliates to cease doing business with the Company or any of its
subsidiaries or affiliates or to engage in any business competitive with the Company or its
subsidiaries or affiliates on its own or with any competitor of the Company or its subsidiaries or
affiliates.
(e) PROPRIETARY RIGHTS; ASSIGNMENT. All Executive Developments (as defined below) shall be
made for hire by Executive for the Company or any of its subsidiaries or affiliates. “Executive
Developments” means any idea, discovery, invention, design, method, technique, improvement,
enhancement, development, computer program, machine, algorithm or other work or authorship, in each
case, (i) that (A) relates to the business or operations of the Company or any of its subsidiaries
or affiliates, or (B) results from or is suggested by any undertaking assigned to Executive or work
performed by Executive for or on behalf of the Company or any of its subsidiaries or affiliates,
whether created alone or with others, during or after working hours and (ii) that is conceived or
developed during the Term. All Confidential Information and all Executive Developments shall
remain the sole property of the Company or any of its subsidiaries or affiliates. Executive shall
acquire no proprietary interest in any Confidential Information or Executive Developments developed
or acquired during the Term. To the extent Executive may, by
operation of law or otherwise,
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acquire any right, title or interest in or to any Confidential
Information or Executive Development, Executive hereby assigns to the Company all such proprietary
rights. Executive shall, both during and after the Term, upon the Company’s request, promptly
execute and deliver to the Company all such assignments, certificates and instruments, and shall
promptly perform such other acts, as the Company may from time to time in its reasonable discretion
deem necessary or desirable to evidence, establish, maintain, perfect, enforce or defend the
Company’s rights in Confidential Information and Executive Developments.
(f) COMPLIANCE WITH POLICIES AND PROCEDURES. During the Term, Executive shall adhere to
the policies and standards of professionalism set forth in the Company’s Policies and Procedures as
they may exist from time to time. Executive hereby consents to, and expressly authorizes, the
Company’s use of Executive’s name and likeness in trade publications and other media for trade or
commercial purposes.
(g) REMEDIES FOR BREACH. Executive expressly agrees and understands that the Company will
have 30 days from receipt of Executive’s notice of any alleged breach by the Company of this
Agreement to cure any such breach. Executive expressly agrees and understands that the remedy at
law for any breach by Executive of this Section 2 will be inadequate and that damages flowing from
such breach are not usually susceptible to being measured in monetary terms. Accordingly, it is
acknowledged that upon Executive’s violation or threatened violation of any provision of this
Section 2, the Company shall be entitled to obtain from any court of competent jurisdiction
immediate injunctive relief and obtain a temporary order restraining any threatened or further
breach as well as an equitable accounting of all profits or benefits arising out of such violation
without the requirement of posting any bond. Nothing in this Section 2 shall be deemed to limit
the Company’s remedies at law or in equity for any breach by Executive of any of the provisions of
this Section 2, which may be pursued by or available to the Company.
(h) SURVIVAL OF PROVISIONS. The obligations contained in this Section 2 shall, to the
extent provided in this Section 2, survive the termination or expiration of Executive’s employment
with the Company and, as applicable, shall be fully enforceable thereafter in accordance with the
terms of this Agreement. If it is determined by a court of competent jurisdiction in any state
that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or
unenforceable under the laws of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state.
3. TERMINATION OF PRIOR AGREEMENTS/EXISTING CLAIMS. This Agreement constitutes the entire
agreement between the parties and terminates and supersedes any and all prior agreements and
understandings (whether written or oral) between the parties with respect to the subject matter of
this Agreement. Executive acknowledges and agrees that neither the Company nor anyone acting on
its behalf has made, and is not making, and in executing this Agreement, Executive has not relied
upon, any representations, promises or inducements except to the extent the same is expressly set
forth in this Agreement. Executive hereby represents and warrants to the Company that Executive is
not party to any contract, understanding, agreement or policy, whether or not written, with
Executive’s most-recent employer (the “Previous Employer”) or otherwise, that would be breached by
Executive’s entering into, or performing services under, this Agreement. Executive further
represents that, prior to the Effective Date, he has disclosed in writing to the Company all
material existing, pending or threatened claims against him, if any, as a result of his employment
with the Previous Employer or his membership on any boards of directors.
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4. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its nature and none of the
parties hereto shall, without the consent of the others, assign or transfer this Agreement or any
rights or obligations hereunder; provided, that, in the event of a merger, consolidation,
transfer, reorganization, or sale of all, substantially all or a substantial portion of, the assets
of the Company with or to any other individual or entity, this Agreement shall, subject to the
provisions hereof, be binding upon and inure to the benefit of the Company’s successor-in-interest
in such transaction, and such successor shall discharge and perform all the promises, covenants,
duties, and obligations of the Company hereunder, and all references herein to the “Company” shall
refer to such successor.
5. WITHHOLDING. The Company shall make such deductions and withhold such amounts from each
payment and benefit made or provided to Executive hereunder, as may be required from time to time
by applicable law, governmental regulation or order.
6. HEADING REFERENCES. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose. References to “this Agreement” or the use of the term “hereof” shall refer to these
Standard Terms and Conditions and the Employment Agreement attached hereto, taken as a whole.
7. WAIVER; MODIFICATION. Failure to insist upon strict compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition,
nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times be deemed a waiver or relinquishment of such
right or power at any other time or times. This Agreement shall not be modified in any respect
except by a writing executed by each party hereto.
8. SEVERABILITY. In the event that a court of competent jurisdiction determines that any
portion of this Agreement is in violation of any law or public policy, only the portions of this
Agreement that violate such law or public policy shall be stricken. All portions of this Agreement
that do not violate any statute or public policy shall continue in full force and effect. Further,
any court order striking any portion of this Agreement shall modify the stricken terms as narrowly
as possible to give as much effect as possible to the intentions of the parties under this
Agreement.
9. SECTION 409A. If any compensation or benefits provided by this Agreement may result in
the application of Section 409A of the Code, the Company shall, in consultation with the Executive,
modify the Agreement in the least restrictive manner necessary in order to exclude such
compensation from the definition of “deferred compensation” within the meaning of such Section 409A
or in order to comply with the provisions of Section 409A, other applicable provision(s) of the
Code and/or any rules, regulations or other regulatory guidance issued under such statutory
provisions and without any diminution in the value of the payments to the Executive. Without
limiting the generality of the foregoing, to the extent required in order to comply with Section
409A of the Code, amounts that would otherwise be payable under this Agreement during the six-month
period immediately following the date of termination of Executive’s employment shall instead be
paid, on the first business day after the date that is six months following the Executive’s
“separation from service” within the meaning of Section 409A of the Code.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and delivered by its
duly authorized officer and Executive has executed and delivered this Agreement.
| EXPEDIA, INC. | ||
| /s/ Xxxx Xxxxxxxxxxxx | ||
| By: Xxxx Xxxxxxxxxxxx | ||
| Title: President & Chief Executive Officer | ||
| XXXXX XXXXXX | ||
| /s/ Xxxxx Xxxxxx | ||
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