EXPEDIA, INC. RESTRICTED STOCK UNIT AGREEMENT
Exhibit 10.20
THIS AGREEMENT, dated as of the award date (the “Award Date”) designated on the Summary of
Award referenced below, between Expedia, Inc., a Delaware corporation (the “Corporation”), and
Xxxxxxx X. Xxxxx (the “Eligible Individual”) designated as receiving the awards of restricted stock
units by the Compensation/Benefits Committee of the Board of Directors of the Corporation (or such
other Committee as the Board may from time to time designate) (the “Committee”).
All capitalized terms used herein, to the extent not defined, shall have the meanings set
forth in the Corporation’s 2005 Stock and Annual Incentive Plan (the “Plan”).
1. Award and Vesting of Restricted Stock Units
(a) Subject to the provisions of this Agreement and to the provisions of the Plan
the Corporation hereby grants to the Eligible Individual pursuant to Section 7 of the Plan:
(i) 84,832 restricted stock units (the “First RSU Award”) and
(ii) 53,020 restricted stock units (the “Second RSU Award” and together with the First RSU
Award, the “Restricted Stock Units”).
Reference is made to the “Summary of Award” that can be found on the Xxxxx Xxxxxx Benefit
Access System at xxx.xxxxxxxxxxxxx.xxx. Your Summary of Award, which sets forth the number of
Restricted Stock Units granted to you by the Corporation and the Award Date (among other
information), is hereby incorporated by reference into, and shall be read as part and parcel of,
this Agreement.
(b) Subject to the terms and conditions of this Agreement and the provisions of the Plan and
contingent upon satisfaction of applicable performance goals approved by the Committee (the
“Performance Goals”), the Restricted Stock Units shall vest and no longer be subject to any
restriction (such period during which restrictions apply is the “Restriction Period”):
| Vesting Date | Percentage of Total Award Vesting | |||
On the first anniversary of the Award Date
|
20 | % | ||
On the second anniversary of the Award Date
|
20 | % | ||
On the third anniversary of the Award Date
|
20 | % | ||
On the fourth anniversary of the Award Date
|
20 | % | ||
On the fifth anniversary of the Award Date
|
20 | % | ||
(c) Notwithstanding the provisions of Paragraph 1(b), in the event the Eligible Individual
incurs a Termination of Employment by the Corporation for Cause, or the Eligible Individual
voluntarily incurs a Termination of Employment within two years after any event or
circumstance that would have been grounds for a Termination of Employment for Cause, the
Eligible Individual’s Restricted Stock Units (whether or not vested) shall be forfeited and
canceled in their entirety upon such Termination of Employment, and the Corporation may cause the
Eligible Individual, immediately upon notice from the Corporation, either to return the shares
issued upon settlement of Restricted Stock Units that vested during the two-year period after the
events or circumstances giving rise to or constituting grounds for such Termination of Employment
for Cause or to pay to the Corporation an amount equal to the aggregate amount, if any, that the
Eligible Individual had previously realized in respect of any and all shares issued upon settlement
of Restricted Stock Units that vested during the two-year period after the events or circumstances
giving rise to or constituting grounds for such Termination of Employment for Cause (i.e.,
the value of the Restricted Stock Units upon vesting), in each case including any dividend
equivalents or other distributions received in respect of any such Restricted Stock Units.
(d) Notwithstanding the provisions of Paragraph 1(b), in the event that (i) the Eligible
Individual incurs a Termination of Employment during the Restriction Period (other than by reason
of the Eligible Individual’s death or Disability) by the Corporation without Cause or by the
Eligible Individual for Good Reason and (ii) any applicable Performance Goal has been met as of the
date of the Termination of Employment, (x) 50% of the First RSU Award shall vest (to the extent not
already vested) and no longer be subject to any restriction, (y) the Second RSU Award shall vest
and no longer be subject to any restriction in accordance with the schedule set forth on
Exhibit A and (z) all other remaining Restricted Stock Units shall be forfeited;
provided, however, that in the event of a Termination of Employment by the Eligible
Individual for Good Reason within two years after any event or circumstance that would have been
grounds for a Termination of Employment for Cause, this Paragraph shall be inapplicable and
Paragraph 1(b) shall govern.
(e) In the event the Eligible Individual incurs a Termination of Employment during the
Restriction Period for any reason other than as set forth in Paragraph 1(b), Paragraph 1(d) or
Paragraph 5 (with respect to a Change of Control or a Liberty CIC), all remaining unvested
Restricted Stock Units shall be forfeited by the Eligible Individual and canceled in their entirety
effective immediately upon such termination.
(f) For purposes of this Agreement, employment with the Corporation shall include employment
with the Corporation’s Affiliates (excluding IAC/InterActiveCorp and its subsidiaries) and its
successors. Nothing in this Agreement or the Plan shall confer upon the Eligible Individual any
right to continue in the employ of the Corporation or any of its Affiliates or interfere in any way
with the right of the Corporation or any such Affiliates to terminate the Eligible Individual’s
employment at any time.
2. Settlement of Units
As soon as practicable after any Restricted Stock Units have vested and are no longer subject
to the Restriction Period (or, to the extent compliant with Section 409A of the Code, at such later
date specified by the Committee or in accordance with the election of the Eligible Individual, if
the Committee so permits), such Restricted Stock Units shall be settled; provided that to
the extent that any Restricted Stock Units shall be settled due to a Termination of
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Employment, to the extent required in order to comply with Section 409A of the Code, such
Restricted Stock Units shall be settled no earlier than the first business day that is six months
following the Eligible Individual’s “separation from service” within the meaning of Section 409A of
the Code. Subject to Paragraph 8 (pertaining to the withholding of taxes), for each Restricted
Stock Unit settled pursuant to this Paragraph 2, the Corporation shall issue one share of Common
Stock for each vested Restricted Stock Unit and cause to be delivered to the Eligible Individual
one or more unlegended, freely-transferable stock certificates in respect of such shares issued
upon settlement of the vested Restricted Stock Units. Notwithstanding the foregoing, the
Corporation shall be entitled to hold the shares issuable upon settlement of Restricted Stock Units
that have vested until the Corporation or the agent selected by the Corporation to manage the Plan
under which the Restricted Stock Units have been issued (the “Agent”) shall have received from the
Eligible Individual a duly executed Form W-9 or W-8, as applicable.
3. Non-Transferability of the Restricted Stock Units
During the Restriction Period and until such time as the Restricted Stock Units are ultimately
settled as provided in Paragraph 2 above, the Restricted Stock Units shall not be transferable by
the Eligible Individual by means of sale, assignment, exchange, encumbrance, pledge, hedge or
otherwise.
4. Rights as a Stockholder
Except as otherwise specifically provided in this Agreement, during the Restriction Period,
the Eligible Individual shall not be entitled to any rights of a stockholder with respect to the
Restricted Stock Units. Notwithstanding the foregoing, if the Corporation declares and pays
dividends on the Common Stock during the Restriction Period, the Eligible Individual will be
credited with additional amounts for each Restricted Stock Unit equal to the dividend that would
have been paid with respect to such Restricted Stock Unit if it had been an actual share of Common
Stock, which amount shall remain subject to restrictions (and as determined by the Committee may be
reinvested in Restricted Stock Units or may be held in kind as restricted property) and shall vest
concurrently with the vesting of the Restricted Stock Units upon which such dividend equivalent
amounts were paid. Notwithstanding the foregoing, dividends and distributions other than regular
quarterly cash dividends, if any, may result in an adjustment pursuant to Paragraph 5, rather than
under this Paragraph 4.
5. Adjustment in the Event of Change in Stock; Change in Control
(a) In the event of (i) a stock dividend, stock split, reverse stock split, share combination
or recapitalization or similar event affecting the capital structure of the Corporation (each, a
“Share Change”), or (ii) merger, consolidation, acquisition of property or shares, separation,
spinoff, reorganization, stock rights offering, liquidation, Disaffiliation, payment of cash
dividends other than an ordinary dividend or similar event affecting the Corporation or any of its
Subsidiaries (each, a “Corporate Transaction”), the Committee or the Board may in its discretion
make such substitutions or adjustments as it deems appropriate and equitable to the number of
Restricted Stock Units and the number and kind of shares of Common Stock underlying the Restricted
Stock Units. In the case of Corporate Transactions, such adjustments may include, without
limitation (i) the cancellation of the Restricted Stock Units in exchange for
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payments of cash, property or a combination thereof having an aggregate value equal to the
value of such Restricted Stock Units, as determined by the Committee or the Board in its sole
discretion, (ii) the substitution of other property (including, without limitation, cash or other
securities of the Corporation and securities of entities other than the Corporation) for the shares
of Common Stock underlying the Restricted Stock Units and (iii) in connection with any
Disaffiliation, arranging for the assumption of the Restricted Stock Units, or the replacement of
the Restricted Stock Units with new awards based on other property or other securities (including,
without limitation, other securities of the Corporation and securities of entities other than the
Corporation), by the affected Subsidiary, Affiliate or division or by the entity that controls such
Subsidiary, Affiliate or division following such Disaffiliation (as well as any corresponding
adjustments to any Restricted Stock Units that remain based upon securities of the Corporation).
The determination of the Committee regarding any such adjustment will be final and conclusive and
need not be the same for all Participants.
(b) Notwithstanding anything to the contrary contained herein, but subject to Paragraph 1(c),
in the event of a Change in Control or a Liberty CIC (as defined below), the Restricted Stock Units
shall fully vest and no longer be subject to any restrictions; provided, however,
that if such Change in Control or Liberty CIC shall not constitute a “change in control” within the
meaning of Section 409A of the Code, then the Restricted Stock Units shall fully vest but shall not
be settled until the earlier of (x) such time as a “change in control” within the meaning of
Section 409A occurs or (y) some other permissible payment event under Section 409A of the Code.
“Liberty CIC” shall mean (i) the termination of the irrevocable proxy held by Xxxxx Xxxxxx to vote
shares of the Corporation held by Liberty Media Corporation or its Affiliates or (ii) the
acquisition by Liberty Media Corporation or its Affiliates of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) of equity
securities of the Corporation, such that in the case of either clause (i) or clause (ii) (as
applicable), Liberty Media Corporation acquires or assumes more than 50% of the voting power of the
then outstanding equity securities of the Corporation entitled to vote generally in the election of
directors.
6. Payment of Transfer Taxes, Fees and Other Expenses
The Corporation agrees to pay any and all original issue taxes and stock transfer taxes that
may be imposed on the issuance of shares received by an Eligible Individual in connection with the
Restricted Stock Units, together with any and all other fees and expenses necessarily incurred by
the Corporation in connection therewith.
7. Other Restrictions
(a) The Restricted Stock Units shall be subject to the requirement that, if at any time the
Committee shall determine that (i) the listing, registration or qualification of the shares of
Common Stock subject or related thereto upon any securities exchange or under any state or federal
law, or (ii) the consent or approval of any government regulatory body is required, then in any
such event, the award of Restricted Stock Units shall not be effective unless such listing,
registration, qualification, consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee.
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(b) The Eligible Individual acknowledges that the Eligible Individual is subject to the
Corporation’s policies regarding compliance with securities laws, including but not limited to its
Securities Trading Policy (as in effect from time to time and any successor policies), and,
pursuant to these policies, if the Eligible Individual is on the Corporation’s insider list, the
Eligible Individual shall be required to obtain pre-clearance from the Corporation’s General
Counsel prior to purchasing or selling any of the Corporation’s securities, including any shares
issued upon vesting of the Restricted Stock Units, and may be prohibited from selling such shares
other than during an open trading window. The Eligible Individual further acknowledges that, in
its discretion, the Corporation may prohibit the Eligible Individual from selling such shares even
during an open trading window if the Corporation has concerns over the potential for xxxxxxx
xxxxxxx.
8. Taxes and Withholding
No later than the date as of which an amount first becomes includible in the gross income of
the Eligible Individual for federal, state, local or foreign income or employment or other tax
purposes with respect to any Restricted Stock Units, the Eligible Individual shall pay to the
Corporation, or make arrangements satisfactory to the Corporation regarding the payment of, any
federal, state, local or foreign taxes of any kind required by law to be withheld with respect to
such amount. The obligations of the Corporation under this Agreement shall be conditioned on
compliance by the Eligible Individual with this Paragraph 8, and the Corporation and its Affiliates
shall, to the extent permitted by law, have the right to deduct any such taxes from any payment
otherwise due to the Eligible Individual, including deducting such amount from the delivery of
shares issued upon settlement of the Restricted Stock Units that gives rise to the withholding
requirement.
9. Notices
All notices and other communications under this Agreement shall be in writing and shall be
given by hand delivery to the other party or by facsimile, overnight courier or registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Eligible Individual: at the last known address on record at the Corporation.
If to the Corporation:
Expedia, Inc.
0000 000xx Xxxxxx X.X.
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
0000 000xx Xxxxxx X.X.
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
or to such other address or facsimile number as any party shall have furnished to the other in
writing in accordance with this Paragraph 9. Notices and communications shall be effective when
actually received by the addressee. Notwithstanding the foregoing, the Eligible Individual
consents to electronic delivery of documents required to be delivered by the Corporation under the
securities laws.
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10. Effect of Agreement
Except as otherwise provided hereunder, this Agreement shall be binding upon and shall inure
to the benefit of any successor or successors of the Corporation.
11. Laws Applicable to Construction; Consent to Jurisdiction
(a) The interpretation, performance and enforcement of this Agreement shall be governed by the
laws of the State of Delaware without reference to principles of conflict of laws, as applied to
contracts executed in and performed wholly within the State of Delaware. In addition to the terms
and conditions set forth in this Agreement, the Restricted Stock Units are subject to the terms and
conditions of the Plan, which are hereby incorporated by reference.
(b) Any and all disputes arising under or out of this Agreement, including without limitation
any issues involving the enforcement or interpretation of any of the provisions of this Agreement,
shall be resolved by the commencement of an appropriate action in the state or federal courts
located within the state of Delaware, which shall be the exclusive jurisdiction for the resolution
of any such disputes. The Eligible Individual hereby agrees and consents to the personal
jurisdiction of said courts over the Eligible Individual for purposes of the resolution of any and
all such disputes.
12. Severability
The invalidity or enforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
13. Conflicts and Interpretation
(a) In the event of any conflict between this Agreement and the Plan, the Plan shall control.
In the event of any ambiguity in this Agreement, or any matters as to which this Agreement is
silent, the Plan shall govern including, without limitation, the provisions thereof pursuant to
which the Committee has the power, among others, to (i) interpret the Plan, (ii) prescribe, amend
and rescind rules and regulations relating to the Plan and (iii) make all other determinations
deemed necessary or advisable for the administration of the Plan.
(b) In the event of any (i) conflict between the Summary of Award (or any other information
posted on the Xxxxx Xxxxxx Benefit Access System) and this Agreement, the Plan and/or the books and
records of the Corporation or (ii) ambiguity in the Summary of Award (or any other information
posted on the Xxxxx Xxxxxx Benefit Access System), this Agreement, the Plan and/or the books and
records of the Corporation, as applicable, shall control.
14. Amendment
The Corporation may modify, amend or waive the terms of the Restricted Stock Unit award,
prospectively or retroactively, but no such modification, amendment or waiver shall impair the
rights of the Eligible Individual without his or her consent, except as required by applicable law,
NASDAQ or stock exchange rules, tax rules or accounting rules. The waiver by either party of
compliance with any provision of this Agreement shall not operate or be
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construed as a waiver of any other provision of this Agreement, or of any subsequent breach by
such party of a provision of this Agreement.
15. Headings
The headings of paragraphs herein are included solely for convenience of reference and shall
not affect the meaning or interpretation of any of the provisions of this Agreement.
16. Counterparts
This Agreement may be executed in counterparts, which together shall constitute one and the
same original.
17. Data Protection
The Eligible Individual authorizes the release from time to time to the Corporation (and any
of its subsidiaries or affiliated companies) and to the Agent (together, the “Relevant Companies”)
of any and all personal or professional data that is necessary or desirable for the administration
of the Plan and/or this Agreement (the “Relevant Information”). Without limiting the above, the
Eligible Individual permits his or her employing company to collect, process, register and transfer
to the Relevant Companies all Relevant Information (including any professional and personal data
that may be useful or necessary for the purposes of the administration of the Plan and/or this
Agreement and/or to implement or structure any further grants of equity awards (if any)). The
Eligible Individual hereby authorizes the Relevant Information to be transferred to any
jurisdiction in which the Corporation, his or her employing company or the Agent considers
appropriate. The Eligible Individual shall have access to, and the right to change, the Relevant
Information. Relevant Information will only be used in accordance with applicable law.
18. Section 409A Savings Clause
If any compensation or benefits provided by this Agreement may result in the application of
Section 409A of the Code, the Corporation shall, in consultation with the Eligible Individual,
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
of the Code or in order to comply with the provisions of Section 409A of the Code, 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 Eligible
Individual. 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 Eligible Individual’s
employment shall instead be paid, on the first business day after the date that is six months
following the Eligible Individual’s “separation from service” within the meaning of Section 409A of
the Code.
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IN WITNESS WHEREOF, as of the date first above written, the Corporation has caused this
Agreement to be executed on its behalf by a duly authorized officer and the Eligible Individual has
hereunto set the Eligible Individual’s hand. Electronic acceptance of this Agreement pursuant to
the Corporation’s instructions to the Eligible Individual (including through an online acceptance
process managed by the Agent) is acceptable.
| EXPEDIA, INC. | ||
| /s/ Xxxx Xxxxxxxxxxxx | ||
| Name: Xxxx Xxxxxxxxxxxx | ||
| Title: President & Chief Executive Officer | ||
| ELIGIBLE INDIVIDUAL | ||
| /s/ Xxxxxxx X. Xxxxx | ||
| Xxxxxxx X. Xxxxx |
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Exhibit A
| Percentage of Second RSU Award | ||
| Granted Hereunder that Vests | ||
| (inclusive of Restricted Stock Units | ||
| under the Second RSU Award Granted | ||
Termination Date
|
Hereunder Previously Vested) | |
On or prior to the first anniversary
of the Award Date |
20% | |
Following the first anniversary of
the Award Date, but prior to the
second anniversary of the Award Date |
40% | |
On or after the second anniversary
of the Award Date, but prior to the
third anniversary of the Award Date |
60% | |
On or after the third anniversary of
the Award Date, but prior to the
fourth anniversary of the Award Date |
80% | |
On or after the fourth anniversary
of the Award Date, but prior to the
fifth anniversary of the Award Date |
100% | |
