EMPLOYMENT AGREEMENT (Eric J. Bock, Executive Vice President, Chief Administrative Officer and General Counsel)
Exhibit 10.41
EXECUTION COPY
(Xxxx X. Xxxx, Executive Vice President, Chief Administrative Officer and General Counsel)
EMPLOYMENT AGREEMENT (the “Agreement”) dated February 4, 2010 by and between
Travelport Holdings (Jersey) Limited (to be re-registered as a public limited company and renamed
Travelport plc) (the “Company”) and Xxxx X. Xxxx (the “Executive”).
WHEREAS, the Executive and Travelport Limited previously entered into an Employment Agreement
dated August 3, 2009 (the “Prior Agreement”);
WHEREAS, in connection with, and subject to, the completion of the proposed initial public
offering (the “IPO”) of the Company’s ordinary shares, the Company and Executive wish to
enter into this Agreement, which shall supersede the Prior Agreement in its entirety;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein and for other
good and valuable consideration, the sufficiency of which is acknowledged, the parties agree as
follows:
1. Term of Employment. Subject to the provisions of Section 7 of this Agreement,
Executive shall continue to be employed by the Company for a period commencing on the date (the
“IPO Date”) of the completion of the IPO and ending on the date which is 18 months
following the IPO Date (such ending date, the “IPO Initial Period End Date,” and such
period, the “Employment Term”) on the terms and subject to the conditions set forth in this
Agreement; provided, however, that commencing with the IPO Initial Period End Date and on each
anniversary thereof (each an “Extension Date”), the Employment Term shall be automatically
extended for an additional one-year period, unless the Company or Executive provides the other
party hereto 120 days (or such lesser period as provided in Section 7(c)(ii)(F) hereof) prior
written notice before the next Extension Date that the Employment Term shall not be so extended.
In the event the IPO is not completed by December 31, 2010, this Agreement shall be null and void
and of no effect. For the avoidance of doubt, the Prior Agreement remains in full force and effect
until this Agreement takes effect upon the completion of the IPO.
2. Position.
(a) During the Employment Term, Executive shall serve as the Company’s Executive Vice
President, Chief Administrative Officer and General Counsel. In such position, Executive shall
have such duties and authority as shall be determined from time to time by the Board of Directors
of the Company (the “Board”) and the Chief Executive Officer of the Company.
(b) During the Employment Term, Executive will devote Executive’s full business time and best
efforts to the performance of Executive’s duties hereunder and will not engage in any other
business, profession or occupation for compensation or otherwise which would conflict or interfere
with the rendition of such services either directly or indirectly, without the prior written
consent of the Board; provided that nothing herein shall preclude
Executive, subject to the prior approval of the Board, from accepting appointment to or
continuing to serve on any board of directors or trustees of any business corporation or any
charitable organization; provided in each case, and in the aggregate, that such activities do not
conflict or interfere with the performance of Executive’s duties hereunder or conflict with Section
9.
3. Base Salary. During the Employment Term, the Company shall pay Executive a base
salary at the annual rate of no less than $475,000 payable in regular installments in accordance
with the Company’s usual payment practices. Executive shall be entitled to such increases in
Executive’s base salary, if any, as may be determined from time to time in the sole discretion of
the Board. Executive’s annual base salary, as in effect from time to time, is hereinafter referred
to as the “Base Salary.”
4. Annual Bonus. With respect to each full fiscal year during the Employment Term,
Executive shall be eligible to earn an annual bonus award (an “Annual Bonus”) of no less than one
hundred percent (100%) of Executive’s Base Salary (the “Target”) based upon the achievement of an
annual EBITDA target established by the Board within the first three months of each fiscal year
during the Employment Term. The Annual Bonus, if any, shall be paid to Executive within two and
one-half (2.5) months after the end of the applicable fiscal year.
5. Employee Benefits. During the Employment Term, Executive shall be entitled to
participate in the Company’s employee benefit plans (other than annual bonus and incentive plans)
as in effect from time to time (collectively “Employee Benefits”), on the same basis as
those benefits are generally made available to other senior executives of the Company.
6. Business Expenses. During the Employment Term, reasonable business expenses
incurred by Executive in the performance of Executive’s duties hereunder shall be reimbursed by the
Company in accordance with Company policies.
7. Termination. The Employment Term and Executive’s employment hereunder may be
terminated by either party at any time and for any reason; provided that Executive will be
required to give the Company at least 30 days advance written notice of any resignation of
Executive’s employment (provided that Executive shall give 90 days advance written notice of
Executive’s resignation of employment as a result of a Constructive Termination pursuant to Section
7(c)(ii)(F) hereof). Notwithstanding any other provision of this Agreement, the provisions of this
Section 7 shall exclusively govern Executive’s rights upon termination of employment with the
Company and its affiliates.
(a) By the Company For Cause or By Executive Other Than as a Result of a Constructive
Termination.
(i) The Employment Term and Executive’s employment hereunder may be terminated by the Company
for Cause (as defined below) and shall terminate automatically upon Executive’s resignation other
than as a result of a Constructive Termination (as defined in Section 7(c)); provided that
Executive will be required to give the Company at least 30 days advance written notice of a
resignation other than as a result of a Constructive Termination.
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(ii) For purposes of this Agreement, “Cause” shall mean (A) Executive’s failure
substantially to perform Executive’s duties to the Company (other than as a result of total or
partial incapacity due to Disability) for a period of 10 days following receipt of written notice
from the Company by Executive of such failure; provided that it is understood that this clause (A)
shall not apply if a Company terminates Executive’s employment because of dissatisfaction with
actions taken by Executive in the good faith performance of Executive’s duties to the Company, (B)
theft or embezzlement of property of the Company or dishonesty in the performance of Executive’s
duties to the Company, other than de minimis conduct that would not typically result in sanction by
an employer of an executive in similar circumstances, (C) conviction which is not subject to
routine appeals of right or a plea of “no contest” for (x) a felony under the laws of the United
States or any state thereof or (y) a crime involving moral turpitude for which the potential
penalty includes imprisonment of at least one year, (D) Executive’s willful malfeasance or willful
misconduct in connection with Executive’s duties or any act or omission which is materially
injurious to the financial condition or business reputation of the Company or its affiliates, or
(E) Executive’s breach of the provisions of Sections 9 or 10 of this Agreement (excluding a breach
of Section 10(a) by a statement made by Executive in good faith in Executive’s employment
capacity).
(iii) If Executive’s employment is terminated by the Company for Cause, or if Executive
resigns other than as a result of a Constructive Termination, Executive shall be entitled to
receive:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned, but unpaid, as of the date of termination for the
immediately preceding fiscal year, paid in accordance with Section 4 (except to the
extent payment is otherwise deferred pursuant to any applicable deferred
compensation arrangement with the Company);
(C) reimbursement, within 60 days following submission by Executive to the
Company of appropriate supporting documentation) for any unreimbursed business
expenses properly incurred by Executive in accordance with Company policy prior to
the date of Executive’s termination; provided claims for such reimbursement
(accompanied by appropriate supporting documentation) are submitted to the Company
within 90 days following the date of Executive’s termination of employment; and
(D) such Employee Benefits, if any, as to which Executive may be entitled under
the employee benefit plans of the Company (the amounts described in clauses (A)
through (D) hereof being referred to as the “Accrued Rights”).
Following such termination of Executive’s employment by the Company for Cause or resignation
by Executive other than as a result of a Constructive Termination, except as set forth in this
Section 7(a)(iii), Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
(b) Disability or Death.
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(i) The Employment Term and Executive’s employment hereunder shall terminate upon Executive’s
death and may be terminated by the Company if Executive becomes physically or mentally
incapacitated and is therefore unable for a period of nine (9) consecutive months or for an
aggregate of twelve (12) months in any eighteen (18) consecutive month period to perform
Executive’s duties (such incapacity is hereinafter referred to as “Disability”). Any
question as to the existence of the Disability of Executive as to which Executive and the Company
cannot agree shall be determined in writing by a qualified independent physician mutually
acceptable to Executive and the Company. If Executive and the Company cannot agree as to a
qualified independent physician, each shall appoint such a physician and those two physicians shall
select a third who shall make such determination in writing. The determination of Disability made
in writing to the Company and Executive shall be final and conclusive for all purposes of the
Agreement and any other agreement between any Company and Executive that incorporates the
definition of “Disability”.
(ii) Upon termination of Executive’s employment hereunder for either Disability or death,
Executive or Executive’s estate (as the case may be) shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any Annual Bonus, if any, that Executive would have
been entitled to receive pursuant to Section 4 hereof in such year based upon the
percentage of the fiscal year that shall have elapsed through the date of
Executive’s termination of employment, payable when such Annual Bonus would have
otherwise been payable to Executive pursuant to Section 4 had Executive’s employment
not terminated;
(C) full and immediate vesting of any awards granted pursuant to the Company’s
IPO Incentive Scheme and the TDS Investor (Cayman) L.P. 2006 Interest Plan (or any
successor plan(s) established by the Company) that are unvested at the date of
termination of the Executive’s employment (including, for the avoidance of doubt,
any unvested equity that remains unvested due to the failure to in any prior
calendar year(s) to achieve the relevant annual performance goals at target) and
based upon the award’s target value at the time of the grant of the award, and
payment in respect of such awards in accordance with the terms thereof; and
(D) vesting of the awards granted pursuant to any equity plan of the Company
(other than awards granted pursuant to the Company’s IPO Incentive Scheme or the TDS
Investor (Cayman) L.P. 2006 Interest Plan (or any successor plan(s) established by
the Company)) subsequent to the IPO (including pursuant to the Company’s Performance
Share Plan), as, and to the extent, described in the documentation related to such
awards; provided that in each case such vesting shall not be less favorable to the
Executive than (1) in the case of an award which vests, in whole or in part, on the
basis of performance, the portion of such award which would have vested assuming (i)
that the Executive’s employment continued for 18 months following the termination of
the Executive’s employment, (ii) that the award vests ratably on a monthly basis
over the remainder of the performance
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period (and beginning on the prior vesting date), and (iii) performance at
target, and (2) in the case of an award which vests solely on the basis of continued
employment, the portion of the award that would have vested assuming (i) that the
Executive’s employment continued for 18 months following the termination of the
Executive’s employment, and (ii) that the award vests ratably on a monthly basis
over the vesting period; provided, however, that, for purposes of Section
7(b)(ii)(C) and this Section 7(b)(ii)(D), “target” shall be the amount of equity
that would have vested had the Company achieved its budgeted target level of
performance (measured at the time performance targets are put in place) and that in
any event it shall not be less than 66.7% of the award; further provided, however,
that nothing in Section 7(b)(ii)(C) or this Section 7(b)(ii)(D) shall restrict the
ability of the Board to grant more favorable vesting terms to the Executive.
Following Executive’s termination of employment due to death or Disability, except as set
forth in this Section 7(b)(ii), Executive shall have no further rights to any compensation or any
other benefits under this Agreement.
(c) By the Company Without Cause or Resignation by Executive as a result of Constructive
Termination.
(i) The Employment Term and Executive’s employment hereunder may be terminated by the Company
without Cause or by Executive’s as a result of a Constructive Termination.
(ii) For purposes of this Agreement, a “Constructive Termination” shall be deemed to
have occurred upon (A) any material reduction in Executive’s Base Salary or Annual Bonus (excluding
any change in value of equity incentives or a reduction affecting substantially all similarly
situated executives), (B) failure of the Company or its affiliates to pay compensation or benefits
when due, in each case which is not cured within 30 days following the Company’s receipt of written
notice from Executive describing the event constituting a Constructive Termination, (C) a material
and sustained diminution to Executive’s duties and responsibilities as of the date of this
Agreement, (D) the primary business office for Executive being relocated by more than 50 miles from
New York, New York, it being understood that relocation of the Company’s headquarters in connection
with the IPO (should an IPO occur) shall not constitute Constructive Termination provided that the
Company does not require Executive to move his primary business office from New York, New York, (E)
the Company’s election not to renew the initial Employment Term or any subsequent extension thereof
(except as a result of Executive’s reaching retirement age, as determined by Company policy) or (F)
the Executive’s election not to renew the Employment Term for the one-year period immediately
following the IPO Initial Period End Date by providing the Company 90 days prior written notice of
such election before the applicable IPO Initial Period End Date; provided that any of the events
described in clauses (A)-(D) of this Section 7(c)(ii) shall constitute a Constructive Termination
only if the Company fails to cure such event within 30 days after receipt from Executive of written
notice of the event which constitutes a Constructive Termination; provided, further, that a
“Constructive Termination” shall cease to exist for an event on the 60th day following the later of
its
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occurrence or Executive’s knowledge thereof, unless Executive has given the Company written
notice thereof prior to such date.
(iii) If Executive’s employment is terminated by the Company without Cause (other than by
reason of death or Disability) or if Executive resigns as a result of a Constructive Termination,
Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any Annual Bonus, if any, that Executive would have
been entitled to receive pursuant to Section 4 hereof in such year based upon the
percentage of the fiscal year that shall have elapsed through the date of
Executive’s termination of employment, payable when such Annual Bonus would have
otherwise been payable to Executive pursuant to Section 4 had Executive’s employment
not terminated;
(C) subject to Executive’s execution, delivery, and non-revocation of a
separation agreement and general release substantially in the form attached hereto
as Exhibit A (“the General Release”) within forty-five (45) days following
termination of employment, and further subject to continued compliance with the
provisions of Sections 9 and 10, (x) payment of three (3) times the sum of both the
Base Salary and Annual Bonus at Target (“Severance Pay”) and (y) the
executive benefits provided for in the General Release for a period equal to
thirty-six (36) months (or a lump sum cash equivalent of such benefits). The
Severance Pay shall be paid as follows: (1) one third (33.3%) of the Severance Pay
in a lump sum as soon as practicable following the effective date of the General
Release, but no later than sixty (60) days after the Last Day of Employment; (2) one
third (33.3%) of the Severance Pay in a lump sum in the pay period occurring closest
to the one hundred eightieth (180th) day (“Second Severance Payment
Date”), whether occurring before or after the Second Severance Payment Date,
following the termination of Executive’s employment; and (3) the final one third
(33.3%) of the Severance Pay in a lump sum in the pay period occurring closest to
the three hundred sixty-fifth (365th) day (“Third Severance Payment
Date”), whether occurring before or after the Third Severance Payment Date,
following the termination of Executive’s employment; provided that the aggregate
amount described in this clause (C) shall be reduced by the present value of any
other cash severance benefits payable to Executive under any other severance plans,
programs or arrangements of the Company or its affiliates (which, for the avoidance
of doubt, shall exclude any cash payments related to equity in the Company or its
affiliates);
(D) full and immediate vesting of any awards granted pursuant to the Company’s
IPO Incentive Scheme and the TDS Investor (Cayman) L.P. 2006 Interest Plan (or any
successor plan(s) established by the Company) that are unvested at the date of
termination of the Executive’s employment (including, for the avoidance of doubt,
any unvested equity that remains unvested due to the failure to in any prior
calendar year(s) to achieve the relevant annual performance
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goals at target) and based upon the award’s target value at the time of the
grant of the award, and payment in respect of such awards in accordance with the
terms thereof; and
(E) vesting of the awards granted pursuant to any equity plan of the Company
(other than awards granted pursuant to the Company’s IPO Incentive Scheme or the TDS
Investor (Cayman) L.P. 2006 Interest Plan (or any successor plan(s) established by
the Company)) subsequent to the IPO (including pursuant to the Company’s Performance
Share Plan), as, and to the extent, described in the documentation related to such
awards; provided that in each case such vesting shall not be less favorable to the
Executive than (1) in the case of an award which vests, in whole or in part, on the
basis of performance, the portion of such award which would have vested assuming (i)
that the Executive’s employment continued for 18 months following the termination of
the Executive’s employment, (ii) that the award vests ratably on a monthly basis
over the remainder of the performance period (and beginning on the prior vesting
date), and (iii) performance at target, and (2) in the case of an award which vests
solely on the basis of continued employment, the portion of the award that would
have vested assuming (i) that the Executive’s employment continued for 18 months
following the termination of the Executive’s employment, and (ii) that the award
vests ratably on a monthly basis over the vesting period; provided, however, that,
for purposes of Section 7(c)(iii)(D) and this Section 7(c)(iii)(E), “target” shall
be the amount of equity that would have vested had the Company achieved its budgeted
target level of performance (measured at the time performance targets are put in
place) and that in any event it shall not be less than 66.7% of the award; further
provided, however, that nothing in Section 7(c)(iii)(D) and this Section
7(c)(iii)(E) shall restrict the ability of the Board to grant more favorable vesting
terms to the Executive.
Following Executive’s termination of employment by the Company without Cause (other than by
reason of Executive’s death or Disability) or by Executive’s resignation as a result of a
Constructive Termination, except as set forth in this Section 7(c)(iii), Executive shall have no
further rights to any compensation or any other benefits under this Agreement.
(d) Expiration of Employment Term.
(i) Election Not to Extend the Employment Term. In the event either party elects not to
extend the Employment Term pursuant to Section 1, unless Executive’s employment is earlier
terminated pursuant to paragraphs (a), (b) or (c) of this Section 7 and except as set forth in
paragraph (c)(ii) of this Section 7, Executive’s termination of employment hereunder (whether or
not Executive continues as an employee of the Company thereafter) shall be deemed to occur on the
close of business on the day immediately preceding the next scheduled Extension Date and Executive
shall be entitled to receive the Accrued Rights. Following such termination of Executive’s
employment hereunder as a result of either party’s election not to extend the Employment Term,
except as set forth in this Section 7(d)(i), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.
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(ii) Continued Employment Beyond the Expiration of the Employment Term. Unless the parties
otherwise agree in writing, continuation of Executive’s employment with the Company beyond the
expiration of the Employment Term shall be deemed an employment at-will and shall not be deemed to
extend any of the provisions of this Agreement and Executive’s employment may thereafter be
terminated at will by either Executive or the Company; provided that the provisions of Sections 9,
10 and 11 of this Agreement shall survive any termination of this Agreement or Executive’s
termination of employment hereunder.
(e) Notice of Termination. Any purported termination of employment by the Company or
by Executive (other than due to Executive’s death) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 12(i) hereof. For purposes of
this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of employment under the
provision so indicated.
(f) Board/Committee Resignation. Upon termination of Executive’s employment for any
reason, Executive agrees to resign, as of the date of such termination and to the extent
applicable, from the Board (and any committees thereof) and the Board of Directors (and any
committees thereof) of any of the Company’s affiliates.
8.
Change in Control.
(a) In the event that a Change in Control (as hereinafter defined)
occurs during the Employment Term, the Executive shall become vested in any unvested equity-based
awards then held by the Executive with respect to the Company or its affiliates as, and to the
extent, described in the definitive documentation related to such awards, provided that such
vesting shall be no less favorable than (i) with respect to any unvested awards granted pursuant to
the TDS Investor (Cayman) L.P. 2006 Interest Plan (or any successor plan(s) established by the
Company) or any unvested awards granted pursuant to the Travelport IPO Incentive Scheme, the
Executive shall be entitled to full and immediate vesting of all such awards (including, for the
avoidance of doubt, any unvested equity that is eligible for “catch up” vesting) and (ii) with
respect to any unvested awards granted subsequent to the IPO (including pursuant to the Company’s
Performance Share Plan), the Executive shall be entitled to (A) in the case of an unvested award
that vests, in whole or in part, on the basis of performance, vesting at target and (B) in the case
of an unvested award that vests solely based upon the passage of time and continued employment,
full and immediate vesting of all such awards; provided, however, that, for purposes of this
Section 8(a), “target” shall be the amount of equity that would have vested had the Company
achieved its budgeted target level of performance (measured at the time performance targets are put
in place) and that in any event it shall not be less than 66.7% of the award; further provided,
however, that nothing in this Section 8(a) shall restrict the ability of the Board to grant more
favorable vesting or terms to the Executive. (b) A “Change in Control” shall be deemed to have
occurred if the event or events set forth in any of the following paragraphs shall have occurred:
(i) | any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 50% or more of the combined voting power |
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of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (I) of paragraph (ii) below; or | |||
(ii) | there is consummated a merger or consolidation or scheme of arrangement of the Company or any direct or indirect subsidiary of the Company with any other corporation or other entity, other than (I) a merger, consolidation or scheme of arrangement which results in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) at least 50% of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation, or (II) a merger, consolidation or scheme of arrangement effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its affiliates) representing 25% or more of the combined voting power of the Company’s then outstanding securities; or | ||
(iii) | the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or | ||
(iv) | any Person (or group of Persons acting in concert) obtains control (within the meaning of section 840 of the UK Income Tax and Corporation Taxes Act 1988 as if it applied to a group of Persons acting in concert as well as a Person) of the Company. |
(a) For purposes of this Section 8, the following terms shall have the meanings indicated
below:
(i) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.
(ii) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.
(iii) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not
include (I) the Company or any of its subsidiaries, (II) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its affiliates, (III) an
underwriter temporarily holding securities pursuant to an offering of such securities, or (IV) a
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corporation owned, directly or indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of shares in the Company.
9. Non-Competition.
(a) From the date hereof while employed by the Company and for a two-year period following the
date Executive ceases to be employed by the Company (the “Restricted Period”), irrespective of the
cause, manner or time of any termination, Executive shall not use his status with the Company or
any of its affiliates to obtain loans, goods or services from another organization on terms that
would not be available to him in the absence of his relationship to the Company or any of its
affiliates.
(b) During the Restricted Period, Executive shall not make any statements or perform any acts
intended to or which may have the effect of advancing the interest of any Competitors of the
Company or any of its affiliates or in any way injuring the interests of the Company or any of its
affiliates and the Company and its affiliates shall not make or authorize any person to make any
statement that would in any way injure the personal or business reputation or interests of
Executive; provided however, that, subject to Section 10, nothing herein shall preclude the Company
and its affiliates or Executive from giving truthful testimony under oath in response to a subpoena
or other lawful process or truthful answers in response to questions from a government
investigation; provided, further, however, that nothing herein shall prohibit the Company and its
affiliates from disclosing the fact of any termination of Executive’s employment or the
circumstances for such a termination. For purposes of this Section 9(b), the term “Competitor”
means any enterprise or business that is engaged in, or has plans to engage in, at any time during
the Restricted Period, any activity that competes with the businesses conducted during or at the
termination of Executive’s employment, or then proposed to be conducted, by the Company and its
affiliates in a manner that is or would be material in relation to the businesses of the Company or
the prospects for the businesses of the Company (in each case, within 100 miles of any geographical
area where the Company or its affiliates manufactures, produces, sells, leases, rents, licenses or
otherwise provides its products or services). During the Restricted Period, Executive, without
prior express written approval by the Board, shall not (A) engage in, or directly or indirectly
(whether for compensation or otherwise) manage, operate, or control, or join or participate in the
management, operation or control of a Competitor, in any capacity (whether as an employee, officer,
director, partner, consultant, agent, advisor, or otherwise) or (B) develop, expand or promote, or
assist in the development, expansion or promotion of, any division of an enterprise or the business
intended to become a Competitor at any time after the end of the Restricted Period or (C) own or
hold a Proprietary Interest in, or directly furnish any capital to, any Competitor of the Company.
Executive acknowledges that the Company’s and its affiliates businesses are conducted nationally
and internationally and agrees that the provisions in the foregoing sentence shall operate
throughout the United States and the world (subject to the definition of “Competitor”).
(c) During the Restricted Period, Executive, without express prior written approval from the
Board, shall not solicit any members or the then current clients of the
Company or any of its affiliates for any existing business of the Company or any of its
affiliates or discuss with any employee of the Company or any of its affiliates information or
operations of any business intended to compete with the Company or any of its affiliates.
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(d) During the Restricted Period, Executive shall not interfere with the employees or affairs
of the Company or any of its affiliates or solicit or induce any person who is an employee of the
Company or any of its affiliates to terminate any relationship such person may have with the
Company or any of its affiliates, nor shall Executive during such period directly or indirectly
engage, employ or compensate, or cause or permit any person with which Executive may be affiliated,
to engage, employ or compensate, any employee of the Company or any of its affiliates.
(e) For the purposes of this Agreement, “Proprietary Interest” means any legal, equitable or
other ownership, whether through stock holding or otherwise, of an interest in a business, firm or
entity; provided that ownership of less than 5% of any class of equity interest in a publicly held
company shall not be deemed a Proprietary Interest.
(f) The period of time during which the provisions of this Section 9 shall be in effect shall
be extended by the length of time during which Executive is in breach of the terms hereof as
determined by any court of competent jurisdiction on the Company’s application for injunctive
relief.
(g) Executive agrees that the restrictions contained in this Section 9 are an essential
element of the compensation Executive is granted hereunder and but for Executive’s agreement to
comply with such restrictions, the Company would not have entered into this Agreement.
(h) It is expressly understood and agreed that although Executive and the Company consider the
restrictions contained in this Section 9 to be reasonable, if a final judicial determination is
made by a court of competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive, the provisions of
this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum
time and territory and to such maximum extent as such court may judicially determine or indicate to
be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make
it enforceable, such finding shall not affect the enforceability of any of the other restrictions
contained herein.
10. Confidentiality; Intellectual Property.
(a) Confidentiality.
(i) Executive will not at any time (whether during or after Executive’s employment with the
Company) (x) retain or use for the benefit, purposes or account of Executive or any other person;
or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any person
outside the Company (other than its professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential information —including without limitation
trade secrets, know-how, research and development, software,
databases, inventions, processes, formulae, technology, designs and other intellectual
property, information concerning finances, investments, profits, pricing, costs, products,
services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting,
training, advertising,
11
sales, marketing, promotions, government and regulatory activities and
approvals — concerning the past, current or future business, activities and operations of the
Company, its subsidiaries or affiliates and/or any third party that has disclosed or provided any
of same to the Company on a confidential basis (“Confidential Information”) without the prior
written authorization of the Board.
(ii) “Confidential Information” shall not include any information that is (a) generally known
to the industry or the public other than as a result of Executive’s breach of this covenant or any
breach of other confidentiality obligations by third parties; (b) made legitimately available to
Executive by a third party without breach of any confidentiality obligation; or (c) required by law
to be disclosed; provided that Executive shall give prompt written notice to the Company of such
requirement, disclose no more information than is so required, and cooperate, at the Company’s
cost, with any attempts by the Company to obtain a protective order or similar treatment.
(iii) Except as required by law, Executive will not disclose to anyone, other than Executive’s
immediate family and legal or financial advisors, the existence or contents of this Agreement
(unless this Agreement shall be publicly available as a result of a regulatory filing made by the
Company or its affiliates); provided that Executive may disclose to any prospective future employer
the provisions of Sections 9 and 10 of this Agreement provided they agree to maintain the
confidentiality of such terms.
(iv) Upon termination of Executive’s employment with the Company for any reason, Executive
shall (x) cease and not thereafter commence use of any Confidential Information or intellectual
property (including without limitation, any patent, invention, copyright, trade secret, trademark,
trade name, logo, domain name or other source indicator) owned or used by the Company, its
subsidiaries or affiliates; (y) immediately destroy, delete, or return to the Company, at the
Company’s option, all originals and copies in any form or medium (including memoranda, books,
papers, plans, computer files, letters and other data) in Executive’s possession or control
(including any of the foregoing stored or located in Executive’s office, home, laptop or other
computer, whether or not Company property) that contain Confidential Information or otherwise
relate to the business of the Company, its affiliates and subsidiaries, except that Executive may
retain only those portions of any personal notes, notebooks and diaries that do not contain any
Confidential Information; and (z) notify and fully cooperate with the Company regarding the
delivery or destruction of any other Confidential Information of which Executive is or becomes
aware.
(b) Intellectual Property.
(i) If Executive has created, invented, designed, developed, contributed to or improved any
works of authorship, inventions, intellectual property, materials, documents or other work product
(including without limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with
third parties, prior to Executive’s employment by the Company, that are relevant to
or implicated by such employment (“Prior Works”), Executive hereby grants the Company a
perpetual, non-exclusive, royalty-free, worldwide, assignable, sublicensable license under all
rights and intellectual property rights (including rights under patent, industrial property,
12
copyright, trademark, trade secret, unfair competition and related laws) therein for all purposes
in connection with the Company’s current and future business.
(ii) If Executive creates, invents, designs, develops, contributes to or improves any Works,
either alone or with third parties, at any time during Executive’s employment by the Company and
within the scope of such employment and/or with the use of any the Company resources (“Company
Works”), Executive shall promptly and fully disclose same to the Company and hereby irrevocably
assigns, transfers and conveys, to the maximum extent permitted by applicable law, all rights and
intellectual property rights therein (including rights under patent, industrial property,
copyright, trademark, trade secret, unfair competition and related laws) to the Company to the
extent ownership of any such rights does not vest originally in the Company.
(iii) Executive agrees to keep and maintain adequate and current written records (in the form
of notes, sketches, drawings, and any other form or media requested by the Company) of all Company
Works. The records will be available to and remain the sole property and intellectual property of
the Company at all times.
(iv) Executive shall take all requested actions and execute all requested documents (including
any licenses or assignments required by a government contract) at the Company’s expense (but
without further remuneration) to assist the Company in validating, maintaining, protecting,
enforcing, perfecting, recording, patenting or registering any of the Company’s rights in the Prior
Works and Company Works. If the Company is unable for any other reason to secure Executive’s
signature on any document for this purpose, then Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Executive’s agent and attorney
in fact, to act for and in Executive’s behalf and stead to execute any documents and to do all
other lawfully permitted acts in connection with the foregoing.
(v) Executive shall not improperly use for the benefit of, bring to any premises of, divulge,
disclose, communicate, reveal, transfer or provide access to, or share with the Company any
confidential, proprietary or non-public information or intellectual property relating to a former
employer or other third party without the prior written permission of such third party. Executive
hereby indemnifies, holds harmless and agrees to defend the Company and its officers, directors,
partners, employees, agents and representatives from any breach of the foregoing covenant.
Executive shall comply with all relevant policies and guidelines of the Company, including
regarding the protection of confidential information and intellectual property and potential
conflicts of interest. Executive acknowledges that the Company may amend any such policies and
guidelines from time to time, and that Executive remains at all times bound by their most current
version.
(vi) The provisions of Section 9 and 10 shall survive the termination of Executive’s
employment for any reason.
11. Specific Performance. Executive acknowledges and agrees that the Company’s
remedies at law for a breach or threatened breach of any of the provisions of Sections 9 or 10
would be inadequate and the Company would suffer irreparable damages as a
13
result of such breach or
threatened breach. In recognition of this fact, Executive agrees that, in the event of such a
breach or threatened breach, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to cease making any payments or providing any benefit otherwise required by
this Agreement and obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable remedy which may then
be available.
12. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of laws principles thereof.
(b) Entire Agreement/Amendments. Except as expressly set forth in this Agreement or
in any definitive documentation regarding Executive’s equity granted or purchased pursuant to the
TDS Investor (Cayman) L.P. 2006 Interest Plan (or any successor plan(s) established by the
Company), this Agreement contains the entire understanding of the parties with respect to the
employment of Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the subject matter herein
other than those expressly set forth herein. This Agreement may not be altered, modified, or
amended except by written instrument signed by the parties hereto.
(c) No Waiver. The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive
such party of the right thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
(d) Severability. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Agreement shall not be affected
thereby.
(e) Assignment. This Agreement, and all of Executive’s rights and duties hereunder,
shall not be assignable or delegable by Executive. Any purported assignment or delegation by
Executive in violation of the foregoing shall be null and void ab initio and of no force and
effect. This Agreement may be assigned by the Company to a person or entity which is an affiliate
or a successor in interest to substantially all of the business operations of the Company. Upon
such assignment, the rights and obligations of the Company hereunder shall become the rights and
obligations of such affiliate or successor person or entity.
(f) Set Off; No Mitigation. The Company’s obligation to pay Executive the amounts
provided and to make the arrangements provided hereunder shall be subject to set-off, counterclaim
or recoupment of amounts owed by Executive to the Company or its affiliates. Executive shall not
be required to mitigate the amount of any payment provided for pursuant to
this Agreement by seeking other employment, taking into account the provisions of Section 9 of
this Agreement.
14
(g) Compliance with IRC Section 409A. Notwithstanding anything herein to the
contrary, (i) if at the time of Executive’s termination of employment with the Company Executive is
a “specified employee” as defined in Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”) and the deferral of the commencement of any payments or benefits otherwise payable
hereunder as a result of such termination of employment is necessary in order to prevent any
accelerated or additional tax under Section 409A of the Code, then the Company will defer the
commencement of the payment of any such payments or benefits hereunder (without any reduction in
such payments or benefits ultimately paid or provided to Executive) until the date that is six
months following Executive’s termination of employment with the Company (or the earliest date as is
permitted under Section 409A of the Code) and (ii) if any other payments of money or other benefits
due to Executive hereunder could cause the application of an accelerated or additional tax under
Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make
such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment
or other benefits shall be restructured, to the extent possible, in a manner, determined by the
Board, that does not cause such an accelerated or additional tax. The Company shall consult with
Executive in good faith regarding the implementation of the provisions of this Section 12(g);
provided that neither the Company nor any of its employees or representatives shall have any
liability to Executive with respect to thereto.
(h) Successors; Binding Agreement. This Agreement shall inure to the benefit of and
be binding upon personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
(i) Notice. For the purpose of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand or overnight courier or three days after it has been mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the respective addresses
set forth below in this Agreement, or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that notice of change of address shall be
effective only upon receipt.
If to the Company, addressed to:
Travelport plc
Attention: Company Secretary
Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Fax: x000 0 0000 000
Attention: Company Secretary
Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Fax: x000 0 0000 000
with a copy to:
Xxxx Xxxxxx, Chief Executive Officer
Travelport
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Travelport
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
00
Xxx Xxxx, XX 00000
Fax: (000)000-0000
Fax: (000)000-0000
If to Executive, to the address set forth on the signature page of this Agreement or at the
current address listed in the Company’s records.
(j) Executive Representation. Executive hereby represents to the Company that the
execution and delivery of this Agreement by Executive and the Company and the performance by
Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise
contravene, the terms of any employment agreement or other agreement or policy to which Executive
is a party or otherwise bound.
(k) Prior Agreements. Upon the commencement of the Employment Term, this Agreement
supersedes all prior agreements and understandings (including verbal agreements) between Executive
and the Company and/or its affiliates regarding the terms and conditions of Executive’s employment
with the Company and/or its affiliates including, without limitation, the Employment Agreement
between Travelport Limited and Executive dated August 3, 2009 (collectively, the “Prior
Agreements”); provided, however that this Agreement does not supersede any prior written
agreements with Executive regarding his relocation. The Prior Agreements are hereby terminated
upon the commencement of the Employment Term covered by this Agreement.
(l) Cooperation. Executive shall provide Executive’s reasonable cooperation in
connection with any action or proceeding (or any appeal from any action or proceeding) which
relates to events occurring during Executive’s employment hereunder. The Company will reimburse
Executive for any and all reasonable expenses reasonably incurred in connection with Executive’s
compliance with this Section 12(l). This provision shall survive any termination of this
Agreement.
(m) Withholding Taxes; Tax Equalization. The Company may withhold from any amounts
payable under this Agreement such Federal, state and local income taxes and employee social
security contributions as may be required to be withheld pursuant to any applicable law or
regulation in the US. Notwithstanding the foregoing, it is the intent of the parties hereto that
the Company shall equalize Executive’s federal, state, and local income tax and social security
contribution obligation as if Executive’s compensation and other benefits provided under this
Agreement were earned in Executive’s home country and subject only to federal, state, and local
income tax and social security in Executive’s home country. As such, the parties hereto expressly
acknowledge and agree that (i) the Company or its affiliates shall pay all of Executive’s non-US
income tax obligations (including, without limitation, health levy
and any other income levy
applicable, and employee social security contributions to the extent that Executive is not exempt
from such contribution obligations in the non-US location) associated with Executive’s compensation
and other benefits provided under this Agreement, in such amounts and at such times as required by
applicable non-US income tax, and social security law and any other applicable law (whether
directly to the non-US taxing authority, or through
reimbursement to Executive on finalization of the non US total liabilities), plus provide
such additional amounts as are required to gross up Executive’s compensation and benefits provided
under this Agreement for any non-US income taxes (including, without limitation, health levy
16
and
any other income levy applicable, and employee social security contributions to the extent that
Executive is not exempt from such contribution obligations in the non-US location) or other
Federal, state and local income taxes and employee social security contributions of Executive’s
home country associated with the payments and reimbursements required by this Section 12(m),
notwithstanding any change in applicable tax law after the date hereof.
(n) Counterparts. This Agreement may be signed in counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
(o) Arbitration. Except as otherwise provided in Section 11 of this Agreement, any
controversy, dispute, or claim arising out of, in connection with, or in relation to, the
interpretation, performance or breach of this Agreement, including, without limitation, the
validity, scope, and enforceability of this section, may at the election of any party, be solely
and finally settled by arbitration conducted in New York, New York, by and in accordance with the
then existing rules for commercial arbitration of the American Arbitration Association, or any
successor organization and with the Expedited Procedures thereof (collectively, the “Rules”). Each
of the parties hereto agrees that such arbitration shall be conducted by a single arbitrator
selected in accordance with the Rules; provided that such arbitrator shall be experienced in
deciding cases concerning the matter which is the subject of the dispute. Any of the parties may
demand arbitration by written notice to the other and to the Arbitrator set forth in this Section
12(o) (“Demand for Arbitration”). Each of the parties agrees that if possible, the award shall be
made in writing no more than 30 days following the end of the proceeding. Any award rendered by
the arbitrator(s) shall be final and binding and judgment may be entered on it in any court of
competent jurisdiction. Each of the parties hereto agrees to treat as confidential the results of
any arbitration (including, without limitation, any findings of fact and/or law made by the
arbitrator) and not to disclose such results to any unauthorized person. The parties intend that
this agreement to arbitrate be valid, enforceable and irrevocable. In the event of any arbitration
with regard to this Agreement, each party shall pay its own legal fees and expenses, provided,
however, that the parties agree to share the cost of the Arbitrator’s fees.
17
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
TRAVELPORT PLC | ||||||
By: | ||||||
Title: | ||||||
EXECUTIVE | ||||||
Xxxx X. Xxxx |
18
Exhibit A – Form of General Release
AGREEMENT AND GENERAL RELEASE
Travelport plc (“Travelport”) and Travelport Operations, Inc. (collectively, the “Company”) and
[NAME OF EXECUTIVE] (hereinafter collectively with his heirs, executors, administrators, successors
and assigns, “EXECUTIVE”), mutually desire to enter into this Agreement and General Release
(“Agreement” or “Agreement and General Release”) and agree that:
The terms of this Agreement are the products of mutual negotiation and compromise between
EXECUTIVE and the Company; and
The meaning, effect and terms of this Agreement have been fully explained to EXECUTIVE; and
EXECUTIVE is hereby advised, in writing, by the Company that he should consult with an
attorney prior to executing this Agreement; and
EXECUTIVE is being afforded twenty-one (21) days from the date of this Agreement to consider
the meaning and effect of this Agreement; and
EXECUTIVE understands that he may revoke the general release contained in paragraph 4 of this
Agreement (“the General Release”) for a period of seven (7) calendar days following the day he
executes this Agreement and the General Release shall not become effective or enforceable until the
revocation period has expired, and no revocation has occurred. Any revocation within this
period must be submitted, in writing, to [NAME OF CONTACT] in the Company’s [NAME] Department and
state, “I hereby revoke my acceptance of the General Release.” Said revocation must be personally
delivered to [NAME OF CONTACT] in the Company’s [NAME] Department, or mailed to [NAME OF CONTACT]
in the Company’s [NAME] Department and postmarked within seven (7) calendar days of execution of
this Agreement. In the event of a revocation of the General Release, the remainder of this
Agreement shall remain in full force and effect; and
EXECUTIVE has carefully considered other alternatives to executing this Agreement and General
Release.
THEREFORE, EXECUTIVE and the Company, for the full and sufficient consideration set forth
below, agree as follows:
[EXECUTIVE] Agreement and General Release
[DATE]
Page 2 of 11
[DATE]
Page 2 of 11
1. EXECUTIVE’s employment shall be terminated effective on the Last Day of Employment.
Following his Last Day of Employment, other than as set forth below or in the attached Personal
Statement of Termination Benefits, EXECUTIVE shall not be eligible for any other payments from the
Company.
2. In full satisfaction of the Company’s obligations under Section 7(c)(iii) of the Employment
Agreement, the Company agrees to provide EXECUTIVE with the benefits set forth in the attached
Personal Statement of Termination Benefits under the captions “Accrued Rights”, “Pro Rata Portion
of [YEAR] BONUS”, “Severance Pay” and “Severance Benefits”. The Severance Pay and Severance
Benefits are subject to EXECUTIVE’s continued compliance with the provisions of Section 9 and 10 of
the Employment Agreement. EXECUTIVE understands and agrees that he would not receive the
Severance Pay and Severance Benefits, except for his execution of this Agreement and the
fulfillment of the promises contained herein, and that such consideration is greater than any
amount to which he would otherwise be entitled as an employee of the Company.
3. The Company will also provide EXECUTIVE with a neutral reference to any entity other than
the Released Parties. Upon inquiry to the Human Resources department, prospective employers (other
than the Released Parties) will be advised only as to the dates of EXECUTIVE’s employment and his
most recent job title. Last salary will be provided if EXECUTIVE has provided a written release
for the same.
4. Except as otherwise expressly provided by this Agreement or the right to enforce the terms
of this Agreement, EXECUTIVE, of his own free will knowingly and voluntarily releases and forever
discharges the Company, their current and former parents, and their shareholders, affiliates
(including without limitation Orbitz Worldwide, Inc. and its subsidiaries), subsidiaries,
divisions, predecessors, successors and assigns and the employees, officers, directors, advisors
and agents thereof (collectively referred to throughout this Agreement as the “Released Parties”,
or a “Released Party”) from any and all actions or causes of action, suits, claims, charges,
complaints, promises demands and contracts (whether oral or written, express or implied from any
source), or any nature whatsoever, known or unknown, suspected or unsuspected, which against the
Released Parties EXECUTIVE or EXECUTIVE’s heirs, executors, administrators, successors or assigns
ever had, now have or hereafter can shall or may have by reason of any matter, cause or thing
whatsoever arising any time prior to the time EXECUTIVE executes this Agreement, including, but not
limited to:
(a) | any and all matters arising out of EXECUTIVE’s employment by the Company or any of the Released Parties and the termination of that employment, and that includes but is not limited to any claims for salary, allegedly unpaid wages, bonuses, commissions, retention pay, severance pay, vacation pay, or any alleged violation of the National Labor Relations Act, any claims for discrimination of any kind under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit |
[EXECUTIVE] Agreement and General Release
[DATE]
Page 3 of 11
[DATE]
Page 3 of 11
Protection Act, Title VII of the Civil Rights Act of 1964, Sections 1981 through 1988 of Title 42 of the United States Code, any claims under the Employee Retirement Income Security Act of 1974 (except for benefits that are or become vested on or prior to the Last Day of Employment, which are not affected by this Agreement, including without limitation any benefits under the 401(k) Plan and the Deferred Compensation Plan, as each of such terms is defined in the attached Personal Statement of Termination Benefits, which the Company acknowledges are fully vested and which shall be paid in accordance with their respective terms and EXECUTIVE’s applicable payment elections), the Americans With Disabilities Act of 1990, the Fair Labor Standards Act (to the extent such claims can be released), the Occupational Safety and Health Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, the Federal Family and Medical Leave Act (to the extent such claims can be released); and | |||
(b) | [APPLICABLE NON-US / STATE(S) PROVISIONS] | ||
(c) | any other federal, state or local civil or human rights law, or any other alleged violation of any local, state or federal law, regulation or ordinance, and/or public policy, implied or expressed contract, fraud, negligence, estoppel, defamation, infliction of emotional distress or other tort or common-law claim having any bearing whatsoever on the terms and conditions and/or termination of his employment with the Company including, but not limited to, any statutes or claims providing for the award of costs, fees, or other expenses, including reasonable attorneys’ fees, incurred in these matters. |
Notwithstanding the foregoing release of claims in this paragraph of this Agreement:
• | Nothing in the release of claims in this paragraph shall impact EXECUTIVE’s equity granted or purchased pursuant to any Travelport plc equity plans (including any successor plan(s) to the TDS Investor (Cayman) L.P. 2006 Interest Plan). | ||
• | EXECUTIVE has a right to indemnification and advancement from and by the Company, to the extent in existence as of the date hereof pursuant to the Company’s by-laws, and such right to indemnification and advancement shall survive the termination of his employment in accordance with such by-laws and applicable law. | ||
• | The Company represents that it had Directors & Officers (“D&O”) insurance coverage, including “tail coverage”, during EXECUTIVE’s employment with the Company and its predecessors, and while he served as an officer for Travelport plc and its subsidiaries, EXECUTIVE was covered under such D&O coverage for the period he served as an officer. The Company further represents that during the term of EXECUTIVE’s employment with the Company, and with respect to “tail coverage” after the Last Day of Employment, the Company’s D&O existing coverage for EXECUTIVE shall be maintained, and in any event, in amounts no less than the amounts of such coverage maintained by Travelport and its |
[EXECUTIVE] Agreement and General Release
[DATE]
Page 4 of 11
[DATE]
Page 4 of 11
affiliates for similarly-situated executives and officers. The Company will use reasonable efforts to provide thirty (30) days prior written notice to EXECUTIVE of any material reduction in D&O coverage. EXECUTIVE shall continue to be entitled to the benefits of such coverage with respect to his services performed through the Last Day of Employment, subject to the applicable terms of the applicable policies. |
5. EXECUTIVE also acknowledges that he does not have any current charge, claim or lawsuit
against one or more of the Released Parties pending before any local, state or federal agency or
court regarding his employment and his separation from employment. EXECUTIVE understands that
nothing in this Agreement prevents him from filing a charge or complaint with or from participating
in an investigation or proceeding conducted by the Equal Employment Opportunity Commission (“EEOC”)
or any other federal, state or local agency charged with the enforcement of any employment or labor
laws, although by signing this Agreement EXECUTIVE is giving up any right to monetary recovery that
is based on any of the claims he has released. EXECUTIVE also understands that if he files such a
charge or complaint, he has, as part of this Agreement, waived the right to receive any
remuneration beyond what EXECUTIVE has received in this Agreement.
6. EXECUTIVE shall not seek or be entitled to any personal recovery, in any action or
proceeding that may be commenced on EXECUTIVE’s behalf in any way arising out of or relating to the
matters released under this Agreement.
7. EXECUTIVE represents that he has not and agrees that he will not in any way disparage the
Company or any Released Party, their current and former officers, directors and employees, or make
or solicit any comments, statements, or the like to the media or to others that may be considered
to be derogatory or detrimental to the good name or business reputation of any of the
aforementioned parties or entities. Following the full execution of and the effective date of this
Agreement, the Company will direct the then-current members of the Travelport Senior Leadership
Team (“the SLT”) not to disparage EXECUTIVE; provided, however, that the Company’s obligation under
this paragraph shall not be ongoing and will be fulfilled once the Company directs the SLT not to
disparage EXECUTIVE.
8. EXECUTIVE understands that if this Agreement were not signed, he would have the right to
voluntarily assist other individuals or entities in bringing claims against Released Parties.
EXECUTIVE hereby waives that right and agrees that he will not provide any such assistance other
than assistance in an investigation or proceeding conducted by the United States Equal Employment
Opportunity Commission or other federal, state or local agency, or pursuant to a valid subpoena or
court order. EXECUTIVE agrees that if such a request for assistance if by any agency of the
federal, state or local government, or pursuant to a valid subpoena or court order, he shall advise
the Company in writing of such a request no later than three (3) days after receipt of such
request.
9. EXECUTIVE acknowledges and confirms that he has returned all Company property to the
Company, including his identification card, and computer hardware and software,
[EXECUTIVE] Agreement and General Release
[DATE]
Page 5 of 11
[DATE]
Page 5 of 11
all paper or computer based files, business documents, and/or other records as well as all copies
thereof, credit cards, keys and any other Company supplies or equipment in his possession.
Finally, any amounts owed to the Company have been paid.
10. This Agreement is made in the State of [NAME OF STATE] and shall be interpreted under the
laws of said State. Its language shall be construed as a whole, according to its fair meaning, and
not strictly for or against either party. Should any provision of this Agreement be declared
illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be
enforceable, including the General Release (as defined herein), such provision shall immediately
become null and void, leaving the remainder of this Agreement in full force and effect. However,
if as a result of any action initiated by EXECUTIVE, any portion of the General Release (as defined
herein) were ruled to be unenforceable for any reason, EXECUTIVE shall return consideration equal
to the Severance Pay and Severance Benefits provided to EXECUTIVE under this Agreement.
11. EXECUTIVE agrees that neither this Agreement nor the furnishing of the consideration for
this Agreement shall be deemed or construed at any time for any purpose as an admission by the
Company of any liability or unlawful conduct of any kind, all of which the Company denies.
12. This Agreement may not be modified, altered or changed except upon express written consent
of both parties wherein specific reference is made to this Agreement.
13. This Agreement sets forth the entire agreement between the parties hereto, and fully
supersedes any prior agreements or understandings between the parties other than the Employment
Agreement and the Management Equity Award Agreements (including without limitation the
post-employment restrictive covenants contained in the Employment Agreement and the Management
Equity Award Agreements), which agreements shall continue to apply in accordance with their
respective terms, except to the extent otherwise specifically provided herein.
14. EXECUTIVE agrees to cooperate with and, consistent with his other employment obligations,
to make himself reasonably available to Travelport plc and its General Counsel, the Company may
reasonably request, to assist it in any matter regarding Travelport or its affiliates,
subsidiaries, and predecessors, including giving truthful testimony in any potential or filed
litigation, arbitration, mediation or similar proceeding litigation involving Travelport and its
affiliates, subsidiaries, and their predecessors, over which EXECUTIVE has knowledge or
information. The Company will reimburse EXECUTIVE for any and all reasonable expenses reasonably
incurred in connection with EXECUTIVE’s compliance with this paragraph.
15. In consideration for the Severance Pay and Severance Benefits being provided to EXECUTIVE
pursuant to this Agreement, EXECUTIVE warrants and affirms to Travelport that he has at all times
conducted himself as a fiduciary of, and with sole regard to that which is in
[EXECUTIVE] Agreement and General Release
[DATE]
Page 6 of 11
[DATE]
Page 6 of 11
best interests of, Travelport and its affiliates and their predecessors. He affirms that in
conducting business for Travelport and its affiliates and their predecessors, he has done so free
from the influence of any conflicting personal or professional interests, without favor for or
regard of personal considerations, and that he has not in any material respect violated the
Travelport Code of Business Conduct & Ethics (“Travelport Code”). Toward that end, EXECUTIVE
understands that this affirmation is a material provision of this Agreement, and, should the
Company determine that EXECUTIVE has engaged in business practices inconsistent with the
affirmation set forth herein then EXECUTIVE agrees that he shall have committed a material breach
of this Agreement, and the Severance Pay and Severance Benefits provided to EXECUTIVE under this
Agreement shall not have been earned. In that case, EXECUTIVE shall be liable for the return of
consideration equal to such payments and benefits.
THE PARTIES HAVE READ AND FULLY CONSIDERED THIS AGREEMENT AND GENERAL RELEASE AND ARE MUTUALLY
DESIROUS OF ENTERING INTO SUCH AGREEMENT AND GENERAL RELEASE. EXECUTIVE UNDERSTANDS THAT THIS
DOCUMENT SETTLES, BARS AND WAIVES ANY AND ALL CLAIMS HE HAD OR MIGHT HAVE AGAINST THE COMPANY; AND
HE ACKNOWLEDGES THAT HE IS NOT RELYING ON ANY OTHER REPRESENTATIONS, WRITTEN OR ORAL, NOT SET FORTH
IN THIS DOCUMENT. HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE
PROMISES SET FORTH HEREIN, AND TO RECEIVE THEREBY THE SUMS AND BENEFITS SET FORTH IN PARAGRAPH 2
ABOVE, EXECUTIVE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND
GENERAL RELEASE. IF THIS DOCUMENT IS RETURNED EARLIER THAN 21 DAYS FROM THE LAST DATE OF
EMPLOYMENT, THEN EXECUTIVE ADDITIONALLY ACKNOWLEDGES AND WARRANTS THAT HE HAS VOLUNTARILY AND
KNOWINGLY WAIVED THE 21 DAY REVIEW PERIOD, AND THIS DECISION TO ACCEPT A SHORTENED PERIOD OF TIME
IS NOT INDUCED BY THE COMPANY THROUGH FRAUD,MISREPRESENTATION, A THREAT TO WITHDRAW OR ALTER THE
OFFER PRIOR TO THE EXPIRATION OF THE 21 DAYS, OR BY PROVIDING DIFFERENT TERMS TO EMPLOYEES WHO SIGN
RELEASES PRIOR TO THE EXPIRATION OF SUCH TIME PERIOD.
[EXECUTIVE] Agreement and General Release
[DATE]
Page 7 of 11
[DATE]
Page 7 of 11
THEREFORE, the parties to this Agreement and General Release now voluntarily and knowingly
execute this Agreement.
EXECUTIVE | ||||||||
Signed and sworn before me
this day of
, |
||||||||
Notary Public |
||||||||
TRAVELPORT PLC | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Signed and sworn to before me
this day of
, |
||||||||
Notary Public |
||||||||
TRAVELPORT OPERATIONS, INC. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Signed and sworn to before me
this day of
, |
||||||||
Notary Public |
[EXECUTIVE] Agreement and General Release
[DATE]
Page 8 of 11
[DATE]
Page 8 of 11
PERSONAL STATEMENT OF TERMINATION BENEFITS
Date: MONTH DAY, YEAR
Date: MONTH DAY, YEAR
EXECUTIVE NAME:
|
NAME | |
(“you” or “EXECUTIVE”) | ||
LAST DAY OF EMPLOYMENT:
|
MONTH DAY, YEAR |
ACCRUED RIGHTS:
As set forth as Section 7(c)(iii)(A) and Section 7(a)(iii)(A)-(D) of the Employment Agreement, you
will receive the following basic benefits following the termination of your employment:
• | Base Salary through your Last Day of Employment; | ||
• | Any Annual Bonus earned, but unpaid, as of the date of termination for the immediately preceding fiscal year, paid in accordance with Section 4 of the Employment Agreement (except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement with the Company); | ||
• | Reimbursement of unreimbursed business expenses pursuant to Travelport policy; and | ||
• | Employee Benefits pursuant to employee benefit plans of the Company through the Last Day of Employment. |
PRO RATA PORTION OF [YEAR/PORTION OF YEAR] BONUS:
Pursuant to Section 7(c)(iii)(B) of the Employment Agreement, you will receive the following
benefit following the termination of your employment:
A pro rata portion of any Annual Bonus, if any, that you would have been entitled to receive
pursuant to Section 4 of the Employment Agreement in such year based upon the percentage of
the fiscal year that shall have lapsed through the Last Day of Employment (and for which you
have not already received an Annual Bonus), payable when the [YEAR/PORTION OF YEAR] bonus
would have otherwise been payable to you pursuant to Section 4 of the Employment Agreement
had your employment not been terminated.
[EXECUTIVE] Agreement and General Release
[DATE]
Page 9 of 11
[DATE]
Page 9 of 11
SEVERANCE PAY (“Severance Pay”):
Pursuant to and subject to Section 7(c)(iii)(C) of the Employment Agreement, you will receive the
following payments following the termination of your employment:
Payment of three (3) times the sum of both the Base Salary and Annual Bonus at Target
(“Severance Pay”), to be paid as follows: (1) one third (33.3%) of the Severance Pay in a
lump sum as soon as practicable following the effective date of the General Release, but no
later than sixty (60) days after the Last Day of Employment; (2) one third (33.3%) of the
Severance Pay in a lump sum in the pay period occurring closest to the one hundred eightieth
(180th) day (“Second Severance Payment Date”), whether occurring before or after
the Second Severance Payment Date, following the termination of Executive’s employment; and
(3) the final one third (33.3%) of the Severance Pay in a lump sum in the pay period
occurring closest to the three hundred sixty-fifth (365th) day (“Third Severance
Payment Date”), whether occurring before or after the Third Severance Payment Date,
following the termination of Executive’s employment. For the avoidance of doubt, you will
not be an employee of the Company with respect to any of these payments and thus will not be
eligible for the benefits that employees are eligible to receive, including without
limitation participation in the Travelport Employee Savings Plan (“the 401(k) Plan”) and the
Travelport Officer Deferred Compensation Plan (“the Deferred Compensation Plan”).
SEVERANCE BENEFITS (“Severance Benefits”):
Pursuant to and subject to Section 7(c)(iii)(C) of the Employment Agreement, you will receive the
following payments and benefits following the termination of your employment:
HEALTH AND WELFARE BENEFITS:
Continued participation for thirty-six (36) months at active employee rates. This
period shall run concurrently with COBRA. To the extent that these benefits are
taxable to you under Section 105(h) of the Internal Revenue Code, the Company will
provide a gross-up to you to cover any taxes due from you on such benefits.
INSURANCE BENEFITS:
A lump sum payment that, after applicable taxes and deductions, is equivalent to the
value of thirty-six (36) months of Company’s portion of the life insurance program
provided by the Company to you as of the date of this Agreement. The amount of this
payment will be determined as of your Last Day of Employment and will be paid in a
lump sum no later than sixty (60) days after the Last Day of Employment.
[EXECUTIVE] Agreement and General Release
[DATE]
Page 10 of 11
[DATE]
Page 10 of 11
FINANCIAL PLANNING BENEFITS:
Continued participation for thirty-six (36) months following your Last Day of
Employment. The Company shall gross-up any payments on such benefits that are
taxable to you.
EXECUTIVE CAR PROGRAM:
A lump sum payment that, after applicable taxes and deductions, is equivalent to the
value of thirty-six (36) months of future participation in the Executive Car
Program. The amount of this payment will be determined as of your Last Day of
Employment and will be paid in a lump sum no later than sixty (60) days after the
Last Day of Employment. After your participation in the Executive Car Program
ceases effective as of your Last Day of Employment, you will have the option to
purchase the car assigned to you for fair market value; provided that you pay all
incremental costs incurred by the Company as a result of such assignment. In the
event that you do not purchase the car assigned to you under the Executive Car
Program on or before the Last Day of Employment, you shall return such car as
directed by the Company or its agents.
LAPTOP COMPUTER:
At your option, the sale to you, on or about the time of your Last Day of
Employment, of the ownership interest in the [MAKE AND MODEL NUMBER] laptop computer
that the Company has assigned to you, Serial Number [XXXXXXX], as of the date of
this Agreement, (“the Laptop”), for fair market value pursuant to the Company’s
policy. You shall provide the Company with reasonable advance written notice prior
to your Last Day of Employment as to whether you wish to purchase the Laptop. The
ownership interest in the Laptop shall be transferred only after the Company has
removed all confidential and proprietary information from the computer and taken any
other measures it deems necessary to protect its interests. The Company shall
deduct the amount due for the cost of the Laptop from the Severance Pay.
Unless otherwise defined herein, all capitalized terms set forth above shall have the meaning set
forth in the Employment Agreement. In the event of Executive’s death or disability after the Last
Day of Employment, Executive’s estate and beneficiaries, as applicable, shall receive the pay and
benefits (or remaining portion thereof) the set forth in this Personal Statement of Termination
Benefits, subject to Executive’s (or his estate’s) execution, delivery, and non-revocation of the
General Release within the applicable time period.
[EXECUTIVE] Agreement and General Release
[DATE]
Page 11 of 11
[DATE]
Page 11 of 11
POST-EMPLOYMENT RESTRICTIVE COVENANTS (as set forth in Employment Agreement and Management Equity
Award Agreements):
Non-competition:
|
Two (2) years from Last Day of Employment | |
Non-solicitation of clients and employees:
|
Two (2) years from Last Day of Employment | |
Confidential Information:
|
No time limit | |
Intellectual Property:
|
No time limit |
For the avoidance of doubt, the term “affiliates” in the post-employment restrictive covenants in
the Employment Agreement and your Management Equity Award Agreements only include entities owned by
The Blackstone Group to the extent such entities are engaged in the same businesses of Travelport
plc and its subsidiaries as of the Last Day of Employment.
EQUITY:
You will remain the owner of any equity awards granted to you pursuant to the equity plans
Travelport plc or any of its subsidiaries and affiliates (including without limitation the TDS
Investor (Cayman) L.P. 2006 Interest Plan and any successor plan(s) established by Travelport plc),
subject to the terms of the applicable equity plans, award agreements and any other definitive
documentation entered into by you and the applicable Travelport entity regarding such equity
awards, including, without limitation, the provisions set forth in Section 7(c)(iii)(D) through (E)
of the Employment Agreement.
TAX ISSUES:
As set forth in Section 12(g) of the Employment Agreement, this Personal Statement of Termination
Benefits is intended to comply with the requirements of Section 409A of the Internal Revenue Code
(“Section 409A”) and regulations promulgated thereunder. To the extent that any provision
in this Agreement is ambiguous as to its compliance with Section 409A, the provision shall be read
in such a manner so that all payments under this Agreement shall not be subject to an excise tax
under Section 409A. Notwithstanding anything contained in this Agreement to the contrary, if
necessary to comply with the restriction in Section 409A(a)(2)(B) of the Code concerning payments
to “specified employees”, any payment on account of your separation from service that would
otherwise be due hereunder within six months after such separation shall nonetheless be delayed
until no later than the first full pay period following the first business day of the seventh month
following your separation from service. In addition, notwithstanding anything contained herein to
the contrary, you shall not be considered to have terminated employment with the Company for
purposes of causing any amount due under this Agreement to be made unless you would be considered
to have incurred a “termination of employment” from the Company and its affiliates within the
meaning of Treasury Regulation §1.409A-1(h)(1)(ii). All amounts provided above will be subject to
applicable taxes, deductions
and withholding, and shall be subject to the tax equalization provision set forth in Section 12(o)
of the Employment Agreement.
To the Board of Directors of
Travelport plc
Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Travelport plc
Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
In connection with my employment within the Travelport group of companies which, for the avoidance
of doubt means Travelport plc and/or its affiliates and subsidiaries (“Travelport Group”) and my
appointment as director, officer, and/or any other position of responsibility requiring
notification to a public registrar, or regulatory or governing body (“Executive Appointments”).
I hereby resign from all and any Executive Appointments (as described above) pertaining to my
employment with the Travelport Group with effect on my Last Day of Employment with the Travelport
Group, i.e. MONTH DAY, YEAR.
Sincerely,
NAME
Date: