EMPLOYMENT AGREEMENT
Exhibit 10.29
THIS EMPLOYMENT AGREEMENT (“Agreement”) is entered into by and between Xxxxxx Xxxxx
(“Employee”) and Expedia, Inc., a Washington corporation (the “Company”), and is effective as of
August 7, 2007 (the “Effective Date”).
WHEREAS, the Company desires to establish its right to the services of Employee, in the
capacity described below, on the terms and conditions hereinafter set forth, and Employee is
willing to accept such employment on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, Employee and
the Company have agreed and do hereby agree as follows:
1A. EMPLOYMENT. The Company agrees to employ Employee as Chief Technology Officer (“CTO”)
of the Company, and Employee accepts and agrees to such employment. During Employee’s employment
with the Company, Employee shall do and perform all services and acts necessary or advisable to
fulfill the duties and responsibilities as are commensurate and consistent with Employee’s position
and shall render such services on the terms set forth herein. During Employee’s employment with
the Company, Employee shall report directly to the Company’s Chief Executive Officer or such
person(s) as from time to time may be designated by the Company (hereinafter referred to as the
“Reporting Officer”). Employee shall have such powers and duties with respect to the Company as
may reasonably be assigned to Employee by the Reporting Officer, to the extent consistent with
Employee’s position and status. Employee agrees to devote all of Employee’s working time,
attention and efforts to the Company and to perform the duties of Employee’s position in accordance
with the Company’s policies as in effect from time to time. Employee’s principal place of
employment shall be the Company’s offices located in Bellevue, Washington.
2A. TERM OF AGREEMENT. The term (“Term”) of this Agreement shall commence on the Effective
Date and shall continue for a period of two (2) years.
3A. COMPENSATION.
(a) BASE SALARY. During the Term, the Company shall pay Employee an annual base
salary of $350,000 (the “Base Salary”), payable in equal biweekly installments or in accordance
with the Company’s payroll practice as in effect from time to time. For all purposes under this
Agreement, the term “Base Salary” shall refer to Base Salary as in effect from time to time. The
Base Salary shall be subject to review and increase at the discretion of the Company’s Chief
Executive Officer.
(b) DISCRETIONARY BONUS. During the Term, Employee shall be eligible to receive
discretionary annual bonuses. For purposes of the foregoing, Employee’s annual target bonus shall
be 60% of Employee’s Base Salary earned for that year. The bonus, if any, will be payable annually
at the same time that bonuses generally are paid by the company, currently scheduled to be no later
than March 30 for the preceding calendar year. For the avoidance of doubt, the amount of any such
bonus will be determined by the Company in its absolute
discretion and may be zero. In addition, in order to receive any bonus payment, Employee must
still be in service and not under notice of termination on the date determined by the Company for
payment of the bonus. The Company does not, and Employee is not entitled to, a pro rata payment of
bonus should Employee’s employment terminate for any reason prior to the determined bonus payment
date.
(c) RESTRICTED STOCK UNITS. The Company shall recommend to the Compensation
Committee that Executive be issued Restricted Stock Units (“RSU’s) valued in the amount of Five
Hundred Thousand Dollars ($500,000.00), to vest in equal increments over five (5) years, contingent
on satisfaction of the Section 162(M) performance goals set periodically by the Compensation
Committee, and subject to the terms and conditions of the Restricted Stock Unit Agreement and other
applicable Restricted Stock Unit Plans. The specific number of RSU’s will be based on the
valuation practices established by the Compensation Committee.
(d) BENEFITS. From the Effective Date through the date of termination of Employee’s
employment with the Company for any reason, Employee shall be entitled to participate in any
welfare, health and life insurance and pension benefit and incentive programs as may be adopted
from time to time by the Company on the same basis as that provided to similarly situated employees
of the Company. Without limiting the generality of the foregoing, Employee shall be entitled to
the following benefits:
(i) Reimbursement for Business Expenses. During the Term, the Company shall
reimburse Employee for all reasonable and necessary expenses incurred by Employee in
performing Employee’s duties for the Company, on the same basis as similarly situated
employees and in accordance with the Company’s policies as in effect from time to time.
(ii) Vacation. During the Term, Employee shall be entitled to annual paid
vacation, in accordance with the plans, policies, programs and practices of the Company
applicable to similarly situated employees of the Company generally.
4A. NOTICES. All notices and other communications under this Agreement shall be in writing
and shall be given by first-class mail, certified or registered with return receipt requested or
hand delivery acknowledged in writing by the recipient personally, and shall be deemed to have been
duly given three days after mailing or immediately upon duly acknowledged hand delivery to the
respective persons named below:
| If to the Company: | 0000 000xx Xxxxxx XX | |||
| Xxxxxxxx, XX 00000 | ||||
| Attention: General Counsel | ||||
| If to Employee: | At the most recent address on record for Employee at the Company. |
Either party may change such party’s address for notices by notice duly given pursuant hereto.
5A. GOVERNING LAW; JURISDICTION. This Agreement and the legal relations thus created
between the parties hereto shall be governed by and construed under and in accordance with the
internal laws of the State of Washington without reference to the principles of conflicts of laws.
Any and all disputes between the parties which may arise pursuant to this Agreement will be heard
and determined before an appropriate federal court in Washington, or, if not maintainable therein,
then in an appropriate Washington state court. The parties acknowledge that such courts have
jurisdiction to interpret and enforce the provisions of this Agreement, and the parties consent to,
and waive any and all objections that they may have as to, personal jurisdiction and/or venue in
such courts.
6A. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together will constitute one and the same
instrument. Employee expressly understands and acknowledges that the Standard Terms and Conditions
attached hereto are incorporated herein by reference, deemed a part of this Agreement and are
binding and enforceable provisions of this Agreement. References to “this Agreement” or the use of
the term “hereof” shall refer to this Agreement and the Standard Terms and Conditions attached
hereto, taken as a whole.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and delivered by its
duly authorized officer and Employee has executed and delivered this Agreement as of the Effective
Date.
| EXPEDIA, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Its: | Executive Vice President and General Counsel | |||||
| EMPLOYEE | ||||||
| /s/ Xxxxxx Xxxxx | ||||||
| Xxxxxx Xxxxx | ||||||
STANDARD TERMS AND CONDITIONS
1. TERMINATION OF EMPLOYEE’S EMPLOYMENT.
(a) DEATH. In the event Employee’s employment hereunder is terminated by reason of
Employee’s death, the Company shall pay Employee’s designated beneficiary or beneficiaries, within
30 days of Employee’s death in a lump sum in cash, (i) Employee’s Base Salary through the end of
the month in which death occurs and (ii) any Accrued Obligations (as defined in paragraph 1(f)
below).
(b) DISABILITY. If, as a result of Employee’s incapacity due to physical or mental
illness (“Disability”), Employee shall have been absent from the full-time performance of
Employee’s duties with the Company for a period of four consecutive months and, within 30 days
after written notice is provided to Employee by the Company (in accordance with Section 4A hereof),
Employee shall not have returned to the full-time performance of Employee’s duties, Employee’s
employment under this Agreement may be terminated by the Company for Disability. During any period
prior to such termination during which Employee is absent from the full-time performance of
Employee’s duties with the Company due to Disability, the Company shall continue to pay Employee’s
Base Salary at the rate in effect at the commencement of such period of Disability, offset by any
amounts payable to Employee under any disability insurance plan or policy provided by the Company.
Upon termination of Employee’s employment due to Disability, the Company shall pay Employee within
30 days of such termination (i) Employee’s Base Salary through the end of the month in which
termination occurs in a lump sum in cash, offset by any amounts payable to Employee under any
disability insurance plan or policy provided by the Company; and (ii) any Accrued Obligations (as
defined in paragraph 1(f) below).
(c) TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON. The Company may terminate
Employee’s employment under this Agreement with or without Cause at any time prior to the
expiration of the Term. As used herein, “Cause” shall mean: (i) the plea of guilty or nolo
contendere to, or conviction for, the commission of a felony offense by Employee; provided,
however, that after indictment, the Company may suspend Employee from the rendition of
services, but without limiting or modifying in any other way the Company’s obligations under this
Agreement; (ii) a material breach by Employee of a fiduciary duty owed to the Company; (iii) a
material breach by Employee of any of the covenants made by Employee in Section 2 hereof; (iv) the
willful or gross neglect by Employee of the material duties required by this Agreement; or (v) a
violation by Employee of any Company policy pertaining to ethics, legal compliance, wrongdoing or
conflicts of interest. Upon (A) the termination of Employee’s employment by the Company for Cause
prior to the expiration of the Term or (B) Employee’s resignation without Good Reason prior to the
expiration of the Term, the Company shall have no further obligation hereunder, except for the
payment of any Accrued Obligations (as defined in paragraph 1(f) below).
(d) TERMINATION BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR CAUSE; RESIGNATION FOR
GOOD REASON. Upon termination of
Employee’s employment prior to the expiration of the Term (I) by the Company without Cause
(other than for death or Disability) or (II) by Employee for Good Reason (as defined below), then
(i) the Company shall continue to pay Employee the Base Salary through the longer of (1) one year
and (2) the end of the Term, over the course of such period (such period, the “Severance Period”),
payable in equal biweekly installments in accordance with the Company’s payroll practice as in
effect from time to time, subject in all events to Section 9 below, provided that the
expiration of this Agreement shall not give rise to any such payment obligation; and (ii) the
Company shall pay Employee within 30 days of the date of such termination in a lump sum in cash any
Accrued Obligations (as defined in paragraph 1(f) below). The payment to Employee of the severance
benefits described in Section 1(d)(i) shall be subject to Employee’s execution and non-revocation
of a separation agreement in a form acceptable to the Company including a general release of the
Company and its affiliates, a covenant not to compete for twelve (12) months and a further covenant
not to compete for twelve (12) additional months with respect to the entities specified in Schedule
A hereto, and non-solicitation covenants (“Separation Agreement”) and Employee’s compliance with
the restrictive covenants set forth in Section 2 hereof. Employee acknowledges and agrees that the
Company’s payment of severance benefits described in Section 1(d)(i) constitutes good and valuable
consideration for such release. As used herein, “Good Reason” shall mean the occurrence of any of
the following without Employee’s prior consent: (A) the Company’s material breach of any material
provision of this Agreement, (B) the material reduction in Employee’s duties, excluding for this
purpose any such reduction that is an isolated and inadvertent action not taken in bad faith or
that is authorized pursuant to this Agreement, (C) the material reduction in Employee’s Base
Salary, provided that in no event shall Employee’s resignation be for “Good Reason” unless
(x) an event or circumstance set forth in clauses (A) through (C) shall have occurred and Employee
provides the Company with written notice thereof within thirty (30) days after the Employee has
knowledge of the occurrence or existence of such event or circumstance, which notice specifically
identifies the event or circumstance that Employee believes constitutes Good Reason, (y) the
Company fails to correct the circumstance or event so identified within 30 days after receipt of
such notice, and (z) the Employee resigns within 90 days after the date of delivery of the notice
referred to in clause (x) above.
(e) MITIGATION; OFFSET. In the event of termination of Employee’s employment prior to
the end of the Term, Employee shall use his or her reasonable best efforts to seek other employment
and to take other reasonable actions to mitigate the amounts payable under Section 1(d)(i) hereof,
if any. If Employee obtains other employment during the Severance Period, the amount of any
severance payments provided to Employee under Section 1(d)(i) hereof which has been paid to
Employee shall be refunded to the Company by Employee in an amount equal to any compensation earned
by Employee as a result of employment with or services provided to another employer during the
Severance Period (for clarity, no amounts greater than such payments or benefits provided to
Employee under Section 1(d)(i) hereof need be refunded), as set forth in the Separation Agreement.
In addition, all future amounts payable by the Company under Section 1(d)(i) to Employee during the
Severance Period shall be offset by the amount earned by Employee from another employer. For
purposes of this Section 1(e), Employee shall have an obligation to inform the Company regarding
Employee’s employment status following
termination and during the period encompassing the Term (including, without limitation, the
Severance Period).
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(f) ACCRUED OBLIGATIONS. As used in this Agreement, “Accrued Obligations” shall mean
the sum of (i) any portion of Employee’s accrued but unpaid Base Salary through the date of death
or termination of employment for any reason, as the case may be; (ii) any compensation previously
earned but deferred by Employee (together with any interest or earnings thereon) that has not yet
been paid; and (iii) other than in the event of Employee’s resignation without Good Reason or
termination by the Company for Cause (except as required by applicable law), any portion of
Employee’s accrued but unpaid vacation pay through the date of death or termination of employment.
2. CONFIDENTIAL INFORMATION; NON-SOLICITATION; AND PROPRIETARY RIGHTS.
(a) CONFIDENTIALITY. Employee acknowledges that while employed by the Company
Employee will occupy a position of trust and confidence. The Company shall provide Employee with
Confidential Information. Employee shall hold in a fiduciary capacity for benefit of the Company
and its subsidiaries and affiliates, and shall not, except as may be required to perform Employee’s
duties hereunder or as required by applicable law, without limitation in time, communicate,
divulge, disseminate, disclose to others or otherwise use, whether directly or indirectly, any
Confidential Information. “Confidential Information” shall mean information about the Company or
any of its subsidiaries or affiliates, and their respective businesses, employees, consultants,
contractors, suppliers, clients and customers that is not disclosed by the Company or any of its
subsidiaries or affiliates for financial reporting purposes and that was learned by Employee in the
course of employment by the Company or any of its subsidiaries or affiliates, including (without
limitation) any proprietary knowledge, trade secrets, data, formulae, processes, methods, research,
secret data, costs, names of users or purchasers of their respective products or services, business
methods, operating procedures or programs or methods of promotion and sale, information relating to
accounting or tax strategies and data, information and client and customer lists and all papers,
resumes, and records (including computer records) of the documents containing such Confidential
Information. For purposes of this Section 2(a), information shall not cease to be Confidential
Information merely because it is embraced by general disclosures for financial reporting purposes
or because individual features or combinations thereof are publicly available. Notwithstanding the
foregoing provisions, if Employee is required to disclose any such confidential or proprietary
information pursuant to applicable law or a subpoena or court order, Employee shall promptly notify
the Company in writing of any such requirement so that the Company may seek an appropriate
protective order or other appropriate remedy or waive compliance with the provisions hereof.
Employee shall reasonably cooperate with the Company to obtain such a protective order or other
remedy. If such order or other remedy is not obtained prior to the time Employee is required to
make the disclosure, or the Company waives compliance with the provisions hereof, Employee shall
disclose only that portion of the confidential or proprietary information which he is advised by
counsel that he is legally required to so disclose. Employee acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the Company and its subsidiaries
or affiliates, and that such information gives the Company and its subsidiaries or
affiliates a competitive advantage. Employee agrees to deliver or return to the Company, at
the Company’s request at any time or upon termination or expiration of Employee’s employment, all
documents, computer tapes and disks, plans,
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initiatives, strategies, records, lists, data,
drawings, prints, notes and written information (and all copies thereof) created by or on behalf of
the Company or its subsidiaries or affiliates or prepared by Employee in the course of Employee’s
employment by the Company and its subsidiaries or affiliates. As used in this Agreement,
“subsidiaries” and “affiliates” shall mean any company controlled by, controlling or under common
control with the Company.
(b) DUTY OF LOYALTY. In consideration of the Company’s promise to disclose, and
disclosure of, its Confidential Information and other good and valuable consideration provided
hereunder, the receipt and sufficiency of which are hereby acknowledged by Employee, Employee
hereby agrees and covenants that for a period of twelve (12) months beyond Employee’s date of
termination of employment from the Company or any of its subsidiaries or affiliates for any reason,
including the expiration of the Term (the “Restricted Period”), Employee shall not, directly or
indirectly, engage in, assist or become associated with a Competitive Activity. For purposes of
this Section 2(b): (i) a “Competitive Activity” means, at the time of Employee’s termination, any
business or other endeavor in any jurisdiction of a kind being conducted by the Company or any of
its subsidiaries or affiliates (or demonstrably anticipated by the Company or its subsidiaries or
affiliates), including, without limitation, those that are engaged in the provision of any lodging
or travel related services (including, without limitation, corporate travel services) in any
jurisdiction as of the Effective Date or at any time thereafter (such affiliates including, without
limitation, Xxxxxx.xxx, Hotwire, Inc. and TripAdvisor); and (ii) Employee shall be considered to
have become “associated with a Competitive Activity” if Employee becomes directly or indirectly
involved as an owner, principal, employee, officer, director, independent contractor,
representative, stockholder, financial backer, agent, partner, advisor, lender, or in any other
individual or representative capacity with any individual, partnership, corporation or other
organization that is engaged in a Competitive Activity. Notwithstanding the foregoing, Employee
may make and retain investments during the Restricted Period, for investment purposes only, in less
than five percent (5%) of the outstanding capital stock of any publicly-traded corporation engaged
in a Competitive Activity if stock of such corporation is either listed on a national stock
exchange or on the NASDAQ National Market System if Employee is not otherwise affiliated with such
corporation. Employee further agrees and covenants that for an additional period of twelve (12)
months beyond the Initial Restricted Period (“Second Restricted Period”) Employee shall not
directly or indirectly be associated with (as defined above) any entity listed on Schedule A
hereto.
(c) NON-SOLICITATION OF EMPLOYEES. Employee recognizes that he or she will possess
Confidential Information about other employees, officers, directors, agents, consultants and
independent contractors of the Company and its subsidiaries or affiliates relating to their
education, experience, skills, abilities, compensation and benefits, and inter-personal
relationships with suppliers to and customers of the Company and its subsidiaries or affiliates.
Employee recognizes that the information he or she will possess about these employees, officers,
directors, agents, consultants and independent contractors is not generally known, is of
substantial value to the Company and its subsidiaries or affiliates in developing their respective
businesses and in securing and retaining customers, and will be acquired by Employee because
of Employee’s business position with the Company. Employee agrees (i) that, during the Term and
the Restricted Period, Employee will not, directly or indirectly, hire or solicit or recruit the
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employment or services of (i.e., whether as an employee, officer, director, agent, consultant or
independent contractor), or encourage to change such person’s relationship with the Company or any
of its subsidiaries or affiliates, any employee, officer, director, agent, consultant or
independent contractor of the Company or any of its subsidiaries or affiliates, provided, however,
that a general solicitation of the public for employment shall not constitute a solicitation
hereunder so long as such general solicitation is not designed to target, or does not have the
effect of targeting, any employee, officer, director, agent, consultant or independent contractor
of the Company or any of its subsidiaries or affiliates and (ii) that Employee will not convey any
Confidential Information or trade secrets about any employees, officers, directors, agents,
consultants and independent contractors of the Company or any of its subsidiaries or affiliates to
any other person except within the scope of Employee’s duties hereunder.
(d) NON-SOLICITATION OF CUSTOMERS, SUPPLIERS, PARTNERS. During the Term and the
Restricted Period, Employee shall not, without the prior written consent of the Company, directly
or indirectly, solicit, attempt to do business with, or do business with any customers of,
suppliers (including providers of travel inventory) to, business partners of or business affiliates
of the Company or any of its subsidiaries or affiliates (collectively, “Trade Relationships”) on
behalf of any entity engaged in a Competitive Activity, or encourage (regardless of who initiates
the contact) any Trade Relationship to use the services of any competitor of the Company or its
subsidiaries or affiliates, or encourage any Trade Relationship to change its relationship with the
Company or its subsidiaries or affiliates.
(e) PROPRIETARY RIGHTS; ASSIGNMENT. All Employee Developments shall be made for hire
by the Employee for the Company or any of its subsidiaries or affiliates. “Employee Developments”
means any idea, discovery, invention, design, method, technique, improvement, enhancement,
development, computer program, machine, algorithm or other work or authorship that (i) relates to
the business or operations of the Company or any of its subsidiaries or affiliates, or (ii) results
from or is suggested by any undertaking assigned to the Employee or work performed by the Employee
for or on behalf of the Company or any of its subsidiaries or affiliates, whether created alone or
with others, during or after working hours. All Confidential Information and all Employee
Developments shall remain the sole property of the Company or any of its subsidiaries or
affiliates. The Employee shall acquire no proprietary interest in any Confidential Information or
Employee Developments developed or acquired during the Term. To the extent the Employee may, by
operation of law or otherwise, acquire any right, title or interest in or to any Confidential
Information or Employee Development, the Employee hereby assigns to the Company all such
proprietary rights. The Employee shall, both during and after the Term, upon the Company’s
request, promptly execute and deliver to the Company all such assignments, certificates and
instruments, and shall promptly perform such other acts, as the Company may from time to time in
its discretion deem necessary or desirable to evidence, establish, maintain, perfect, enforce or
defend the Company’s rights in Confidential Information and Employee Developments.
(f) COMPLIANCE WITH POLICIES AND PROCEDURES. During the Term, Employee shall adhere
to the policies and standards of professionalism set forth in the Company’s Policies and Procedures
as they may exist from time to time.
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(g) REMEDIES FOR BREACH. Employee expressly agrees and understands that Employee will
notify the Company in writing of any alleged breach of this Agreement by the Company, and the
Company will have 30 days from receipt of Employee’s notice to cure any such breach.
Employee expressly agrees and understands that the remedy at law for any breach by Employee of
this Section 2 will be inadequate and that damages flowing from such breach are not usually
susceptible to being measured in monetary terms. Accordingly, it is acknowledged that upon
Employee’s violation of any provision of this Section 2 the Company shall be entitled to obtain
from any court of competent jurisdiction immediate injunctive relief and obtain a temporary order
restraining any threatened or further breach as well as an equitable accounting of all profits or
benefits arising out of such violation. Nothing in this Section 2 shall be deemed to limit the
Company’s remedies at law or in equity for any breach by Employee of any of the provisions of this
Section 2, which may be pursued by or available to the Company.
(h) SURVIVAL OF PROVISIONS. The obligations contained in this Section 2 shall, to the
extent provided in this Section 2, survive the termination or expiration of Employee’s employment
with the Company and, as applicable, shall be fully enforceable thereafter in accordance with the
terms of this Agreement. If it is determined by a court of competent jurisdiction in any state
that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or
unenforceable under the laws of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state.
3. TERMINATION OF PRIOR AGREEMENTS. This Agreement constitutes the entire agreement
between the parties and terminates and supersedes any and all prior agreements and understandings
(whether written or oral) between the parties with respect to the subject matter of this Agreement.
Employee acknowledges and agrees that neither the Company nor anyone acting on its behalf has
made, and is not making, and in executing this Agreement, the Employee has not relied upon, any
representations, promises or inducements except to the extent the same is expressly set forth in
this Agreement. Employee hereby represents and warrants that by entering into this Agreement,
Employee will not rescind or otherwise breach an employment agreement with Employee’s current
employer prior to the natural expiration date of such agreement
4. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its nature and none of the
parties hereto shall, without the consent of the others, assign or transfer this Agreement or any
rights or obligations hereunder, provided that, in the event of the merger, consolidation,
transfer, or sale of all or substantially all of the assets of the Company with or to any other
individual or entity, this Agreement shall, subject to the provisions hereof, be binding upon and
inure to the benefit of such successor and such successor shall discharge and perform all the
promises, covenants, duties, and obligations of the Company hereunder, and all references herein to
the “Company” shall refer to such successor.
5. WITHHOLDING. The Company shall make such deductions and withhold such amounts from each
payment and benefit made or provided to Employee hereunder, as may be required from time to time by
applicable law, governmental regulation or order.
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6. HEADING REFERENCES. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
7. WAIVER; MODIFICATION. Failure to insist upon strict compliance with any of the terms
hereof shall not be deemed a waiver of such term, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at any one or more
times be deemed a waiver or relinquishment of such right or power at any other time or times. This
Agreement shall not be modified in any respect except by a writing executed by each party hereto.
Notwithstanding anything to the contrary herein, neither the assignment of Employee to a different
Reporting Officer due to a reorganization or an internal restructuring of the Company or its
affiliated companies nor a change in the title of the Reporting Officer shall constitute a
modification or a breach of this Agreement.
8. SEVERABILITY If a court of competent jurisdiction determines that any portion of this
Agreement is in violation of any law or public policy, only the portions of this Agreement that
violate such law or public policy shall be stricken. All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect. Further, any court
order striking any portion of this Agreement shall modify the stricken terms as narrowly as
possible to give as much effect as possible to the intentions of the parties under this Agreement.
9. SECTION 409A. This Agreement is intended to comply with Section 409A of the Internal
Revenue Code of 1986, as amended, including any regulations and guidance issued thereunder
(“Section 409A”), to the extent Section 409A is applicable to this Agreement. Notwithstanding any
other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated
and administered by the Company in a manner consistent with such intention and to avoid the
pre-distribution inclusion in income of amounts deferred under this Agreement and the imposition of
any additional tax or interest with respect thereto. Without limiting the generality of the
foregoing, to the extent required in order to comply with Section 409A, amounts that would
otherwise be payable under this Agreement during the six-month period immediately following the
date of termination of Employee’s employment shall instead be paid on the first business day after
the date that is six months following the Employee’s “separation from service” within the meaning
of Section 409A.
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ACKNOWLEDGED AND AGREED AS OF THE EFFECTIVE DATE:
| EXPEDIA, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxx
|
|||||
| Its: | Executive Vice President and General Counsel | |||||
| EMPLOYEE | ||||||
| /s/ Xxxxxx Xxxxx | ||||||
| Xxxxxx | Xxxxx | |||||
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