FORM OF MANAGEMENT EQUITY AWARD AGREEMENT (Restricted Equity Units)
Exhibit 10.3
THIS
MANAGEMENT EQUITY AWARD AGREEMENT (“Agreement”) is
made as of
2011 by and between TDS Investor (Cayman) L.P., a Cayman Islands limited partnership (the
“Partnership”) and (“Executive”).
RECITALS
The Partnership has adopted the TDS Investor (Cayman) L.P. Fifth Amended and Restated 2006
Interest Plan (the “Plan”), a copy of which is attached hereto as Exhibit A.
In connection with Executive’s employment by the Partnership or one of its Subsidiaries
(collectively, the “Company”), the Partnership intends concurrently herewith to grant the number of
Restricted Equity Units (as defined below) set forth on the signature page hereto.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises set forth
in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, agree
as follows:
SECTION 1
DEFINITIONS
1.1. Definitions. Except as expressly provided for herein, capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Partnership Agreement. In
addition to the terms defined in the Partnership Agreement, the terms below shall have the
following respective meanings:
“Agreement” has the meaning specified in the Introduction.
“Board” means the board of directors of the General Partner (or, if applicable, any committee
of the Board).
“Cause” shall have the meaning assigned such term in any employment agreement entered into
between any Company and Executive, provided that if no such employment agreement exists or such
term is not defined, then “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 any 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, (C) an act or acts on Executive’s part constituting (x) a felony under the laws of the
United States or any state thereof or (y) a crime involving moral turpitude, (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 any agreed-upon
non-compete, non-solicitation or confidentiality provisions agreed to with the Company, including
pursuant to this Agreement and pursuant to any employment agreement.
“Company” has the meaning specified in the Recitals.
“Constructive Termination” shall have the meaning assigned such term in any employment
agreement entered into between any Company and Executive, provided that if no such employment
agreement exists or such term is not defined, then “Constructive Termination” means (A) any
material reduction in Executive’s base salary or annual bonus opportunity (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 or
(D) the primary business office for Executive being relocated by more than 50 miles;
provided that any of the events described in clauses (A)-(D) of this definition of
“Constructive Termination” 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 Constructive Termination; provided further, that a “Constructive Termination” shall
cease to exist for an event on the 60th day following the later of its occurrence
thereof or Executive’s knowledge thereof, unless Executive has given the Company written notice
thereof prior to such date.
“Disability” shall have the meaning assigned such term in any employment agreement entered
into between any Company and Executive, provided that if no such employment agreement exists or
such term is not defined, then “Disability” shall mean Executive shall have become
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 under Executive’s employment. Any question as to the existence of the
Disability of Executive as to which Executive and the Partnership cannot agree shall be determined
in writing by a qualified independent physician mutually acceptable to Executive and the
Partnership. If Executive and the Partnership 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
Partnership and Executive shall be final and conclusive for all purposes of this Agreement and any
other agreement between any Company and Executive that incorporates the definition of “Disability”.
“Effective Date” means the date hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Executive” has the meaning specified in the Introduction.
“Other Documents” means the Partnership Agreement, any other management equity award agreement
between Executive and the Partnership and any employment agreement by and between Executive and any
Partnership, in each case as amended, modified, supplemented or restated from time to time in
accordance with the terms thereof.
“Partnership” has the meaning specified in the Introduction.
“Partnership Agreement” shall mean the Agreement of Limited Partnership, as amended, modified
or supplemented from time to time, of the Partnership.
“Retirement” shall mean the retirement of the Executive from employment with the Company at or
beyond the age at which Executive is entitled to retire under the terms of Executive’s contract of
employment or earlier with the consent of the Company provided that the Company shall not withhold
its consent on the basis of Executive’s age.
“Travelport EBITDA” means the earnings before interest, taxes, depreciation and amortization
of Travelport, as determined by Travelport’s Board of Directors.
“Unvested Restricted Equity Units” means Restricted Equity Units held by Executive that are
subject to any vesting, forfeiture or similar arrangement under this Agreement.
“Vested Restricted Equity Units” means Restricted Equity Units held by Executive that are no
longer subject to any vesting, forfeiture or similar arrangement under this Agreement.
SECTION 2
GRANT OF RESTRICTED EQUITY UNITS
2.1. Restricted Equity Units. Subject to the terms and conditions hereof, the
Partnership hereby grants Executive Restricted Equity Units as is set forth on the
signature page to this Agreement and Executive accepts such Restricted Equity Units from the
Partnership. Each “Restricted Equity Unit” represents the right to receive from the Partnership,
on the terms and conditions (and at the times) set forth in this Agreement (including Section 3.3),
one Class A-2 Interest with a hypothetical capital contribution equal to, on the date hereof, $1
per Class A-2 Interest (but subject to adjustment pursuant to Section 4.3). The terms of Class A-2
Interests are set forth in, and governed by, the Partnership Agreement and Executive shall have no
rights in respect of such Class A-2 Interests until the Company delivers such Class A-2 Interests
pursuant to the terms hereof and Executive becomes a Class A-2 Limited Partner pursuant to the
Partnership Agreement.
SECTION 3
VESTING, TRANSFER PROHIBITED, DELIVERY AND TERMINATION
3.1. Vesting Schedule.
(a) The Restricted Equity Units granted to Executive under this Agreement shall be eligible
for vesting over a four calendar year period beginning on January 1, 2011, with 25% of the total
number of Restricted Equity Units (i.e., Restricted Equity Units) eligible for
vesting on August 1, 2012, August 1, 2013, August 1, 2014 and August 1, 2015 based on performance
for each of the calendar years from 2011 through 2014, inclusive. The Restricted Equity Units
eligible for vesting for a particular calendar year shall each be referred to as a “Tranche.”
(b) Vesting for each Tranche will be based upon the Travelport EBITDA, cash flow and/or other
financial targets established and defined by the Board, in good faith, during that calendar year
(for each year, individually, an “Annual Goal,” and collectively, the “Annual Goals”), which shall
be established no later than April 30 of each calendar year (August 31 for 2011). For each Tranche
the Board will establish Threshold, Target and Stretch levels for each Annual Goal and the
percentage weighting for each Annual Goal (e.g., 50%) (the “Weight”).
(c) Subject to Executive’s continuous active employment (which shall not include employment
after the Executive has given notice of termination of employment, other than as a result of a
Constructive Termination) with the Company through the August 1 immediately following the
applicable calendar year (each, a “Vesting Date”), a percentage of the Restricted Equity Units for
that Tranche shall vest prorata based upon the achievement of Travelport Limited (“Travelport”) as
compared to each Annual Goal and the Weight assigned to each Annual Goal established by the Board
as follows for each applicable calendar year:
(i) if the Annual Goal result is at Stretch level, 100% of the Restricted Equity Units
shall vest; or
(ii) if the Annual Goal result is at Target level, 67% of the Restricted Equity Units
shall vest; or
(iii) if the Annual Goal result is at Threshold level, 33% of the Restricted Equity
Units shall vest; or
(iv) if the Annual Goal result is between Threshold and Target levels, the percentage
of Restricted Equity Units that shall vest will be based on the interpolation between the
percentage that would have vested at Threshold (33%) and the percentage that would have
vested at Target (67%), with the vesting percentage rounded to the nearest whole percentage
point; or
(v) if the Annual Goal result is between Target and Stretch levels, the percentage of
Restricted Equity Units that shall vest will be based on the interpolation between the
percentage that would have vested at Target (67%) and the percentage that would have vested
at Stretch (100%), with the vesting percentage rounded to the nearest whole percentage
point; or
(vi) if the Annual Goal result is below Threshold level, the Restricted Equity Units
for that Annual Goal based on the Weight shall not vest, but the Restricted Equity Units for
other Annual Goals shall still be eligible for vesting based upon this Section 3.1(c).
For example, if a Tranche is 100 Restricted Equity Units, the Annual Goals for that Tranche are
EBITDA and revenue, and the Weight for EBITDA and revenue is 50% each, then 50 Restricted Equity
Units are eligible to vest based on Travelport’s achievement of EBITDA as compared with the
Threshold, Target and Stretch levels for that calendar year and 50 Restricted Equity Units are
eligible to vest based on Travelport’s achievement of revenue as compared with the Threshold,
Target and Stretch levels for that calendar year. The number of Restricted Equity Units, if any,
that will vest (subject to the other conditions of this Agreement, including without limitation
continued employment through the Vesting Date) on each August 1 shall be determined on the date on
which Travelport’s annual financial statements are certified by Travelport’s Chief Financial
Officer and Chief Accounting Officer, and which date shall be no later than March 31 following the
applicable calendar year. The number of Restricted Equity Units that vest for a particular calendar
year shall be rounded to the nearest number of whole units.
(d) For each calendar year’s Tranche of Restricted Equity Units, the number of Restricted
Equity Units that do not vest based on Section 3.1(c)(ii)-(vi) shall remain eligible for vesting
based upon the Travelport EBITDA, cash flow and/or other financial targets for any other
performance period(s) that may, in its sole and complete discretion, be established and defined by
the Board in good faith (“the Catch-Up Goals”). Such Catch-Up Goals may be established by the
Board at multiple times on or before December 31, 2014. The number of Restricted Equity Units, if
any, that vest on each August 1 (beginning on August 1, 2013) based on the achievement of
Travelport’s results as compared with the Catch-Up Goals shall be determined on the date on which
Travelport’s annual financial statements for prior calendar year are certified by Travelport’s
Chief Financial Officer and Chief Accounting Officer, and which date shall be no later than March
31. The number of Restricted Equity Units that vest based on the Catch-Up Goals shall be rounded to
the nearest number of whole units. All Restricted Equity Units that have not vested on August 2,
2015 shall be forfeited.
(e) Notwithstanding the foregoing in the event that:
(i) a Change in Control occurs at a time when Executive is employed by the Company,
Executive shall thereupon be deemed to have vested in the unvested Restricted Equity Units
at Target (including, for the avoidance of doubt, any Restricted Equity Units that remain
unvested due to the failure in any prior calendar year(s) to achieve the Annual Goals at
Target) immediately prior to such Change of Control (and such Restricted Equity Units shall
automatically convert to Vested Restricted Equity Units hereunder) and any Restricted Equity
Units that remain unvested after such conversion shall be forfeited;
(ii) Executive’s employment with the Company is terminated by the Company other than
for Cause, by Executive as the result of a Constructive Termination, or as a result of death
or Disability, Executive shall be deemed to have vested in the unvested Restricted Equity
Units that would have vested (and such Restricted Equity Units shall be treated as Vested
Restricted Equity Units hereunder) assuming (1) that Executive’s employment continued for
eighteen (18) months following the termination of Executive’s employment (“Accelerated
Vesting Date”), (2) that the award vests ratably on a monthly basis beginning on the August
1 preceeding the termination of Executive’s employment through the Accelerated Vesting Date
over the remainder of the performance period that ends on December 31, 2014, and (3)
performance at Target. For example, if Executive was terminated without Cause on September
1, 2011, then Executive will receive 26/48ths vesting of all unvested Restricted
Equity Units as of the termination date at Target. Any Restricted Equity Units that remain
unvested after the application of this Section 3(e)(ii) shall be forfeited; and
(iii) Executive’s employment with the Company is terminated for any reason, except as
set forth, and to the extent provided, in Section 3.1(e)(ii), Executive shall have no right
to further vesting of the Restricted Equity Units that are Unvested Restricted Equity Units
(and such Restricted Equity Units shall be forfeited on such termination of employment).
3.2. Transfer Prohibited. Executive may not sell, assign, transfer, pledge or
otherwise encumber (or make any other Disposition of) any Restricted Equity Units, except upon the
death of Executive. Upon any attempted Disposition in violation of this Section 3.2, the
Restricted Equity Units shall immediately become null and void.
3.3. Delivery of Class A-2 Interests.
No Class A-2 Interest covered by a Restricted Equity Unit shall be delivered to Executive
until the Restricted Equity Unit becomes a Vested Restricted Equity Unit. Vested Restricted
Equity Units shall be delivered within 30 days of the vesting date, or if later, upon each of the
following conditions precedent to delivery of such Class A-2 Interest having been satisfied in full
(provided such conditions must be satisfied, and the Class A-2 Interest delivered, not later than
March 15 of the year following the year of vesting):
(i) Executive shall have paid to the Company such amount as may be requested by the
Partnership for purposes of remitting any income tax or other taxes required by law to be
withheld with respect to the delivery of the Restricted Equity Units (provided that this
condition may be satisfied if the Company withholds Class A-2 Interests to cover such
required withholding amounts).
(ii) Executive (or Executive’s executors or beneficiaries) and, if applicable, the
spouse of Executive (or Executive’s executors or beneficiaries) shall have executed and
delivered to the Partnership an Addendum Agreement pursuant to which Executive (or
Executive’s executors or beneficiaries ) shall have become a party to the Partnership
Agreement and a Class A-2 Limited Partner.
3.4. Termination of Restricted Equity Units.
Subject to Section 3.1, Unvested Restricted Equity Units shall be canceled if Executive’s
employment with the Company is terminated for any reason (including death or Disability).
3.5. Partnership Agreement; Call Rights. Executive acknowledges receipt of a copy of
the Partnership Agreement and represents that Executive understands that (i) the terms of Class A-2
Interests are set forth in, and governed by, the Partnership Agreement, (ii) Executive shall have
no
rights in respect of such Class A-2 Interests (including any right to receive distributions
under the Partnership Agreement) until the Company delivers such Class A-2 Interests pursuant to
the terms hereof and Executive becomes a Class A-2 Limited Partner pursuant to the Partnership
Agreement and (iii) the Partnership Agreement may be amended or modified from time to time prior to
Executive becoming a party thereto pursuant to the terms of the Partnership Agreement.
Notwithstanding the foregoing or anything to the contrary in the Partnership Agreement, Class A-2
Interests delivered pursuant to a Restricted Equity Unit granted pursuant to this Agreement shall
not, until the earlier of (a) the end of the Restricted Period (as defined below) or (b) the breach
of any covenant contained in Section 5 of this Agreement (the “No-Call Period”), be (i) forfeitable
pursuant to Article XII of the Partnership Agreement or (ii) subject to the mandatory purchase
provisions of Article XII of the Partnership Agreement; provided that, in each case, any time
periods contained in the Partnership Agreement that would otherwise have lapsed during the No-Call
Period shall not begin to run until after the expiration of such No-Call Period (or, if later, the
date on which the Partnership has actual knowledge of the expiration of such No-Call Period).
SECTION 4
DISTRIBUTION EQUIVALENT RIGHTS
DISTRIBUTION EQUIVALENT RIGHTS
4.1. Payments and Allocations upon Distributions. If on any date while Restricted
Equity Units are outstanding hereunder, the Partnership shall make any distribution to holders of
Class A Interests pursuant to Article VIII of the Partnership Agreement, the Partnership shall
cause the Company to allocate to a notional account for Executive (the “Notional Account”) an
amount, in respect of each Unvested Restricted Equity Unit, equal to the amount that would have
been payable in respect of the Class A-2 Interest underlying such Unvested Restricted Equity Unit
if it were issued and outstanding on the date of such distribution.
4.2. Additional Payments upon Vesting. On any date that any Unvested Restricted
Equity Units become Vested Restricted Equity Units, Executive shall be entitled to receive an
amount (such amount, the “Unvested Distribution Equivalent Payment” equal to the product of (x) all
amounts then credited to Executive’s Notional Account multiplied by (y) a fraction, the numerator
of which shall be the number of Restricted Equity Units that became Vested Restricted Equity Units
on such date and denominator of which shall be the total number of Unvested Restricted Equity Units
immediately prior to such date. Upon payment of any Unvested Distribution Equivalent Payment, the
amount credited to the Notional Account shall be reduced thereby.
4.3. Adjustments to Hypothetical Capital Contribution. Upon payment of any Unvested
Distribution Equivalent Payment, the hypothetical Capital Contribution associated with Class A-2
Interests issued pursuant to the Restricted Equity Units shall be reduced by such Distribution
Equivalent Payment (until such hypothetical amount shall equal zero, at which point it shall not be
further reduced).
4.4. Withholding. The Partnership and the Company shall have the right and is hereby
authorized to withhold from any Distribution Equivalent Payment the amount of any applicable
withholding taxes in respect of such payment and to take such action as may be necessary in the
opinion of the Partnership or the Company to satisfy all obligations for the payment of such taxes.
SECTION 5
NON-COMPETITION AND CONFIDENTIALITY
5.1. 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 or former status with any Company or any of its Affiliates (and in the case of
former status, for the direct or indirect benefit of any Competitor) to obtain loans, goods or
services from another organization on terms that would not be available to him or any Competitor in
the absence of his relationship or prior 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 5.2, 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 5.1, the term “Competitor”
means any enterprise or business that is engaged, at any time during the Restricted Period or has
plans to engage at any time during the Restricted Period, in any activity either (x) in which the
Executive was involved as an employee of the Company or any of its Affiliates to a material extent
in the 12 month period preceding the date upon which the Executive ceased to be employed by the
Company or (y) in relation to which the Executive holds Confidential Information (as defined in
Section 5.2(a)) and in either case which competes with the businesses conducted during or at the
termination of Executive’s employment, or planned or proposed to be conducted at any time during
the Restricted Period, 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.
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, 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
during 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, internationally and worldwide, and agrees that the
provisions in the foregoing sentence shall operate throughout the entire geographic territory for
which Executive performed duties for the Company or acted on behalf of the Company during
Executive’s employment, the United Kingdom, the United States and any other country in the world
in which the Company operated or operates during the Restricted Period (subject to the definition
of “Competitor”).
(c) During the Restricted Period, Executive, without express prior written approval from the
Board, shall not solicit (whether directly or indirectly) on his own account or on behalf of any
Competitor any Clients 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. For the purposes of Section 5.1(c) and 5.1(d), “Client” shall
mean any person, firm, company, organization, or enterprise (A) who or which in the 12 month period
preceding the date upon which the Executive ceased to be employed by the Company was provided with
products or services by the Company or any of its Affiliates or (B) to or with whom in the 12 month
period preceding the date upon which the Executive ceased to be employed by the Company, the
Company or any of its Affiliates submitted a tender or a proposal, undertook or made a pitch or
presentation or with whom or which it was otherwise negotiating for the supply of products or
services or (C) in relation to whom the Executive holds Confidential Information (as defined in
Section 5.2(a)).
(d) During the Restricted Period, Executive, without prior express written approval from the
Board, shall not (whether directly or indirectly) on his own account or on behalf of any Competitor
deal with any Client.
(e) During the Restricted Period, Executive shall not (whether directly or indirectly)
interfere with the employees or affairs of the Company or any of its Affiliates or solicit or
induce any person who is a Key Person 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 Key Person. For the purposes of this Section 5.1(e), “Key
Person” means any person who at the date upon which the Executive ceased to be employed by the
Company, or at any point in the preceding 12 month period, (A) was an employee of the Company or
any of its Affiliates classified by the Company as Band 9 or above (or equivalent), or (B) who
reported directly to the Executive, or (C) with whom the Executive had material dealings.
(f) During the Restricted Period, Executive, without prior written approval from the Board,
shall not (whether directly or indirectly) on his own account or on behalf of any Competitor
induce, solicit or entice to try to induce, solicit or entice any Supplier to cease conducting
business with the Company or any of its Affiliates or reduce the amount of business conducted with
the Company or any of its Affiliates or to adversely vary the terms upon which any business is
conducted with the Company or any of its Affiliates. For the purposes of this Section 5.1(f),
“Supplier” shall mean any person, firm, company, organization or enterprise who or which at any
time in the 12 month period preceding the date upon which the Executive ceased to be employed by
the Company (A) supplied products or services (other than utilities or products or services
provided for routine administrative purposes) to the Company or any of its Affiliates or (B) was
negotiating with or had pitched to the Company or any of its Affiliates to supply goods or services
(other than utilities or products or services provided for routine administrative purposes) to the
Company or any of its Affiliates.
(g) 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.
(h) The period of time during which the provisions of this Section 5.1 shall be in effect
shall be extended by the length of time during which the parties are in litigation over a claim
that the Executive is in breach of the terms hereof.
(i) Executive agrees that the restrictions contained in this Section 5.1 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. The
Executive further agrees that the restrictions contained in this Section 5.1 constitute entirely
separate, severable and independent restrictions.
(j) It is expressly understood and agreed that although Executive and the Company consider the
restrictions contained in this Section 5.1 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.
5.2. Confidentiality.
(a) 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, sales, marketing,
promotions, government and regulatory activities and approvals) concerning the past, current or
future business, activities and operations of the Company or its 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.
(b) “Confidential Information” shall not include any information that is (i) 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; (ii) made legitimately available to
Executive by a third party without breach of any confidentiality obligation; or (iii) 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.
(c) 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 Section 5 of this Agreement provided they agree to maintain the
confidentiality of such terms.
(d) 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 or its
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
and its Affiliates, 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.
5.3. Intellectual Property.
(a) 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, copyright, trademark,
trade secret, unfair competition and related laws) therein for all purposes in connection with
the Company’s current and future business.
(b) 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.
(c) 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.
(d) 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.
(e) 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 the
Travelport Code of Business Conduct & Ethics and other Company policies regarding the protection of
confidential information (including without limitation information security and customer data),
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.
5.4. Specific Performance. Executive acknowledges and agrees that the Partnership’s
remedies at law for a breach or threatened breach of any of the provisions of this Section 5 would
be inadequate and the Partnership would suffer irreparable damages as a 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 Partnership, 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. Without limiting the generality of the foregoing, neither party shall
oppose any motion the other party may make for any expedited discovery or hearing in connection
with any alleged breach of this Section 5.
5.5. Survival. The provisions of this Section 5 shall survive the termination of
Executive’s employment for any reason.
SECTION 6
MISCELLANEOUS
6.1. Tax Issues. THE ISSUANCE OF THE RESTRICTED EQUITY UNITS TO EXECUTIVE AND/OR THE
DELIVERY OF THE CLASS A-2 INTERESTS PURSUANT TO THIS AGREEMENT INVOLVES COMPLEX AND SUBSTANTIAL TAX
CONSIDERATIONS. EXECUTIVE ACKNOWLEDGES THAT HE HAS CONSULTED HIS OWN TAX ADVISOR WITH RESPECT TO
THE TRANSACTIONS DESCRIBED IN THIS AGREEMENT. THE COMPANY MAKES NO WARRANTIES OR
REPRESENTATIONS WHATSOEVER TO EXECUTIVE REGARDING THE TAX CONSEQUENCES OF EXECUTIVE’S RECEIPT OF
THE RESTRICTED EQUITY UNITS AND/OR CLASS A-2 INTERESTS OR THIS AGREEMENT. EXECUTIVE
ACKNOWLEDGES AND AGREES THAT EXECUTIVE SHALL BE SOLELY RESPONSIBLE FOR ANY TAXES ON THE RESTRICTED
EQUITY UNITS AND SHALL HOLD THE COMPANY, ITS OFFICERS, DIRECTORS AND EMPLOYEES HARMLESS FROM ANY
LIABILITY ARISING FROM ANY TAXES INCURRED BY EXECUTIVE IN CONNECTION WITH THE RESTRICTED EQUITY
UNITS.
6.2. Legal Entitlement.
(a) The Plan shall not form part of Executive’s employment contract. The rights and
obligations of Executive under the terms and conditions of his office or employment with the
Company are not affected by his participation in the Plan or any right he may have to participate
in the Plan and nothing in the Plan, or in any instrument executed pursuant to it, shall confer on
any person any right to continue in office or employment. Any person who ceases to be an officer or
employee with the Company as a result of the termination of his employment for any reason and
however the termination occurs, whether lawfully or otherwise, shall not be entitled and shall be
deemed irrevocably to have waived any entitlement by way of damages for dismissal or by way of
compensation for loss of office or employment or otherwise to any sum, damages or other benefits to
compensate that person for the loss or alteration of any rights, benefits or expectations in
relation to any grant of Restricted Equity Units, the Plan or any instrument executed pursuant to
it.
(b) Nothing in the Plan shall be deemed to give (i) any Executive any right to participate in
the Plan or (ii) any Executive any right to receive further grants of Restricted Equity Units under
the Plan.
6.3. Employment of Executive. Executive acknowledges that he is employed by the
Partnership or its Affiliates subject to the terms of his employment agreement with the Partnership
(if any). Any change of Executive’s duties as an employee of the Company shall not result in a
modification of the terms of this Agreement.
6.4. Equitable Adjustments. Notwithstanding any other provisions in this Agreement,
the Partnership Agreement or the Plan to the contrary, in the event of any change in the
outstanding Interests after the date hereof by reason of any equity dividend or split,
reorganization, recapitalization, merger, consolidation, spin-off, combination, combination or
transaction or exchange of Interests or other corporate exchange, or any distribution to Partners
of equity or cash (other than regular cash distributions) or any transaction similar to the
foregoing (regardless of whether outstanding Interests are changed) (collectively, “Adjustment
Events”), the General Partner in its sole discretion and without liability to any Person shall make
such substitution or adjustment, if any, as it deems to be equitable (taking into consideration
such matters, without limitation, as relative value of each class of Interests and the Restricted
Equity Units, status of vesting and the nature of the Adjustment Event and its impact on the
Interests and the Restricted Equity Units) to the Management Limited Partners as a group, as to (i)
the number or kind of Interests or other securities issued or reserved for issuance under the
Partnership Agreement in respect of Restricted Equity Units, (ii) the
vesting terms under this Agreement, (iii) the distribution priorities contained in the
Partnership Agreement and/or (iv) any other affected terms hereunder.
6.5. Calculation of Benefits. Neither the Restricted Equity Units nor the Class A-2
Interests shall be deemed compensation for purposes of computing benefits or contributions under
any retirement plan of the Company and shall not affect any benefits, or contributions to benefits,
under any other benefit plan of any kind now or subsequently in effect under which the availability
or amount of benefits or contributions is related to level of compensation.
6.6. Setoff. The Partnership’s obligation to pay Executive the amounts provided and
to make the arrangements provided hereunder and under the Partnership Agreement shall be subject to
set off, counterclaim or recoupment of amounts owed by such Executive (or any Affiliate of such
Executive (or any of its Relatives) that are Controlled by such Executive (or any of its
Relatives)) to the Partnership or its Affiliates (including without limitation amounts owed
pursuant to the Partnership Agreement).
6.7. Remedies.
(a) The rights and remedies provided by this Agreement are cumulative and the use of any one
right or remedy by any party shall not preclude or waive its right to use any or all other
remedies. These rights and remedies are given in addition to any other rights the parties may have
at law or in equity.
(b) Except where a time period is otherwise specified, no delay on the part of any party in
the exercise of any right, power, privilege or remedy hereunder shall operate as a waiver thereof,
nor shall any exercise or partial exercise of any such right, power, privilege or remedy preclude
any further exercise thereof or the exercise of any right, power, privilege or remedy.
6.8. Waivers and Amendments. The respective rights and obligations of the Partnership
and Executive under this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of time or indefinitely)
in writing by such respective party. This Agreement may be amended only with the written consent
of a duly authorised representative of the Partnership and Executive.
6.9. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia.
6.10. CONSENT TO JURISDICTION.
(a) EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL
COURT LOCATED IN ATLANTA, GEORGIA OR, IF REQUIRED, THE APPROPRIATE GEORGIA STATE OR SUPERIOR
COURT, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH
COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION,
ANY PROCEEDING RELATING TO ANCILLARY MEASURES IN AID OF ARBITRATION, PROVISIONAL REMEDIES AND
INTERIM RELIEF, OR ANY PROCEEDING TO ENFORCE ANY ARBITRAL DECISION OR AWARD. EACH PARTY HEREBY
EXPRESSLY WAIVES ANY AND ALL RIGHTS TO BRING ANY SUIT, ACTION OR OTHER PROCEEDING IN OR BEFORE ANY
COURT OR TRIBUNAL OTHER THAN THE COURTS DESCRIBED ABOVE AND COVENANTS THAT IT SHALL NOT SEEK IN ANY
MANNER TO RESOLVE ANY DISPUTE OTHER THAN AS SET FORTH IN THIS SECTION 6.10 OR TO CHALLENGE OR SET
ASIDE ANY
DECISION, AWARD OR JUDGMENT OBTAINED IN ACCORDANCE WITH THE PROVISIONS HEREOF.
(b) EACH OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE TO
VENUE, INCLUDING, WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY OF SUCH COURTS. IN
ADDITION, EACH OF THE PARTIES CONSENTS TO THE SERVICE OF PROCESS BY PERSONAL SERVICE OR ANY MANNER
IN WHICH NOTICES MAY BE DELIVERED HEREUNDER IN ACCORDANCE WITH SECTION 6.14 OF THIS AGREEMENT.
6.11. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS
AGREEMENT, ANY OF THE OTHER DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
6.12. Successors and Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
6.13. Entire Agreement. This Agreement and the Other Documents constitute the full
and entire understanding and agreement of the parties with regard to the subjects hereof and
supersedes in their entirety all other prior agreements, whether oral or written, with respect
thereto, except as provided herein. This Agreement supersedes all prior agreements and
understandings (including verbal agreements) between Executive and the Company regarding grants of
equity, equity-based or equity-related rights or instruments in any Company (including, for the
avoidance of doubt, any rights promised by Cendant Corporation or its Affiliates in respect of any
Company), except other agreements with respect to limited partnership interests in the Partnership
(including without limitation grants of Restricted Equity Units)
6.14. Notices. All demands, notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be personally delivered or
sent by facsimile machine (with a confirmation copy sent by one of the other methods authorized in
this Section 6.14), reputable commercial overnight delivery service (including Federal Express and
U.S. Postal Service overnight delivery service), as set forth below:
If to the Partnership or the Company, addressed to:
TDS Investor (Cayman) L.P.
c/o Travelport
Legal Department
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
XXX
c/o Travelport
Legal Department
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
XXX
Attention: Xxxx X. Xxxx, Executive Vice President,
Chief Administrative Officer and General Counsel
Fax: (000) 000-0000
Chief Administrative Officer and General Counsel
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 Partnership’s records.
Notices shall be deemed given upon the earlier to occur of (i) receipt by the party to whom such
notice is directed; (ii) if sent by facsimile machine, on the day (other than a Saturday, Sunday or
legal holiday in the jurisdiction to which such notice is directed) such notice is sent if sent (as
evidenced by
the facsimile confirmed receipt) prior to 5:00 p.m. Eastern Time and, if sent after 5:00 p.m.
Eastern Time, on the day (other than a Saturday, Sunday or legal holiday in the jurisdiction to
which such notice is directed) after which such notice is sent; (iii) on the first business day
(other than a Saturday, Sunday or legal holiday in the jurisdiction to which such notice is
directed) following the day the same is deposited with the commercial courier if sent by commercial
overnight delivery service; or (iv) the fifth day (other than a Saturday, Sunday or legal holiday
in the jurisdiction to which such notice is directed) following deposit thereof with the U.S.
Postal Service as aforesaid. Each party, by notice duly given in accordance therewith, may specify
a different address for the giving of any notice hereunder.
6.15. No Third Party Beneficiaries. There are no third party beneficiaries of this
Agreement.
6.16. Agreement Subject to Partnership Agreement and Plan. By entering into this
Agreement, Executive agrees and acknowledges that Executive has received and read a copy of the
Partnership Agreement and the Plan and that the Restricted Equity Units are subject to the
Partnership Agreement and the Plan. The terms and provisions of the Partnership Agreement and the
Plan as may be amended from time to time are hereby incorporated by reference. In the event of a
conflict between any term or provision contained herein and a term or provision of the Partnership
Agreement or the Plan, the applicable terms and provisions of the Partnership Agreement or the Plan
will govern and prevail.
6.17. Severability; Titles and Subtitles; Gender; Singular and Plural; Counterparts;
Facsimile.
(a) In case any provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby.
(b) The titles of the sections and subsections of this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement.
(c) The use of any gender in this Agreement shall be deemed to include the other genders, and
the use of the singular in this Agreement shall be deemed to include the plural (and vice versa),
wherever appropriate.
(d) This Agreement may be executed in any number of counterparts, each of which shall be an
original, but all of which together constitute one instrument.
(e) Counterparts of this Agreement (or applicable signature pages hereof) that are manually
signed and delivered by facsimile transmission shall be deemed to constitute signed original
counterparts hereof and shall bind the parties signing and delivering in such manner.
IN WITNESS WHEREOF, the Partnership and Executive have executed this Agreement as of the day
and year first written above.
| COMPANY: TDS Investor (Cayman) L.P. |
||||
| By: | TDS Investor (Cayman) GP Ltd., | |||
| its general partner | ||||
| By: | ||||
| Signature: | ||||
| Name: | ||||
| Title: | ||||
| EXECUTIVE: |
||||
| Signature: | ||||
| Address: |
||||
| Telephone No. | ||||
| Fax No. | ||||
| Number of Restricted Equity Units: |
||||
