EXHIBIT 10.16
EXPEDIA, INC. RESTRICTED STOCK UNIT AGREEMENT
THIS AGREEMENT, dated as of the award date (the "Award Date") designated on
the Summary of Award referenced below, between Expedia, Inc., a Delaware
corporation (the "Corporation"), and Xxxx Xxxxxxxxxxxx (the "Eligible
Individual") designated as receiving an award of restricted stock units (the
"Restricted Stock Units") by the Compensation/Benefits Committee of the Board of
Directors of the Corporation (or such other Committee as the Board may from time
to time designate) (the "Committee").
All capitalized terms used herein, to the extent not defined, shall have
the meanings set forth in the Corporation's 2005 Stock and Annual Incentive Plan
(the "Plan").
1. AWARD AND VESTING OF RESTRICTED STOCK UNITS.
(a) Subject to the provisions of this Agreement and to the provisions of
the Plan, the Corporation hereby grants to the Eligible Individual 800,000
restricted stock units (the "Restricted Stock Units") pursuant to Section 7 of
the Plan. Reference is made to the "Summary of Award" that can be found on the
Xxxxx Xxxxxx Benefit Access System at xxx.xxxxxxxxxxxxx.xxx. Your Summary of
Award, which sets forth the number of Restricted Stock Units granted to you by
the Corporation and the Award Date (among other information), is hereby
incorporated by reference into, and shall be read as part and parcel of, this
Agreement.
(b) Subject to the terms and conditions of this Agreement and the
provisions of the Plan, the Restricted Stock Units shall vest and no longer be
subject to any restriction (such period during which restrictions apply is the
"Restriction Period") in the event both (i) one of the two performance goals
approved by the Committee (the "Performance Goals") and relating to EBITA or the
Corporation's stock price is achieved and (ii) the OIBA Target (as defined
below) is achieved (collectively, the "Combined Goals"):
Vesting Date Percentage of Total Grant Vesting
------------ ---------------------------------
Upon the attainment by the Corporation 75%
of the Combined Goals (as further
referenced below)
On the one year anniversary of the 25%
attainment of the Combined Goals,
provided the Eligible Employee has not
voluntarily terminated his employment
with the Corporation and has not been
terminated by the Corporation for Cause
"OIBA Target" as used herein means that certain Corporation operating
income before amortization ("OIBA") target approved by the Committee with
respect to the vesting of
Restricted Stock Units awarded to the Eligible Individual under this Agreement.
The "Modified OIBA Target" as used herein means that certain OIBA target
approved by the Committee with respect to any fiscal year in which the Eligible
Individual's employment is terminated by the Company without Cause.
(c) Notwithstanding the provisions of Paragraph 1(b), if the Eligible
Individual incurs a Termination of Employment by the Corporation without Cause
during a fiscal year in which the Modified OIBA Target is met and prior to such
Termination of Employment one of the Performance Goals has been met, then 75% of
the Restricted Stock Units will vest (and the Restriction Period shall lapse for
such Restricted Stock Units) as soon as practicable following the determination
by the Committee within sixty (60) days following the end of the applicable
fiscal year that the Modified OIBA Target and one of the Performance Goals have
been met and all remaining unvested Restricted Stock Units shall be forfeited by
the Eligible Individual. If the Committee determines that either (x) the
Modified OIBA Target has not been met, or (y) both of the Performance Goals have
not been met, then all the Restricted Stock Units will be forfeited immediately,
provided, however, that the Committee shall have the discretion to waive, in
whole or in part, any or all remaining restrictions with respect to any or all
of such Eligible Individual's Restricted Stock Units.
(d) Notwithstanding the provisions of Paragraph 1(b), in the event the
Eligible Individual incurs a Termination of Employment by the Corporation for
Cause, or the Eligible Individual voluntarily incurs a Termination of Employment
within two years after any event or circumstance that would have been grounds
for a Termination of Employment for Cause, the Eligible Individual's Restricted
Stock Units (whether or not vested) shall be forfeited and canceled in their
entirety upon such Termination of Employment, and the Corporation may cause the
Eligible Individual, immediately upon notice from the Corporation, either to
return the shares or cash issued upon settlement of Restricted Stock Units that
vested during the two-year period after the events or circumstances giving rise
to or constituting grounds for such Termination of Employment for Cause or to
pay to the Corporation an amount equal to the aggregate amount, if any, that the
Eligible Individual had previously realized in respect of any and all shares
issued upon settlement of Restricted Stock Units that vested during the two-year
period after the events or circumstances giving rise to or constituting grounds
for such Termination of Employment for Cause (i.e., the value of the Restricted
Stock Units upon vesting), in each case including any dividend equivalents or
other distributions received in respect of any such Restricted Stock Units.
(e) In the event the Eligible Individual incurs a Termination of Employment
during the Restriction Period for any reason other than as set forth in
Paragraph 1(c) or Paragraph 5 (with respect to a Change of Control), all
remaining unvested Restricted Stock Units shall be forfeited by the Eligible
Individual and canceled in their entirety effective immediately upon such
termination.
(f) For purposes of this Agreement, employment with the Corporation shall
include employment with the Corporation's Affiliates and its successors. Nothing
in this Agreement or the Plan shall confer upon the Eligible Individual any
right to continue in the employ of the Corporation or any of its Affiliates or
interfere in any way with the right of the Corporation or any such Affiliates to
terminate the Eligible Individual's employment at any time.
2. SETTLEMENT OF UNITS.
As soon as practicable after any Restricted Stock Units have vested and are
no longer subject to the Restriction Period (or, to the extent compliant with
Section 409A of the Code, at such later date specified by the Committee or in
accordance with the election of the Eligible Individual, if the Committee so
permits), such Restricted Stock Units shall be settled, provided that, to the
extent that any Restricted Stock Units shall be settled due to a Termination of
Employment following a Change of Control, to the extent required in order to
comply with Section 409A of the Code, such Restricted Stock Units shall be
settled no earlier than the first business day that is six months following the
Eligible Individual's "separation from service" within the meaning of Section
409A of the Code. Subject to Paragraph 8 (pertaining to the withholding of
taxes), for each Restricted Stock Unit settled pursuant to this Paragraph 2, the
Corporation shall (i) if the Eligible Individual is employed within the United
States, issue one share of Common Stock for each vested Restricted Stock Unit
and cause to be delivered to the Eligible Individual one or more unlegended,
freely-transferable stock certificates in respect of such shares issued upon
settlement of the vested Restricted Stock Units or (ii) if the Eligible
Individual is employed outside the United States, pay, or cause to be paid, to
the Eligible Individual an amount of cash equal to the Fair Market Value of one
share of Common Stock for each vested Restricted Stock Unit settled at such
time. Notwithstanding the foregoing, the Corporation shall be entitled to hold
the shares or cash issuable upon settlement of Restricted Stock Units that have
vested until the Corporation or the agent selected by the Corporation to manage
the Plan under which the Restricted Stock Units have been issued (the "Agent")
shall have received from the Eligible Individual a duly executed Form W-9 or
W-8, as applicable.
3. NON-TRANSFERABILITY OF THE RESTRICTED STOCK UNITS.
During the Restriction Period and until such time as the Restricted Stock
Units are ultimately settled as provided in Paragraph 2 above, the Restricted
Stock Units shall not be transferable by the Eligible Individual by means of
sale, assignment, exchange, encumbrance, pledge, hedge or otherwise.
4. RIGHTS AS A STOCKHOLDER.
Except as otherwise specifically provided in this Agreement, during the
Restriction Period the Eligible Individual shall not be entitled to any rights
of a stockholder with respect to the Restricted Stock Units. Notwithstanding the
foregoing, if the Corporation declares and pays dividends on the Common Stock
during the Restriction Period, the Eligible Individual will be credited with
additional amounts for each Restricted Stock Unit equal to the dividend that
would have been paid with respect to such Restricted Stock Unit if it had been
an actual share of Common Stock, which amount shall remain subject to
restrictions (and as determined by the Committee, may be reinvested in
Restricted Stock Units or may be held in kind as restricted cash or property)
and shall vest concurrently with the vesting of the Restricted Stock Units upon
which such dividend equivalent amounts were paid. Notwithstanding the foregoing,
dividends and distributions other than regular quarterly cash dividends, if any,
may result in an adjustment pursuant to Paragraph 5, rather than under this
Paragraph 4.
5. ADJUSTMENTS IN THE EVENT OF CHANGE IN STOCK; CHANGE IN CONTROL.
(a) Subject to the provisions of Paragraph 5(b), in the event of (i) a
stock dividend, stock split, reverse stock split, share combination, or
recapitalization or similar event affecting the capital structure of the
Corporation (each, a "Share Change"), or (ii) a merger, consolidation,
acquisition of property or shares, separation, spinoff, reorganization, stock
rights offering, liquidation, Disaffiliation, payment of cash dividends other
than an ordinary dividend or similar event affecting the Corporation or any of
its Subsidiaries (each, a "Corporate Transaction"), the Committee or the Board
may in its discretion make such substitutions or adjustments as it deems
appropriate and equitable to the number of Restricted Stock Units and the number
and kind of shares of Common Stock underlying the Restricted Stock Units.
In the case of Corporate Transactions, such adjustments may include,
without limitation (i) the cancellation of the Restricted Stock Units in
exchange for payments of cash, property or a combination thereof having an
aggregate value equal to the value of such Restricted Stock Units, as determined
by the Committee or the Board in its sole discretion, (ii) the substitution of
other property (including, without limitation, cash or other securities of the
Corporation and securities of entities other than the Corporation) for the
shares of Common Stock underlying the Restricted Stock Units and (iii) in
connection with any Disaffiliation, arranging for the assumption of the
Restricted Stock Units, or the replacement of the Restricted Stock Units with
new awards based on other property or other securities (including, without
limitation, other securities of the Corporation and securities of entities other
than the Corporation), by the affected Subsidiary, Affiliate or division or by
the entity that controls such Subsidiary, Affiliate or division following such
Disaffiliation (as well as any corresponding adjustments to any Restricted Stock
Units that remain based upon securities of the Corporation).
The determination of the Committee regarding any such adjustment will be
final and conclusive and need not be the same for all recipients of restricted
stock units granted under the Plan.
(b) In the event of a Change in Control (as defined in the Plan; provided,
however, that for the purposes of this Agreement, a "Change in Control" shall in
addition include any such event, including the termination of the irrevocable
proxy held by Xxxxx Xxxxxx to vote shares of the Corporation held by Liberty
Media Corporation or its affiliates, or acquisition by Liberty Media Corporation
and their respective affiliates of Beneficial Ownership of equity securities of
the Corporation whereby Liberty Media Corporation acquires or assumes more than
35% of the voting power of the then outstanding equity securities of the
Corporation entitled to vote generally in the election of directors), then 50%
of the Restricted Stock Units shall automatically vest without regard to the
achievement of the OIBA Target or the Performance Goals. If, within one year
following such Change of Control, (i) the Eligible Individual incurs a material
and demonstrable adverse change in the nature and scope of the Eligible
Individual's duties from those in effect immediately prior to the Change of
Control, or (ii) the Eligible Individual incurs a Termination of Employment by
the Corporation without Cause, then the remaining Restricted Stock Units shall
vest, in each case without regard to the achievement of the OIBA Target or the
Performance Goals. This Paragraph 5(b) shall not apply to the Eligible
Individual's Restricted Stock Units in the event of the Eligible Individual's
Termination of Employment prior to a Change in Control.
6. PAYMENT OF TRANSFER TAXES, FEES AND OTHER EXPENSES.
The Corporation agrees to pay any and all original issue taxes and stock
transfer taxes that may be imposed on the issuance of shares received by an
Eligible Individual in connection with the Restricted Stock Units, together with
any and all other fees and expenses necessarily incurred by the Corporation in
connection therewith.
7. OTHER RESTRICTIONS.
(a) The Restricted Stock Units shall be subject to the requirement that, if
at any time the Committee shall determine that (i) the listing, registration or
qualification of the shares of Common Stock subject or related thereto upon any
securities exchange or under any state or federal law, or (ii) the consent or
approval of any government regulatory body is required, then in any such event,
the award of Restricted Stock Units shall not be effective unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
(b) The Eligible Individual acknowledges that the Eligible Individual is
subject to the Corporation's policies regarding compliance with securities laws,
including but not limited to its Securities Trading Policy (as in effect from
time to time and any successor policies) and pursuant to these policies, if the
Eligible Individual is on the Corporation's insider list, the Eligible
Individual shall be required to obtain pre-clearance from the Corporation's
General Counsel prior to purchasing or selling any of the Corporation's
securities, including any shares issued upon vesting of the Restricted Stock
Units, and may be prohibited from selling such shares other than during an open
trading window. The Eligible Individual further acknowledges that, in its
discretion, the Corporation may prohibit the Eligible Individual from selling
such shares even during an open trading window if the Corporation has concerns
over the potential for xxxxxxx xxxxxxx.
8. TAXES AND WITHHOLDING.
No later than the date as of which an amount first becomes includible in
the gross income of the Eligible Individual for federal, state, local or foreign
income or employment or other tax purposes with respect to any Restricted Stock
Units, the Eligible Individual shall pay to the Corporation, or make
arrangements satisfactory to the Corporation regarding the payment of, any
federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount. The obligations of the Corporation under
this Agreement shall be conditioned on compliance by the Eligible Individual
with this Paragraph 8, and the Corporation and its Affiliates shall, to the
extent permitted by law, have the right to deduct any such taxes from any
payment otherwise due to the Eligible Individual, including deducting such
amount from the delivery of shares or cash issued upon settlement of the
Restricted Stock Units that gives rise to the withholding requirement.
9. NOTICES.
All notices and other communications under this Agreement shall be in
writing and shall be given by hand delivery to the other party or by facsimile,
overnight courier, or registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Eligible Individual: at the last known address on record
at the Corporation.
If to the Corporation:
Expedia, Inc.
0000 000xx Xxxxxx X.X.
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
or to such other address or facsimile number as any party shall have furnished
to the other in writing in accordance with this Paragraph 9. Notice and
communications shall be effective when actually received by the addressee.
Notwithstanding the foregoing, the Eligible Individual consents to electronic
delivery of documents required to be delivered by the Corporation under the
securities laws.
10. EFFECT OF AGREEMENT.
Except as otherwise provided hereunder, this Agreement shall be binding
upon and shall inure to the benefit of any successor or successors of the
Corporation. The terms, conditions and vesting on any previously granted Awards
to the Eligible Employee remain in full force and effect.
11. LAWS APPLICABLE TO CONSTRUCTION; CONSENT TO JURISDICTION.
The interpretation, performance and enforcement of this Agreement shall be
governed by the laws of the State of Delaware without reference to principles of
conflict of laws, as applied to contracts executed in and performed wholly
within the State of Delaware. In addition to the terms and conditions set forth
in this Agreement, the Restricted Stock Units are subject to the terms and
conditions of the Plan, which are hereby incorporated by reference.
Any and all disputes arising under or out of this Agreement, including
without limitation any issues involving the enforcement or interpretation of any
of the provisions of this Agreement, shall be resolved by the commencement of an
appropriate action in the state or federal courts located within the state of
Delaware, which shall be the exclusive jurisdiction for the resolution of any
such disputes. The Eligible Individual hereby agrees and consents to the
personal jurisdiction of said courts over the Eligible Individual for purposes
of the resolution of any and all such disputes.
12. SEVERABILITY.
The invalidity or enforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement.
13. CONFLICTS AND INTERPRETATION.
In the event of any conflict between this Agreement and the Plan, the Plan
shall control. In the event of any ambiguity in this Agreement, or any matters
as to which this Agreement is
silent, the Plan shall govern including, without limitation, the provisions
thereof pursuant to which the Committee has the power, among others, to (i)
interpret the Plan, (ii) prescribe, amend and rescind rules and regulations
relating to the Plan, and (iii) make all other determinations deemed necessary
or advisable for the administration of the Plan.
In the event of any (i) conflict between the Summary of Award (or any other
information posted on the Xxxxx Xxxxxx Benefit Access System) and this
Agreement, the Plan and/or the books and records of the Corporation or (ii)
ambiguity in the Summary of Award (or any other information posted on the Xxxxx
Xxxxxx Benefit Access System), this Agreement, the Plan and/or the books and
records of the Corporation, as applicable, shall control.
14. AMENDMENT.
The Corporation may modify, amend or waive the terms of the Restricted
Stock Unit award, prospectively or retroactively, but no such modification,
amendment or waiver shall impair the rights of the Eligible Individual without
his or her consent, except as required by applicable law, NASDAQ or stock
exchange rules, tax rules or accounting rules. The waiver by either party of
compliance with any provision of this Agreement shall not operate or be
construed as a waiver of any other provision of this Agreement, or of any
subsequent breach by such party of a provision of this Agreement.
15. HEADINGS.
The headings of paragraphs herein are included solely for convenience of
reference and shall not affect the meaning or interpretation of any of the
provisions of this Agreement.
16. SECTION 409A SAVINGS CLAUSE
(i) The terms and conditions governing the Restricted Stock Units,
including any rules for elective or mandatory deferral of the delivery of cash
or shares of Common Stock pursuant thereto and any rules regarding treatment of
such Restricted Stock Units in the event of a Change in Control, shall comply in
all respects with Section 409A of the Code.
(ii) Following a Change in Control, no action shall be taken under this
Agreement that will cause the Restricted Stock Units to fail to comply in any
respect with Section 409A of the Code without the written consent of the
Eligible Individual.
17. DATA PROTECTION
The Eligible Individual authorizes the release from time to time to the
Corporation (and any of its subsidiaries or affiliated companies) and to the
Agent (together, the "Relevant Companies") of any and all personal or
professional data that is necessary or desirable for the administration of the
Plan and/or this Agreement (the "Relevant Information"). Without limiting the
above, the Eligible Individual permits his or her employing company to collect,
process, register and transfer to the Relevant Companies all Relevant
Information (including any professional and personal data that may be useful or
necessary for the purposes of the administration of the Plan and/or this
Agreement and/or to implement or structure any further grants of equity awards
(if any)). The Eligible Individual hereby authorizes the Relevant
Information to be transferred to any jurisdiction in which the Corporation, his
or her employing company or the Agent considers appropriate. The Eligible
Individual shall have access to, and the right to change, the Relevant
Information. Relevant Information will only be used in accordance with
applicable law.
18. NON-COMPETE.
In consideration of the Corporation's award of Restricted Stock Units, the
Eligible Individual hereby agrees and covenants that during his employment with
the Corporation and its Subsidiaries and Affiliates and for a period of 24
months beyond the Eligible Individual's date of Termination of Employment for
any reason (the "Non-Compete Period"), the Eligible Individual shall not,
directly or indirectly, engage in, assist or become associated with a
Competitive Activity. For purposes of this Agreement: (i) a "Competitive
Activity" means, at the time of such Eligible Individual's termination, any
business or other endeavor, in any jurisdiction, of a kind being conducted by
the Corporation or any of its subsidiaries or, if engaged in the provision of
any travel related services, any of its Affiliates in any jurisdiction (or
demonstrably anticipated by the Corporation or its Subsidiaries or Affiliates)
as of the date hereof or at any time thereafter; and (ii) the Eligible
Individual shall be considered to have become "associated with a Competitive
Activity" if the Eligible Individual 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, the Eligible Individual may make and
retain investments during the Non-Compete 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 the Eligible Individual is not otherwise affiliated
with such corporation.
19. COUNTERPARTS.
This Agreement may be executed in counterparts, which together shall
constitute one and the same original.
IN WITNESS WHEREOF, as of the date first above written, the Corporation has
caused this Agreement to be executed on its behalf by a duly authorized officer
and the Eligible Individual has hereunto set the Eligible Individual's hand.
Electronic acceptance of this Agreement pursuant to the Corporation's
instructions to the Eligible Individual (including through an online acceptance
process managed by the Agent) is acceptable.
EXPEDIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President,
General Counsel and Secretary
ELIGIBLE INDIVIDUAL
/s/ Xxxx Xxxxxxxxxxxx
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