EXHIBIT 10.1
AGREEMENT AND GENERAL
RELEASE
Orbitz
Worldwide, Inc. (“Orbitz Worldwide”) and Orbitz,
L.L.C. (collectively with their subsidiaries, the
“Company”) and Randy Wagner (hereinafter collectively
with her heirs, executors, administrators, successors and assigns,
“EXECUTIVE”), mutually desire to enter into this
Agreement and General Release (“Agreement” or
“Agreement and General Release”) and agree
that:
The terms of this
Agreement are the products of mutual negotiation and compromise
between EXECUTIVE and the Company; and
The meaning, effect and
terms of this Agreement have been fully explained to EXECUTIVE;
and
EXECUTIVE is hereby
advised, in writing, by the Company that she should consult with an
attorney prior to executing this Agreement; and
EXECUTIVE is being
afforded at twenty-one (21) days from her Last Day of Employment to
consider the meaning and effect of this Agreement; and EXECUTIVE
may execute this Agreement after the Last Day of Employment
but may not execute it more than twenty-one (21) days
after the Last Day of Employment; and
EXECUTIVE understands and
acknowledges that, if she executes this Agreement before the Last
Day of Employment, it shall be null and void and of no effect;
and
EXECUTIVE understands
that she may revoke this Agreement for a period of seven
(7) calendar days following the day she executes this
Agreement and this Agreement shall not become effective or
enforceable until the revocation period has expired, and no
revocation has occurred (“the Effective Date”).
Any revocation within this period must be submitted, in
writing, to the Company’s Human Resources Department and
state, “I hereby revoke my acceptance of your Agreement and
General Release.” Said revocation must be personally
delivered to the Company’s Human Resources Department, or
mailed to the Company’s Human Resources Department and
postmarked within seven (7) calendar days of execution of this
Agreement; and
EXECUTIVE has carefully
considered other alternatives to executing this Agreement and
General Release.
THEREFORE, EXECUTIVE and
the Company, for the full and sufficient consideration set forth
below, agree as follows:
1.
EXECUTIVE’s employment with the Company is terminated without
Cause (as defined in the Letter Agreement) as of February 15,
2008, which shall be her Last Date of Employment. EXECUTIVE
shall receive all wages earned through her Last Date of Employment,
less applicable taxes, withholding and other lawful
deductions. Other than as set forth below, EXECUTIVE shall
not be eligible for any other payments from the Company.
2.
In consideration for the execution by EXECUTIVE of this Agreement
and compliance with the promises made in this Agreement, pursuant
to the letter agreement between EXECUTIVE and the Company
(“the Letter Agreement”) that EXECUTIVE signed on
August 5, 2007, the Company agrees:
a.
to pay EXECUTIVE consideration
in a lump sum amount of three hundred twenty-five thousand dollars
and no cents ($325,000.00), subject to applicable taxes,
withholding and deductions. This amount represents one
(1) year of EXECUTIVE’s current base annual salary and
is paid pursuant to the first bullet on page two of the Letter
Agreement.
b.
to pay EXECUTIVE consideration
in a lump sum amount of two hundred forty-three thousand seven
hundred fifty dollars and no cents ($243,750.00), subject to
applicable taxes, withholding and deductions. This amount
represents an amount equal to EXECUTIVE’s current annual
target bonus and is paid pursuant to the second bullet on
page two of the Letter Agreement.
c.
to pay EXECUTIVE consideration
in a lump sum amount of thirty thousand six hundred thirty-nine
dollars and thirty-eight cents ($30,639.38), subject to applicable
taxes, withholding and deductions. This amount represents an
amount equal to EXECUTIVE’s prorated target bonus for the
portion of 2008 she was employed by the Company and is paid
pursuant to the third bullet on page two of the Letter
Agreement.
d.
to pay EXECUTIVE additional
consideration in a lump sum amount of fifty-six thousand eight
hundred and seventy dollars and 81 cents ($56,870.81), subject to
applicable taxes, withholding and deductions.
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e.
to continue EXECUTIVE’s health plan coverage through the end
of the month in which her last date of employment occurs.
Thereafter, EXECUTIVE will be eligible to continue health plan
coverage pursuant to the terms of the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”). If EXECUTIVE elects
to continue health plan coverage pursuant to COBRA, the Company
will subsidize her COBRA payments for the first twelve (12) months
so that EXECUTIVE will pay the same monthly premiums as active
employees for the same coverage; provided, however, that if
EXECUTIVE is eligible for another group health plan coverage prior
to the end of this period, the Company shall not be responsible for
any further payments; provided, further, however, that the Company
may, in its sole discretion, provide EXECUTIVE with a lump
sum payment in lieu of providing a COBRA subsidy. This
subsidy is paid pursuant to the fourth bullet on page two of
the Letter Agreement. Thereafter, EXECUTIVE will be
responsible for the full payment of any COBRA premiums through the
remainder of her eligibility.
f.
to provide EXECUTIVE with
outplacement benefits pursuant to Company policy.
This benefit is provided pursuant to the fifth bullet on
page two of the Letter Agreement.
g.
to provide EXECUTIVE with vesting of any equity-based awards held
by EXECUTIVE with respect to Orbitz Worldwide, Inc. as, and to
the extent, described in the definitive documentation related to
such awards. As set forth in such definitive documentation
executed by EXECUTIVE, the stock options, restricted stock units
and restricted stock granted to EXECUTIVE pursuant to the Orbitz
Worldwide, Inc. 2007 Equity and Incentive Plan that are
unvested as of her Last Day of Employment and that would have
become vested had EXECUTIVE remained employed by the Company
through one year from the Last Day of Employment shall become
immediately vested as of the Last Day of Employment.
h.
to provide EXECUTIVE with a neutral reference to any entity other
than the Released Parties. Upon inquiry to the Human
Resources department, prospective employers (other than the
Released Parties) will be advised only as to the dates of
EXECUTIVE’s employment and her most recent job title.
Last salary will be provided if EXECUTIVE has provided a written
release for the same.
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The
payments herein will be made as soon as reasonably practicable once
this Agreement has taken effect, but in no case more than sixty
(60) days after EXECUTIVE’s Last Date of
Employment. This Agreement is intended to comply with
the requirements of Section 409A of the Internal Revenue Code
(“ Section 409A ”) and regulations
promulgated thereunder. To the extent that any provision in
this agreement is ambiguous as to its compliance with
Section 409A, the provision shall be read in such a manner so
that all payments under this agreement shall not incur an
“additional tax” within the meaning of
Section 409A(a)(1)(B) of the Code.
3.
EXECUTIVE is obligated to pay any local, state or federal taxes
that may become due and owing on the payments and benefits provided
under this Agreement and in this regard agrees to hold the Company,
their current and former parents, and their shareholders,
affiliates, subsidiaries, divisions, predecessors, successors and
assigns and the employees, officers, directors, advisors and agents
thereof (collectively referred to throughout this Agreement as the
“Released Parties”, or a “Released Party”)
harmless for any taxes, interest or penalties deemed by the
government as due thereon from the Company or from her.
4.
EXECUTIVE understands and agrees that she would not receive the
monies and/or benefits specified in paragraph 2 above, except for
her execution of this Agreement, and the fulfillment of the
promises contained herein, and that such consideration is greater
than any amount to which she would otherwise be entitled as an
employee of the Company.
5.
Except as otherwise expressly provided by this Agreement or the
right to enforce the terms of this Agreement, EXECUTIVE, of her own
free will knowingly and voluntarily releases and forever discharges
the Released Parties, of and from any and all actions or causes of
action, suits, claims, charges, complaints, promises demands and
contracts (whether oral or written, express or implied from any
source), or any nature whatsoever, known or unknown, suspected or
unsuspected, which against the Released Parties EXECUTIVE or
EXECUTIVE’S heirs, executors, administrators, successors or
assigns ever had, now have or hereafter can shall or may have by
reason of any matter, cause or thing whatsoever arising any time
prior to the time EXECUTIVE executes this Agreement, including, but
not limited to:
a.
any and all matters
arising out of EXECUTIVE’s employment by the Company or any
of the Released Parties and the termination of that employment, and
that includes but is not limited to any claims for salary,
allegedly unpaid wages, bonuses, commissions, retention pay,
severance pay, vacation pay, or any alleged violation of the
National Labor Relations Act, any claims for discrimination of any
kind under the Age Discrimination in Employment Act of 1967 as
amended by the Older Workers Benefit Protection Act, Title VII of
the Civil Rights Act of 1964, Sections 1981 through 1988 of Title
42 of the United States Code, any claims under the Employee
Retirement Income Security Act of 1974 (except for vested benefits
which are not affected by this Agreement), the Americans With
Disabilities Act of 1990, the Fair Labor Standards Act (to the
extent such claims can be released), the Occupational Safety and
Health Act, the Consolidated Omnibus Budget Reconciliation Act of
1985,
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the
Federal Family and Medical Leave Act (to the extent such claims can
be released);
b.
Illinois Human Rights Act;
Minimum Wage Law; Equal Wage Act; Equal Pay Act of 2003; Wages for
Women and Minors Act; Religious Freedom Restoration Act Statutory
Provision Regarding Retaliation/Discrimination for Filing a
Worker’s Compensation Claim; Equal Pay Laws; School
Visitation Rights Act; AIDS Confidentiality Act; Right to Privacy
Law; Genetic Information Privacy Act; the Cook County Human Rights
Ordinance; the Chicago Human Rights Ordinance, as amended;
and
c.
any
other federal, state or local civil or human rights law, or any
other alleged violation of any local, state or federal law,
regulation or ordinance, and/or public policy, implied or expressed
contract, fraud, negligence, estoppel, defamation, infliction of
emotional distress or other tort or common-law claim having any
bearing whatsoever on the terms and conditions and/or termination
of her employment with the Company including, but not limited to,
any statutes or claims providing for the award of costs, fees, or
other expenses, including reasonable attorneys’ fees,
incurred in these matters.
Nothing in the general
release of claims in this paragraph 5 shall affect any vested
equity granted to EXECUTIVE under the Orbitz Worldwide, Inc.
2007 Equity and Incentive Plan (“the Orbitz Plan”) and
any vested equity granted to EXECUTIVE under the TDS Investor
(Cayman) L.P. 2006 Interest Plan (“the Travelport
Plan”), as amended and/or restated from time to time, and the
award agreements issued under the Orbitz Plan and the Travelport
Plan.
6.
EXECUTIVE also acknowledges that she does not have any current
charge, claim or lawsuit against one or more of the Released
Parties pending before any local, state or federal agency or court
regarding her employment and her separation from employment.
EXECUTIVE understands that nothing in this release prevents her
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