Exhibit 10.40
AGREEMENT AND GENERAL
RELEASE
Travelport Limited (“Travelport”)
and Travelport Operations, Inc. (collectively, the
“Company”) and Michael Rescoe (hereinafter collectively
with his heirs, executors, administrators, successors and assigns,
“EXECUTIVE”), mutually desire to enter into this
Agreement and General Release (“Agreement” or
“Agreement and General Release”) and agree
that:
The terms of this Agreement are the
products of mutual negotiation and compromise between EXECUTIVE and
the Company; and
The meaning, effect and terms of
this Agreement have been fully explained to EXECUTIVE;
and
EXECUTIVE is hereby advised, in
writing, by the Company that he should consult with an attorney
prior to executing this Agreement; and
EXECUTIVE is being afforded
twenty-one (21) days from the date of this Agreement to consider
the meaning and effect of this Agreement; and
EXECUTIVE understands that he may
revoke the general release contained in paragraph 4 of this
Agreement (“the General Release”) for a period of seven
(7) calendar days following the day he executes this Agreement
and the General Release shall not become effective or enforceable
until the revocation period has expired, and no revocation has
occurred. Any revocation within this period must be
submitted, in writing, to Jo-Anne Kruse in the Company’s
Human Resources Department and state, “I hereby revoke my
acceptance of the General Release.” Said revocation
must be personally delivered to Jo-Anne Kruse in the
Company’s Human Resources Department, or mailed to Jo-Anne
Kruse in the Company’s Human Resources Department and
postmarked within seven (7) calendar days of execution of this
Agreement. In the event of a revocation of the General
Release, the remainder of this Agreement shall remain in full force
and effect; and
EXECUTIVE has carefully considered
other alternatives to executing this Agreement and General
Release.
THEREFORE, EXECUTIVE and the
Company, for the full and sufficient consideration set forth below,
agree as follows:
1.
(a) Pursuant to the letter agreement between Travelport
Limited and EXECUTIVE dated February 23, 2009 (“the
Letter Agreement”), EXECUTIVE’S Last Day of Employment
shall be October 1, 2009, and EXECUTIVE shall remain the
Company’s Chief Financial Officer with the full authority and
resources to fulfill his obligations as the Company’s Chief
Financial Officer, including executing certifications required by
the Company in connection with its public filings ( e.g.
with the United States Securities and Exchange Commission)
(“the Retained Responsibilities”), until that Last Day
of Employment. While EXECUTIVE’s rights and
obligations shall continue to be governed by the November 9,
2006 Employment Agreement between EXECUTIVE and Travelport Limited
(“the Employment Agreement”) through his Last Day of
Employment, EXECUTIVE acknowledges that the appointment of a new
Deputy Chief Financial Officer and the taking of reasonable steps
meant to ensure an orderly transition and not inconsistent with the
Retained Responsibilities shall not be a basis for Constructive
Termination under Section 7(c)(ii)(C) of the Employment
Agreement.
(b) EXECUTIVE shall continue
to participate in all Company benefit plans and programs (with the
exception of any equity, retention or other long-term incentive
plans or programs) in accordance with their terms through the Last
Day of Employment and shall be entitled to a bonus for the second
half of 2008 in the amount of $250,000.00, which bonus shall be
paid on or before March 15, 2009. Pursuant to paragraph
4 of the Employment Agreement, EXECUTIVE remains eligible for a
bonus for the First Half of 2009. Following his Last Day of
Employment, other than as set forth below or in the attached
Personal Statement of Termination Benefits, EXECUTIVE shall not be
eligible for any other payments from the Company; provided,
however, that if EXECUTIVE dies (other than as a result of suicide)
prior to October 1, 2009, EXECUTIVE shall be considered to
have been terminated without Cause (as defined in the Employment
Agreement) on the day immediately prior to EXECUTIVE’s date
of death and his surviving spouse or, in the event of her death,
EXECUTIVE’s estate, will receive the benefits set forth on
the attached Personal Statement of Termination Benefits, although
the Last Day of Employment shall be the day immediately prior to
EXECUTIVE’s date of death, and the payment of such benefits
is subject to the conditions set forth in the Personal Statement of
Termination Benefits.
2.
(a) In full satisfaction of the Company’s obligations
under Section 7(c)(iii) of the Employment Agreement, the
Company agrees to provide EXECUTIVE with the benefits set forth in
the attached Personal Statement of Termination Benefits under the
captions “Accrued Rights”, “Pro Rata Portion of
Second Half 2009 Bonus”, “Full Year 2009 Bonus”,
and “Severance Pay”. Such Severance Pay is
subject to EXECUTIVE’s continued compliance with the
provisions of Section 8 and 9 of the Employment Agreement, as
clarified by the attached Personal Statement of Termination
Benefits.
(b) The Company will also
provide EXECUTIVE with a neutral reference to any entity other than
the Released Parties. Upon inquiry to the Human Resources
department, prospective employers (other than the Released Parties)
will be advised only as to the dates of EXECUTIVE’s
employment and his most recent job title. Last salary will be
provided if EXECUTIVE has provided a written release for the
same.
3.
In consideration for the execution by EXECUTIVE of this Agreement
and compliance with the promises made in this Agreement, the
Company agrees to provide EXECUTIVE with the benefits set forth on
the attached Personal Statement of Termination Benefits under the
caption “Severance Benefits” (which shall be referred
to in this Agreement as “Severance Benefits”), subject
to the conditions set forth therein. EXECUTIVE understands and
agrees that he would not receive the Severance Benefits, except for
his execution of this Agreement and the Second Agreement (as
defined herein), and the fulfillment of the promises contained
herein, and that such consideration is greater than any amount to
which he would otherwise be entitled as an employee of the
Company.
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4.
Except as otherwise expressly provided by this Agreement or the
right to enforce the terms of this Agreement, EXECUTIVE, of his own
free will knowingly and voluntarily releases and forever discharges
the Company, their current and former parents, and their
shareholders, affiliates (including without limitation Orbitz
Worldwide, Inc. and its subsidiaries), subsidiaries,
divisions, predecessors, successors and assigns and the employees,
officers, directors, advisors and agents thereof (collectively
referred to throughout this Agreement as the “Released
Parties”, or a “Released Party”) from any and all
actions or causes of action, suits, claims, charges, complaints,
promises demands and contracts (whether oral or written, express or
implied from any source), or any nature whatsoever, known or
unknown, suspected or unsuspected, which against the Released
Parties EXECUTIVE or EXECUTIVE’s heirs, executors,
administrators, successors or assigns ever had, now have or
hereafter can shall or may have by reason of any matter, cause or
thing whatsoever arising any time prior to the time EXECUTIVE
executes this Agreement, including, but not limited to:
a.
any and all matters arising out of
EXECUTIVE’s employment by the Company or any of the Released
Parties and the termination of that employment, and that includes
but is not limited to any claims for salary, allegedly unpaid
wages, bonuses, commissions, retention pay, severance pay, vacation
pay, or any alleged violation of the National Labor Relations Act,
any claims for discrimination of any kind under the Age
Discrimination in Employment Act of 1967 as amended by the Older
Workers Benefit Protection Act, Title VII of the Civil Rights Act
of 1964, Sections 1981 through 1988 of Title 42 of the United
States Code, any claims under the Employee Retirement Income
Security Act of 1974 (except for benefits that are or become vested
on or prior to the Last Day of Employment, which are not affected
by this Agreement, including without limitation any benefits under
the 401(k) Plan and the Deferred Compensation Plan, as each of
such terms is defined in the attached Personal Statement of
Termination Benefits, which the Company acknowledges are fully
vested and which shall be paid in accordance with their respective
terms and EXECUTIVE’s applicable payment elections), the
Americans With Disabilities Act of 1990, the Fair Labor Standards
Act (to the extent such claims can be released), the Occupational
Safety and Health Act, the Consolidated Omnibus Budget
Reconciliation Act of 1985, the Federal Family and Medical Leave
Act (to the extent such claims can be released); and
b.
New Jersey Law Against
Discrimination; Civil Rights Act; Statutory Provision Regarding
Retaliation/Discrimination for Filing a Workers’ Compensation
Claim; Family Leave Act.; Smokers’ Rights Law; Equal Pay Act;
Genetic Privacy Act; Conscientious Employee Protection Act
(Whistleblower Protection); Wage Payment and Work Hour Laws; Public
Employees’ Occupational Safety and Health Act; Fair Credit
Reporting Act; laws
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regarding Political Activities of
Employees, Lie Detector Tests, Jury Duty, Employment Protection,
and Discrimination; and
c.
New York State Human Rights Law;
Rights of Persons With Disabilities; Confidentiality of Records of
Genetic Tests; Whistleblower; Statutory Provision Regarding
Retaliation/Discrimination for Filing a Workers’ Compensation
Claim; Adoptive Parents’ Child Care Leave Law; Smokers’
Rights Law; Equal Pay Law; AIDS Testing Confidentiality Act;
Nondiscrimination Against Genetic Disorders; Bone Marrow Leave Law;
Equal Rights Law; Confidentiality of Records of Genetic Tests;
State Labor Relations Act; Wage Hour and Wage Payment Laws; Minimum
Wage Law; and
d.
any other federal, state or local
civil or human rights law, or any other alleged violation of any
local, state or federal law, regulation or ordinance, and/or public
policy, implied or expressed contract, fraud, negligence, estoppel,
defamation, infliction of emotional distress or other tort or
common-law claim having any bearing whatsoever on the terms and
conditions and/or termination of his employment with the Company
including, but not limited to, any statutes or claims providing for
the award of costs, fees, or other expenses, including reasonable
attorneys’ fees, incurred in these matters.
Notwithstanding the foregoing release of claims
in this paragraph of this Agreement:
·
Nothing in the release of claims in
this paragraph shall impact EXECUTIVE’s equity granted or
purchased pursuant to the TDS Investor (Cayman) L.P. 2006 Interest
Plan, as amended and/or restated from time to time.
·
EXECUTIVE has a right to
indemnification and advancement from and by the Company, to the
extent in existence as of the date hereof pursuant to the
Company’s by-laws, and such right to indemnification and
advancement shall survive the termination of his employment in
accordance with such by-laws and applicable law.
·
The Company represents that it had
Directors & Officers (“D&O”) insurance
coverage, including “tail coverage”, during
EXECUTIVE’s employment with the Company, and while he served
as an officer for TDS Investor (Cayman) L.P and its subsidiaries,
EXECUTIVE was covered under such D&O coverage for the period he
served as an officer. EXECUTIVE shall continue to be entitled
to the benefits of
