EXHIBIT 10.13
RESTRICTED STOCK AWARD
AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (“
Agreement ”) is made as of July 18, 2007 by and
between Orbitz Worldwide, Inc., a Delaware corporation (“
Orbitz ”), the employee whose name is set forth on the
signature page hereto (“ Employee ”) and, with
respect to Section 2 only, TDS Investor (Cayman) L.P., a Cayman
Islands limited partnership (“ TDS
”).
RECITALS
Orbitz has adopted the Orbitz Worldwide, Inc.
2007 Equity and Incentive Plan (the “ Plan ”), a
copy of which is attached hereto as Exhibit A.
Orbitz was a wholly owned direct or indirect
subsidiary of TDS prior to an initial public offering (the “
Offering ”) of Shares (as defined below).
Prior to the Offering, TDS granted a
combination of Class B, Class B-1, Class C and/or Class D Interests
(the “ TDS Equity Interests ”) to Employee
pursuant to that certain Management Equity Award Agreement dated as
of [DATE] (the “ TDS Award Agreement ”). As a
result of the Offering, in accordance with Section 6(c) of the TDS
Investor (Cayman) L.P. Second Amended and Restated 2006 Interest
Plan and in connection with Employee’s employment by Orbitz
or one of its subsidiaries (collectively, the “
Company ”), TDS, Orbitz and Employee desire to adjust,
exchange and/or replace the TDS Equity Interests in exchange for
the grant of Restricted Stock (as defined below) hereunder and, if
applicable, selected other grants made on or about the date
hereof.
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 . Capitalized
terms not otherwise defined herein shall have the meanings ascribed
to them in the Plan. In addition to the terms defined in the Plan,
the terms below shall have the following respective
meanings:
“ Agreement ” has the
meaning specified in the Preamble .
“ Board ” means the board of
directors of Orbitz (or, if applicable, any committee of the
Board).
“ Cause ” shall have the
meaning assigned such term in any employment agreement entered into
between the Company and Employee, provided that if no such
employment
agreement exists or such term is not defined,
then “ Cause ” shall mean (A) Employee’s
failure substantially to perform Employee’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 the Company by Employee of such failure;
provided that it is understood that this clause (A) shall
not apply if the Company terminates Employee’s employment
because of dissatisfaction with actions taken by Employee in the
good faith performance of Employee’s duties to the Company,
(B) theft or embezzlement of property of the Company or dishonesty
in the performance of Employee’s duties to the Company, (C)
an act or acts on Employee’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) Employee’s willful
malfeasance or willful misconduct in connection with
Employee’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) Employee’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 the Company and Employee, provided
that if no such employment agreement exists or such term is not
defined, then “Constructive Termination” shall mean (A)
any material reduction in Employee’s base salary or target
bonus (excluding any change in value of equity incentives or a
reduction affecting substantially all similarly situated
executives); (B) the failure of the Company 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
Employee describing the event constituting a Constructive
Termination; (C) the primary business office of the Company being
relocated by more than 50 miles; or (D) a material and sustained
diminution in Employee’s duties and responsibilities as of
the date of the Offering.](1)
“ Disability ” shall have
the meaning assigned such term in any employment agreement entered
into between the Company and Employee, provided that if no
such employment agreement exists or such term is not defined, then
“ Disability ” shall mean Employee 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 Employee’s duties under Employee’s employment.
Any question as to the existence of the Disability of Employee as
to which Employee and the Company cannot agree shall be determined
in writing by a qualified independent physician mutually acceptable
to Employee and the Company. If Employee and the Company 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 Company and Employee shall be
final and conclusive for all purposes of this Agreement and any
other agreement between the Company and Employee that incorporates
the definition of “Disability”.
(1)
Only include for CEO.
2
“ Employee ” has the meaning
specified in the Preamble .
“ Grant Date ” means the
date hereof.
“ Offering ” has the meaning
specified in the Recitals .
“ Orbitz ” has the
meaning specified in the Preamble .
“ Restricted Stock ”
has the meaning specified in Section 3.1 below.
“ Share ” means one share of
the common stock, par value $0.01 per share, of Orbitz.
“ TDS ” has the meaning
specified in the Preamble .
“ TDS Equity Interests ” has
the meaning specified in the Recitals .
SECTION 2
TDS EQUITY
2.1.
TDS Equity . Employee and
TDS agree that, immediately concurrent with the grant of the
Restricted Stock (as defined below) contemplated hereunder, all TDS
Equity Interests, whether vested or unvested, shall be extinguished
without further payment and shall be of no further force or effect.
For the avoidance of doubt, if Employee owns any Class A-2
Interests in TDS or holds any Restricted Equity Units in TDS, those
Class A-2 Interests and Restricted Equity Units shall not be
modified in any respect under this Agreement.
SECTION 3
GRANT OF RESTRICTED
STOCK
3.1.
Grant of Restricted Stock .
Subject to the terms and conditions hereof, Orbitz hereby grants to
Employee, as of the Grant Date,
[ ]
shares of restricted stock (the “ Restricted Stock
”). Each share of Restricted Stock granted hereunder shall be
a Share which is restricted as to transfer, as provided in this
Agreement. Employee shall have no further rights with respect to
any share of Restricted Stock that becomes a vested Share or that
is forfeited or terminates pursuant to this Agreement or the
Plan.
SECTION 4
TERMS OF RESTRICTED
STOCK
4.1.
Vesting Schedule
.
(a)
Subject to the provisions of this Agreement and the Plan, the
Restricted Stock shall vest 5.555% on August 25, 2007, shall vest
an additional 8.586% on each subsequent November 25, February 25,
May 25 and August 25 through February 25, 2010, and shall become
fully vested on May 25, 2010 (if not earlier) (each, a “
Scheduled Vesting Date ”), provided
,
3
however , that no vesting shall
occur after the termination of Employee’s employment with the
Company for any reason, and any unvested Restricted Stock shall be
immediately forfeited without consideration after termination of
Employee’s employment with the Company for any reason.
(b)
Notwithstanding any other provision of this Agreement, the
Restricted Stock shall become fully vested immediately prior to a
Change in Control.
(c)
Notwithstanding any other provision of this Agreement, upon any
termination of Employee’s employment with the Company by the
Company without Cause, the shares of Restricted Stock that would
have become vested had Employee remained employed by the Company
through one year from the date of such termination shall become
immediately vested as of the date of such termination.
(d)
[Notwithstanding any other provision of this Agreement, upon any
termination of Employee’s employment with the Company (A) as
a result of death or Disability or (B) by Employee as a result of a
Constructive Termination, the shares of Restricted Stock which
would have become vested on:
(i)
the next four Scheduled Vesting Dates shall become immediately
vested as of the date of such termination if such termination
occurs between August 26 and November 25 (inclusive);
(ii)
the next three Scheduled Vesting Dates shall become immediately
vested as of the date of such termination if such termination
occurs between November 26 and February 25 (inclusive);
(iii)
the next two Scheduled Vesting Dates shall become immediately
vested as of the date of such termination if such termination
occurs between February 26 and May 25 (inclusive); and
(iv)
the next Scheduled Vesting Date shall become immediately vested as
of the date of such termination if such termination occurs between
May 26 and August 25 (inclusive).](2)
(e)
The Board may determine at any time before the Restricted Stock
expires or terminates that any or all of the shares of Restricted
Stock shall become vested at any time.
4.2.
Dividends . Employee shall
be entitled to receive dividends which become payable on the
Restricted Stock at the time such dividends are paid to other
holders of Shares.
(2) One year forward
vesting for CEO in the case of involuntary termination, death or
disability or constructive termination.
4
4.3.
Termination of Employment .
Subject to Sections 4.1(b), (c) [and (d)](3), if Employee’s
employment with the Company terminates for any reason, the
Restricted Stock, to the extent not then vested, shall be
immediately forfeited without consideration. Restricted Stock so
forfeited shall be transferred to, and reacquired by, the Company
without payment of any consideration by the Company, and neither
Employee nor any of Employee’s successors or assigns shall
thereafter have any further rights or interests in such shares or
certificates. If certificates containing restrictive legends shall
have theretofore been delivered to Employee, such certificates
shall be returned to the Company, complete with any necessary
signatures or instruments of transfer.
4.4.
Limited Transferability .
The Restricted Stock may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of prior to vesting.
The Board may in its discretion, cancel all or any portion of any
outstanding restrictions prior to vesting.
4.5.
Certificate; Restrictive
Legend . Employee agrees that any certificate issued for
shares of the Restricted Stock prior to the vesting thereof shall
be inscribed with the following legend:
This certificate and the shares of stock
represented hereby are subject to the terms and conditions,
including forfeiture provisions and restrictions against transfer
(the “Restrictions”), contained in the Orbitz
Worldwide, Inc. 2007 Equity and Incentive Plan and an agreement
entered into between the registered owner and Orbitz Worldwide,
Inc. Any attempt to dispose of these shares in contravention of the
Restrictions, including by way of sale, assignment, transfer,
pledge, hypothecation or otherwise, shall be null and void and
without effect.
Upon each vesting
of shares of the Restricted Stock, the Company shall issue to
Employee a stock certificate representing a number of Shares, free
of the restrictive legend described above, equal to the number of
shares subject to this Restricted Stock award which have vested. If
certificates representing such Restricted Stock shall have
theretofore been delivered to Employee, such certificates shall be
returned to the Company, complete with any necessary signatures or
instruments of transfer prior to the issuance by the Company of
such unlegended Shares.
4.6.
Forfeiture . Notwithstanding anything
herein to the contrary, if the Board determines in good faith that
Employee has (i) willfully engaged in misconduct which is
materially and demonstrably injurious to the Company; (ii)
willfully and knowingly participated in the preparation or release
of false or materially misleading financial statements relating to
the Company’s operations and financial condition; (iii)
committed a willful act of fraud, embezzlement or misappropriation
of any money or properties of the Company or breach of fiduciary
duty against the Company that has a material adverse effect on the
Company; or (iv) breached any noncompetition or confidentiality
covenants for the benefit of the Company applicable to Employee
(including, without limitation, the covenants set forth in Section
5
(3) Include for CEO
only.
5
below) during
Employee’s employment or following termination of
Employee’s employment, then:
(a)
the Restricted Stock, to the extent not then vested, shall be
immediately forfeited without consideration,
(b)
any Restricted Stock which vested within five (5) years prior to
the date of Board determination of (i), (ii), or (iii) above or
within three (3) years prior to the date of Board determination of
(iv) above and then held as Shares by Employee shall be forfeited
and returned to the Company without consideration, and
(c)
in the event Employee has sold or otherwise disposed of Shares
issued upon the vesting of any Restricted Stock within five (5)
years prior to the date of Board determination of (i), (ii), or
(iii) above or within three (3) years prior to the date of Board
determination of (iv) above, Employee shall pay to the Company the
greater of (x) any proceeds received from such sale or other
disposition, or (y) the fair market value (as determined by the
Board in good faith) of such Shares as of the time of Board
determination of misconduct or breach.
SECTION 5
NON-COMPETITION AND
CONFIDENTIALITY
5.1.
Non-Competition
.
(a)
From the date hereof while employed by the Company and for a
[two][one](4)-year period following the date Employee ceases to be
employed by the Company (the “ Restricted Period
”), irrespective of the cause, manner or time of any
termination, Employee shall not use his or her status with the
Company or any of its affiliates to obtain loans, goods or services
from another organization on terms that would not be available to
him or her in the absence of his or her relationship to the Company
or any of its affiliates.
(b)
During the Restricted Period, Employee 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 Employee; provided ,
however , that, subject to Section 5.2, nothing herein shall
preclude the Company and its affiliates or Employee 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
Employee’s employment or the circumstances for such a
termination. For purposes of this Section 5.1(b), the term “
Competitor ” means any enterprise or business that is
engaged in, or has plans to engage in, at any time during the
Restricted Period, any activity that competes with the
businesses
(4)Two years for CEO;
one year for SVPs.
6
conducted during or at the termination of
Employee’s employment, or then proposed to be conducted, 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 (in each case, within
100 miles of any geographical area where the Company or its
affiliates manufactures, produces, sells, leases, rents, licenses
or otherwise provides its products or services). During the
Restricted Period, Employee, 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
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