Exhibit 10.2
RESTRICTED STOCK UNIT AWARD
AGREEMENT
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT
(“ Agreement ”) is made as of
,
20 by and between Orbitz
Worldwide, Inc., a Delaware corporation (“ Orbitz
”), and the employee whose name is set forth on the signature
page hereto (“ Employee ”).
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.
In
connection with Employee’s employment by Orbitz or one of its
subsidiaries (collectively, the “ Company ”),
Orbitz intends concurrently herewith to grant the RSUs (as defined
below) to Employee.
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 any Company by Employee of such failure;
provided that it is understood that this clause
(A) shall not apply if a 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.](1)
“ Company ” has the meaning
specified in the Recitals .
[“ 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”.](2)
“ Employee ” has the meaning
specified in the Preamble .
“ Grant Date ” means the
date hereof.
“ Orbitz ” has the meaning
specified in the Preamble .
“ Share ” means one share of
the common stock, par value $0.01 per share, of Orbitz.
SECTION 2
GRANT OF RESTRICTED STOCK
UNITS
Subject to the terms and conditions hereof,
Orbitz hereby grants to Employee, as of the Grant Date,
[ ]
restricted stock units (the “ RSUs ”).
Each RSU granted hereunder shall represent the right to receive
from the Company, on the terms and conditions described herein, in
the sole discretion of the Board, either (i) one Share as of
the date of vesting or (ii) cash equal to the fair market
value (as determined by the Board in good faith) of one Share as of
the date of vesting (and, as provided herein, distributions
thereon). Employee shall have no further rights
(1) Only include for SVP and
above.
(2) Only include for SVP and
above.
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with respect to any RSU that is paid in Shares
or cash, or that is forfeited or terminates pursuant to this
Agreement or the Plan.
SECTION 3
TERMS OF RESTRICTED STOCK
UNITS
3.1.
Vesting Schedule
.
(a)
Subject to the provisions of this Agreement and the Plan, 25% of
the RSUs shall vest on the first, second, third and fourth
anniversary of the Grant Date; provided , however ,
that no vesting shall occur after the termination of
Employee’s employment with the Company for any reason, and
any unvested RSUs shall be immediately cancelled by the Company
without consideration after termination of Employee’s
employment with the Company for any reason.
(b)
[Notwithstanding the foregoing, the RSUs shall become fully vested
immediately prior to a Change in Control.](3) [The RSUs shall
be treated in accordance with the provisions of Section 7 of
the Plan in the event of a Change in Control.](4)
(c)
[Notwithstanding the foregoing, upon any termination of
Employee’s employment with the Company by the Company without
Cause, the RSUs which would have become vested had the 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.](5)
(d)
The Board may determine at any time before the RSUs expire or
terminate that any or all of the RSUs shall become vested at any
time.
3.2.
Dividends . Employee
shall be entitled to be credited with dividend equivalents with
respect to the RSUs, calculated as follows: on each date that
a cash dividend is paid by the Company while the RSUs are
outstanding, Employee shall be credited with an additional number
of RSUs equal to the number of whole Shares (valued at fair market
value (as determined by the Board in good faith) on such date) that
could be purchased on such date with the aggregate dollar amount of
the cash dividend that would have been paid on the RSUs had the
RSUs been issued as Shares. The additional RSUs credited
under this Section shall be subject to the same terms and
conditions applicable to the RSUs originally awarded hereunder,
including, without limitation, for purposes of vesting and
forfeiture and crediting of additional dividend
equivalents.
(3) Full and automatic accelerated vesting
for SVP and above.
(4) Accelerated vesting at discretion of
Board for levels below SVP.
(5) One year forward vesting for SVP and
above.
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3.3.
Termination of Employment
. [Subject to Section 3.1(c)],(6) if
Employee’s employment with the Company terminates for any
reason, the RSUs, to the extent not then vested, shall be
immediately canceled by the Company without
consideration.
3.4.
Limited Transferability
. The RSUs may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of or encumbered, other than by
will or the laws of inheritance following Employee’s
death.
3.5.
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 4 below) during
Employee’s employment or following termination of
Employee’s employment, then:
(a)
the RSUs, to the extent not then vested, shall be immediately
canceled by the Company without consideration,
(b)
Employee shall repay to the Company any cash received pursuant to
the vesting of any RSU 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,
(c)
any Shares acquired pursuant to the vesting of any RSU 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 by
Employee shall be forfeited and returned to the Company without
consideration, and
(d)
in the event Employee has sold or otherwise disposed of Shares
acquired pursuant to the vesting of any RSU 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 date of Board determination of misconduct or
breach.
(6) Insert for SVP and above.
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SECTION 4
NON-COMPETITION AND
CONFIDENTIALITY
4.1.
Non-Competition
.
(a)
From the date hereof while employed by the Company and for a
one-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 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.
(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 4.2, 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 4.1(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 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 a Competitor, in any capacity (whether as an employee,
officer, director, partner, consultant, agent, advisor, or
otherwise), (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 after the end of the Restricted Period or (C) own or hold
a Proprietary Interest in, or directly furnish any capital to, any
Competitor of the Company. Employee acknowledges that the
Company’s and its affiliates businesses are conducted
nationally and internationally and agrees that the provisions in
the foregoing sentence shall operate throughout the United States
and the world (subject to the definition of
“Competitor”).
(c)
During the Restricted Period, Employee, without express prior
written approval from the Board, shall not solicit any of the then
current Clients of the Company or any of its affiliates or
potential Clients of the Company or any of its affiliates with
whom Employee has had dealings or learned confidential
information within the six (6) months prior to the
date Employee ceases to be employed by the Company for any existing
business 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 purposes of this
Section 4.1(c), the term “ Client ” means
suppliers and corporate clients including but not limited to
airlines, hotels and companies with corporate accounts
with
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the
Company, but shall not include individual “end-users”
or ultimate individual consumers of the Company’s
services.
(d)
During the Restricted Period, Employee shall not interfere with the
employees or affairs of the Company or any of its affiliates or
solicit or induce any person who is an employee of the Company or
any of its affiliates to terminate any relationship such person may
have with the Company or any of its affiliates, nor shall Employee
during such period directly or indirectly engage, employ or
compensate, or cause or permit any Person with which Employee may
be affiliated, to engage, employ or compensate, any employee of the
Company or any of its affiliates.
(e)
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.
(f)
From the date hereof while employed by the Company and thereafter,
Employee shall not make any disparaging or defamatory comments
regarding the Company or, after termination of his or her
employment relationship with the Company, make any comments
concerning any aspect of the termination of their
relationship. The obligations of Employee under this
paragraph shall not apply to disclosures required by applicable
law, regulation or order of any court or governmental
agency.
(g)
From the date hereof while employed by the Company and thereafter,
upon the Company’s reasonable re
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