RESTRICTED STOCK UNIT AWARD
AGREEMENT
THIS RESTRICTED
STOCK UNIT AWARD AGREEMENT (“ Agreement ”) is
made as of ___, 20___ (the “ Grant Date ”) by
and between Orbitz Worldwide, Inc., a Delaware corporation (“
Orbitz ”), and the employee whose name is set forth on
the signature page hereto (“ Employee
”).
Orbitz has adopted
the Orbitz Worldwide, Inc. 2007 Equity and Incentive Plan (as may
be amended from time to time, 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:
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
the employment agreement entered into between Orbitz and Employee,
dated January 6, 2009 (the “ Employment Agreement
”).
“ Code
Section 409A ” means Section 409A of the
Internal Revenue Code of 1986, as amended, and the rules,
regulations and guidance promulgated thereunder.
“
Company ” has the meaning specified in the
Recitals .
“
Constructive Termination ” shall have the meaning set
forth in the Employment Agreement.
“
Disability ” shall have the meaning assigned such term
in the Employment Agreement.
“
Employee ” has the meaning specified in the
Preamble .
“ Grant
Date ” has the meaning specified in the Preamble
.
“
Orbitz ” has the meaning specified in the
Preamble .
“
Plan ” has the meaning specified in the
Recitals .
“
Reacquisition ” shall mean a reacquisition of the
Company, directly or indirectly, by Travelport Limited.
“
Share ” means one share of the common stock, par value
$0.01 per share, of Orbitz.
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 defined in the Plan) of one
Share as of the date of vesting (and, as provided herein,
distributions thereon). Employee shall have no further rights 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.
TERMS OF RESTRICTED STOCK
UNITS
(a) Subject
to the provisions of this Agreement and the Plan and
Employee’s continued employment with the Company on the
applicable vesting dates, 25% of the RSUs (rounded up to the next
whole share) shall vest on the first, second, third and fourth
anniversaries of the Grant Date (the “Normal Vesting
Dates”); provided , however , that, except as
provided in Section 3 below, no vesting shall occur in
connection with or after the termination of Employee’s
employment with the Company for any reason, and any unvested RSUs
shall be immediately canceled by the Company without consideration
after termination of Employee’s employment with the Company
for any reason.
Subject
to Section 5.2, settlement of vested RSUs (after giving effect
to the accelerated vesting provisions below in Section 3)
shall occur on the applicable Normal Vesting Date or, if the
Employee’s “separation from service” within the
meaning of Code Section 409A described in Section 3.1 below
occurs earlier than an applicable Normal Vesting Date, on the 90th
calendar day following such separation.
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(b) Notwithstanding
any other provision of this Agreement, in the event
Employee’s employment with the Company is terminated without
Cause, or Employee resigns from the Company as a result of a
Constructive Termination, and such termination or resignation is in
connection with, or within twenty-four (24) months following a
Change in Control or Employee’s employment is terminated by
the Company without Cause or if Employee resigns as a result of a
Constructive Termination and a Change in Control is consummated
within ninety (90) days following such termination of
employment or resignation and such termination of employment or
resignation as a result of a Constructive Termination is in
contemplation of a Change in Control, then, subject to
Employee’s execution and delivery of a separation and release
agreement that is no longer subject to revocation under applicable
law, substantially in the form attached hereto as
Exhibit B (the “ General Release ”)
and compliance with all terms and conditions contained herein, then
the RSUs shall fully vest as of the date of such termination or
resignation and, subject to Section 5.2, shall be settled on
the 90th calendar day following the Employee’s
“separation from service” within the meaning of Code
Section 409A.
(c) Notwithstanding
the foregoing, in the event Employee’s employment is
terminated by the Company without Cause or for Disability,
terminates as a result of Employee’s death, or if Employee
resigns as a result of a Constructive Termination, subject to,
except in the case of death or Disability, Employee’s
execution and delivery of the General Release, a number of
previously unvested RSUs shall vest equal to the number of RSUs
that would have vested in the eighteen (18)-month period following
such termination if Employee had remained in employment and,
subject to Section 5.2, such vested RSUs shall be settled on
the 90th calendar day following the Employee’s
“separation from service” within the meaning of Code
Section 409A.
(d) In
the event Employee resigns his employment pursuant to Section 9(e)
of the Employment Agreement following the Reacquisition, then,
subject to Employee’s execution and delivery of the General
Release, a number of previously unvested RSUs shall vest equal to
the number of RSUs that would have vested in the twelve (12)-month
period following such termination if Employee had remained in
employment and, subject to Section 5.2, such vested RSUs shall
be settled on the 90th calendar day following the Employee’s
“separation from service” within the meaning of Code
Section 409A.
(e) Notwithstanding
the foregoing, if Executive’s employment is terminated by the
Company without Cause, or if Executive resigns as a result of a
Constructive Termination (other than the diminution of duties or
responsibilities directly resulting from the Reacquisition and the
Company becoming a non-publicly traded subsidiary of Travelport
Limited), and such termination or resignation is in connection
with, or within twelve (12) months following the Reacquisition
or Executive’s employment is terminated by the Company
without Cause or if Executive resigns as a result of a Constructive
Termination and the Reacquisition occurs within ninety
(90) days following such termination of employment or
resignation and such termination of employment or resignation is in
contemplation of the Reacquisition, then, subject to
Executive’s execution and delivery of the General Release and
compliance with all terms and conditions contained herein, then the
RSUs shall fully vest as of the date of such termination or
resignation and, subject to Section 5.2, shall be settled on
the 90th calendar day following the Employee’s
“separation from service” within the meaning of Code
Section 409A.
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(f) The
Board may determine at any time before the RSUs terminate that the
RSUs or any portion thereof shall vest at any time. In the event of
such accelerated vesting, such vested RSUs shall be settled on the
Normal Vesting Dates (as if vesting had not been accelerated) or,
if the Employee’s “separation from service”
within the meaning of Code Section 409A occurs earlier than an
applicable Normal Vesting Date, on the 90th calendar day following
such separation.
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 Orbitz 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, settlement
and forfeiture and crediting of additional dividend
equivalents.
3.3.
Termination of Employment . Subject to
Section 3.1, 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 shall be neither transferable
nor assignable by Employee other than by will or the laws of
inheritance following Employee’s death; provided ,
however , that Employee may designate one or more persons as
the beneficiary or beneficiaries of the RSUs, in which case the
RSUs shall, in accordance with such designation, automatically be
transferred to such beneficiary or beneficiaries upon
Employee’s death while holding the RSUs. Such beneficiary or
beneficiaries shall take the transferred RSUs subject to all the
terms and conditions of this Agreement.
3.5.
Forfeiture. Notwithstanding anything herein to the
contrary, in the event (X) Employee is terminated for Cause
pursuant to Section 9(a) of the Employment Agreement and such
termination for Cause is based on Employee’s willful
misconduct involving a financial matter of the Company, including,
without limitation, Employee purposefully or knowingly making a
false certification to the Company pertaining to its financial
statements, (Y) of Employee’s material breach of the
restrictive covenants set forth in Sections 10 or 11 of the
Employment Agreement or (Z) of Employee’s material
violation of the Company’s Code of Conduct or Code of Ethics,
the Board may determine in good faith that:
(i) the
RSUs, to the extent not then vested, shall be immediately canceled
by Orbitz without consideration,
(ii) Employee
shall repay to Orbitz any cash received pursuant to the vesting of
any RSU within two (2) years prior to (x) such
termination of employment for Cause or (y) such breach, as
applicable,
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(iii) any
Shares acquired pursuant to the vesting of any RSU within two
(2) years prior to the date of Board determination of (X),
(Y), or (Z) above and then held by Employee shall be forfeited
and returned to Orbitz without consideration, and
(iv) in
the event Employee has sold or otherwise disposed of Shares
acquired pursuant to the vesting of any RSU within two
(2) years prior to the date of Board determination of (X),
(Y), or (Z) above, Employee shall pay to Orbitz 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 such Board
determination.
Notwithstanding
the foregoing, in the event Employee is terminated for Cause
pursuant to Section 9(a) of the Employment Agreement and such
termination for Cause is based on conduct other than
Employee’s willful misconduct involving a financial matter of
the Company, the Board may determine in good faith that the
provisions of Section 3.5(i) through (iv) shall apply to
the extent necessary for the Company to recover any damages it
incurs as a result of such conduct.
Employee hereby
agrees and covenants to perform all of his obligations set forth in
Sections 10 and 11 of the Employment Agreement (which are
incorporated by reference hereby) and acknowledges that
Employee’s obligations set forth in Sections 10 and 11
of the Employment Agreement constitute a material inducement for
the Company’s grant of the RSUs to Employee. The provisions
of this Section 4 shall survive the termination of
Employee’s employment with the Company for any
reason.
5.1. Tax
Issues and Withholding . Employee acknowledges that he or
she is relying solely on his or her own tax advisors and not on any
statements or representations of the Company or any of its agents.
Employee understands that he or she (and not Orbitz) shall be
responsible for all tax liability that shall arise as a result of
the settlement of RSUs contemplated by this Agreement.
Orbitz’s obligations under this Agreement shall be subject to
all applicable tax and other withholding requirements, and Orbitz
shall, to the extent permitted by law, have the right to deduct any
withholding amounts from any payment or transfer of any kind
otherwise due to Employee (including by withholding
shares).
5.2.
Compliance with IRC Section 409A .
(a) The
intent of the parties is that payments under this Agreement comply
with or be exempt from Code Section 409A and, accordingly, to
the maximum extent permitted, this Agreement shall be interpreted
to be in compliance therewith.
(b) If
Employee notifies the Company (with specificity as to the reason
therefor) that Employee believes that any provision of this
Agreement would cause Employee to incur any additional tax or
interest under Code Section 409A and the Company concurs
with
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such belief or
the Company (without any obligation whatsoever to do so)
independently makes such determination, the Company shall, after
consulting with Employee, reform such provision to try to comply
with Code Section 409A through good faith modifications to the
minimum extent reasonably appropriate to conform with Code
Section 409A. To the extent that any provision hereof is
modified in order to comply with or be exempt from Code
Section 409A, such modification shall be made in good faith
and shall, to the maximum extent reasonably possible, maintain the
original intent and economic benefit to Employee and the Company of
the applicable provision without violating the provisions of Code
Section 409A.
(c) Notwithstanding
anything herein to the contrary, if at the time of Employee’s
separation from service (within the meaning of Code
Section 409A) Employee is a “specified employee”
as defined in Code Section 409A and the deferral of the
commencement of any payments otherwise payable hereunder as a
result of such separation is necessary under Code
Section 409A(a)(2)(B)(i) in order to prevent any accelerated
or additional tax under Code Section 409A, then the Company
will defer the commencement of the payment of any such payments
hereunder (without any reduction in such payments ultimately paid
or provided to Employee) until the date that is six (6) months
following Employee’s separation from service (or the earliest
date as is permitted under Code Section 409A) (the “
Delay Period ”). Upon the expiration of the Delay
Period, all payments delayed pursuant to this Section 5.2
(whether they would have otherwise been payable in a single lump
sum or in installments in the absence of such delay) shall be paid
or reimbursed to Employee in a lump sum on the first business day
after the end of the Delay Period, and any remaining payments due
under this Agreement shall be paid or provided in accordance with
the normal payment dates specified for them herein.
(d) A
termination of employment shall not be deemed to have occurred for
purposes of any provision of this Agreement providing for the
payment of any amounts or benefits upon or following a termination
of employment unless such termination is also a “separation
from service” within the meaning of Code Section 409A
and, for purposes of any such provision of this Agreement,
references to a “termination,” “termination of
employment” or like terms shall mean “separation from
service.”
5.3.
Employment of Employee . Nothing in this Agreement
confers upon Employee the right to continue in the employ of the
Company, entitles Employee to any right or benefit not set forth in
this Agreement or interferes with or limits in any way the right of
the Company to terminate Employee’s employment.
5.4.
Stockholder Rights . Employee shall not have any
stockholder rights (including the right to distributions or
dividends) with respect to the Shares subject to the RSUs until
Employee has become a holder of record of the Shares issued upon
vesting; provided that Employee may be entitled to the
benefits set forth in Section 3.2 of this
Agreement.
5.5.
Equitable Adjustments . The RSUs shall be subject to
adjustment as provided in Section 5 of the Plan.
5.6.
Calculation of Benefits . Neither the RSUs nor any
Shares issued pursuant to the vesting of the RSUs shall be deemed
compensation or taken into account for purposes of determining
benefits or contributions under any retirement or other qualified
or nonqualified
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plans of the
Company or any employment/severance or change in control agreement
to which Employee is a party and shall not affect any benefits, or
contributions to benefits, under any other benefit plan of any kind
or any applicable law or regulation now or subsequently in effect
under which the availability or amount of benefits or contributions
is related to level of compensation. It is specifically agreed by
the parties that any benefits that Employee may receive or derive
from this Agreement will not be considered as salary for
calculating any severance payment that may be payable to Employee
in the event of a termination of his or her employment.
(a) The
rights and remedies provided by this Agreement are cumulative and
t
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