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Exhibit 10.1 SEPARATION AGREEMENT This
Separation Agreement (this "Agreement") is made and entered into as
of the 6th day of January, 2009, by and between Orbitz Worldwide,
Inc. (together with its subsidiaries, the "Company") and Steven D.
Barnhart (the "Executive"). WHEREAS,
the Company and Executive entered into an employment agreement
dated as of December 26, 2008 (the "Employment Agreement"; terms
used but not defined herein shall have the meanings set forth in
the Employment Agreement), setting forth the terms and conditions
of Executive’s employment with the Company; and
WHEREAS, the Company and Executive
intend that this Agreement shall represent the complete agreement
of the parties relating to Executive’s rights under the
Employment Agreement or otherwise relating to the termination of
his employment with the Company. NOW,
THEREFORE, the Company and Executive, for the full and sufficient
consideration set forth below, agree as follows:
1. Executive has resigned from
his position as President and Chief Executive Officer and as a
director of the Company on January 6, 2009 (the "Separation of
Service Date"), but for purposes of severance and the vesting of
any equity-based awards held by Executive with respect to the
Company, Executive’s employment with the Company shall be
deemed to terminate without Cause as of April 6, 2009 (the
"Last Date of Employment"). Executive shall receive his Base Salary
earned from January 6, 2009 through his Last Date of Employment,
less applicable taxes, withholding and any other lawful deductions.
Other than as set forth below, Executive shall not be eligible for
any other payments from the Company. In connection with
Executive’s resignation, the parties hereto hereby waive any
notice requirements set forth in the Employment Agreement.
2. Subject to Executive’s
execution of the General Release attached as Exhibit A hereto
(the "General Release") and Executive’s continued compliance
with Sections 8 and 9 of the Employment Agreement and in
consideration for execution by Executive of the General Release and
his full compliance with the promises made in this Agreement and
the General Release, the Company agrees:
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a.
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to pay Executive eight thousand two hundred nineteen dollars and
eighteen cents ($8,219.18), subject to applicable taxes,
withholding and deductions, which represents the pro rata portion
of Executive’s target bonus for 2009 and is paid pursuant to
the Section 7(c)(iii)(B) of the Employment Agreement;
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b.
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to pay Executive two million dollars ($2,000,000.00), subject to
applicable taxes, withholding and deductions, which represents
Executive’s base salary and target bonus for twenty-four
(24) months and is paid pursuant to Section 7(c)(iii)(C)
of the Employment Agreement;
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c.
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to pay Executive additional cash consideration in a lump sum
amount of thirty-seven thousand eight hundred eighty-nine dollars
and sixty-eight cents ($37,889.68), subject to applicable taxes,
withholding and deductions;
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d.
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to provide Executive with vesting of any equity-based awards
held by Executive with respect to the Company as, and to the
extent, described in the definitive documentation related to such
awards as summarized on Schedule I attached hereto (in the event of
an inconsistency between the information set forth on Schedule I
and the terms and conditions of such awards contained in the
definitive documentation related to such awards, the terms and
conditions contained in the definitive documentation shall govern);
and
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e.
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to provide Executive, as additional consideration, outplacement
benefits pursuant to Company policy.
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The severance payment provided in clause (a) of this
Section 2 shall be payable when the Company pays bonuses under
the Bonus Plan for the first half of fiscal year 2009, or if no
bonuses are paid, then no later than March 15, 2010. The
severance payment provided in clause (b) of this
Section 2 shall be payable in equal amounts over a period of
twenty-four (24) months from the Separation of Service Date in
accordance with the Company’s normal payroll practices, but
shall be delayed for six (6) months and one (1) day, or
if earlier, Executive’s death, as required by
Section 409A of the Internal Revenue Code
("Section 409A") and the regulations promulgated thereunder,
with the delayed payments payable in a lump sum at the end of such
delay period. The severance payment provided in clause (c) of
this Section 2 will be made as soon as reasonably practicable
once the General Release 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. 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. Notwithstanding the foregoing, the 72,881 restricted stock
units of the Company held by Executive that are scheduled to vest
after the Separation of Service Date shall be settled in shares of
the common stock of the Company on July 7, 2009, or if
earlier, Executive’s death, as required by Section 409A
and the regulations promulgated thereunder.
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, 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 he would not receive certain sums and/or benefits
specified in Section 2 above, except for his execution of this
Agreement and the General Release, and the fulfillment of the
promises contained herein and therein, and that such consideration
is greater than any amount to which he would otherwise be entitled
as an employee of the Company or under the Employment Agreement or
applicable law. 5. This
Agreement is made in the State of Illinois and shall be interpreted
under the laws of the State of Illinois. Its language shall be
construed as a whole, according to its fair meaning, and not
strictly for or against either party. Should any provision of this
Agreement be declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable,
including the general release language, such provision shall
immediately become null and void, leaving the remainder of this
Agreement in full force and effect. However, if as a result of any
action initiated by Executive, any portion of the General Release
were ruled to be unenforceable for any reason, Executive shall
return the payments and benefits paid under this Agreement or the
General Release to the Company.
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6. Executive agrees that
neither this Agreement or the General Release nor the furnishing of
the consideration for this Agreement or the General Release shall
be deemed or construed at any time for any purpose as an admission
by the Company of any liability or unlawful conduct of any kind,
all of which the Company denies.
7. This Agreement may not be
modified, altered or changed except upon express written consent of
both parties wherein specific reference is made to this Agreement.
8. This Agreement (and when
executed, the General Release) sets forth the entire agreement
between the parties hereto, and fully supersedes any prior
agreements or understandings between the parties, with the
exception of the award agreements related to the equity-based
awards held by Executive with respect to the Company and any
non-compete, non-solicit or confidentiality agreement between
Executive and the Company or one of their affiliates, including but
not limited to Sections 8 and 9 of the Employment Agreement,
which agreement(s) shall survive the termination of
Executive’s employment in accordance with its own terms.
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IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first written
above.
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EXECUTIVE
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/s/ Steven D. Barnhart
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ORBITZ WORLDWIDE, INC.
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By: /s/ James P. Shaughnessy
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Name: James P. Shaughnessy
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Title: SVP, Chief Administrative Officer
and
General Counsel
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EXHIBIT A FORM OF GENERAL RELEASE This
General Release ("General Release") is incorporated into, and forms
a part of, the Separation Agreement dated January 6, 2009 (the
"Agreement") by and between Orbitz Worldwide, Inc. and Steven D.
Barnhart. Terms used but not defined herein shall have the meanings
ascribed to them in the Agreement.
WHEREAS, Orbitz Worldwide, Inc.
(collectively with its subsidiaries, the "Company") and Steven D.
Barnhart (collectively with his heirs, executors, administrators,
successors and assigns, the "Executive") entered into the Agreement
setting forth the terms and conditions of Executive’s
termination of employment with the Company; and
WHEREAS, in exchange for entering
into this General Release, Executive has received separate
consideration beyond that which he was entitled under the
Employment Agreement, the Company’s policies or under
applicable law. NOW, THEREFORE, in
consideration of the mutual promises and agreements set forth in
the Agreement and this General Release, the Company and Executive
hereby agree as follows:
1. Executive hereby agrees and
acknowledges that:
(a) the
terms of the Agreement and this General Release are the products of
mutual negotiation and compromise between Executive and the
Company; and
(b) the
meaning, effect and terms of the Agreement and this General Release
have been fully explained to Executive;
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