Employment Agreement - Orbitz Inc. and Christopher T. Hjelm
ORBITZ, INC.
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is entered into as of July 1, 2003, (the
"Effective Date") by and between Orbitz, Inc., a Delaware Corporation (the
"Company") and Christopher T. Hjelm ("Executive").
RECITALS:
WHEREAS, the Company, through its affiliate Orbitz LLC, a Delaware limited
liability company, is engaged in the business of developing and operating a
travel related web site (the "Business");
WHEREAS, Executive has certain unique skills, experience and expertise
related to the Business; and
WHEREAS, Executive desires to be employed by the Company and both parties
desire to enter into this Agreement to evidence the terms and conditions of such
employment.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises in this Agreement, the parties agree as follows:
1. EMPLOYMENT. The Company agrees to employ Executive and Executive
agrees to be employed by the Company upon the terms and conditions of this
Agreement. The period of Executive's employment under this Agreement will
commence on the Effective Date and is referred to herein as the "Employment
Term." Executive hereby represents and warrants that neither Executive's entry
into this Agreement nor Executive's performance of Executive's duties and
obligations hereunder will conflict with or result in a breach of the terms,
conditions or provisions of any other agreement or obligation of any nature to
which Executive is a party or by which Executive is bound, including, without
limitation, any development agreement, non-competition agreement or
confidentiality agreement previously entered into by Executive.
2. AT-WILL EMPLOYMENT. The parties agree that Executive's employment with
the Company will be "at-will" employment and, subject to the parties rights and
obligations under Section 8 of this Agreement, may be terminated at any time,
for any reason or no reason, with or without cause or notice by either party.
Executive understands and agrees that neither Executive's job performance nor
promotions, commendations, bonuses, option grants or the like from the Company
give rise to or in any way serve as the basis for modification, amendment, or
extension, by implication or otherwise, of Executive's "at-will" status or
employment with the Company.
3. POSITION, DUTIES AND COMMITMENT.
(a) POSITIONS AND DUTIES. During the Employment Term, Executive will
be employed by the Company and will initially be employed as the Company's Chief
Technology Officer, and will report to and be subject to the direction of the
Company's Chief Executive Officer. Executive agrees to serve in such position
with the Company and such substitute or further offices or
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positions of substantially consistent rank and authority as will, from time to
time, be determined by the Company's Board of Directors.
(b) COMMITMENT. During the Employment Term, Executive will devote
Executive's full business time, attention, skill and efforts to the faithful
performance of Executive's duties hereunder, and will perform the duties and
carry out the responsibilities assigned to Executive to the best of Executive's
ability in a diligent, trustworthy, businesslike and efficient manner for the
purpose of advancing the Company and the Business. Executive acknowledges that
Executive's duties and responsibilities will require Executive's full-time
business efforts and agrees that during the Employment Term Executive will not
engage in any outside business activities except for activities that do not
conflict with the Company's interests or interfere with the performance of
Executive's duties hereunder; provided that any such outside business activities
have been approved, in advance in writing, by the Company.
4. COMPENSATION.
(a) BASE SALARY. During the Employment Term, the Company will pay
Executive, a base salary at the rate of $350,000 per year (the "Base Salary"),
subject to periodic review and modification, solely at the Company's discretion.
The Base Salary will be paid periodically in accordance with the Company's
normal employee payroll practices.
(b) BONUS PROGRAM. During the Employment Term, Executive will be
eligible to participate, on an annual basis, in the Company's bonus program (the
"Bonus Program"), in accordance with terms of the Company's bonus policy as in
effect from time to time. Executive will be eligible to receive an award of
bonus compensation under the Bonus Program based on an annual target bonus
amount of 50% of the Base Salary ("Annual Bonus"). On an annual basis, the Board
of Directors of the Company and the Company's Chief Executive Officer will
determine performance targets for the Company and Executive, as well as other
criteria applicable to Executive's participation in the Bonus Program and the
potential award of an Annual Bonus to Executive under the Bonus Program. An
award of an Annual Bonus to Executive under the Bonus Program will be in the
sole and absolute discretion of the Company. The decision of the Company will be
final and binding upon Executive. If the Employment Term commences after January
1 of a calendar year, then the Annual Bonus awarded, if any, to Executive, for
such calendar year will be pro-rated on the basis of (ii) a 365 day year and
(ii) the number of days during such calendar year that Executive was employed by
the Company.
(c) SIGNING BONUS. Upon execution of this Agreement and commencement
of the Employment Term, Executive will receive a signing bonus of $50,000.
(d) STOCK OPTIONS AND RESTRICTED STOCK. As of the Effective Date,
Executive will be granted options to purchase 500,000 shares of the Company's
Common Stock at an exercise price of $4.34 per share (the "Options"), pursuant
to and subject to the terms and conditions of the Company's 2002 Stock Plan (the
"Stock Plan") and a stock option agreement by and between Executive and the
Company (the "Option Agreement"). In addition, in accordance with the terms of
Executive's offer letter, Executive will receive an award and grant of 100,000
shares of restricted stock (the "Restricted Shares") pursuant to and subject to
the Stock Plan and a restricted stock agreement by and between Executive and the
Company (the "Stock Agreement").
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(e) RELOCATION REIMBURSEMENT. The Company will reimburse Executive
for the following reasonable costs: (i) transaction costs associated with the
purchase of a new primary residence in the Chicago area, including, but not
limited to, closing costs, inspections, title insurance, and brokerage and
related fees; (ii) transaction costs associated with selling Executive's current
residence, including, but not limited to, closing costs, inspections, title
insurance, and brokerage and related fees; and (iii) costs associated with
moving household furnishings and other personal effects and the tax gross-up
associated with the moving expenses.
(f) WITHHOLDING. All compensation payable to Executive under this
Agreement, including, without limitation, Base Salary, Annual Bonus and
severance payments, will be subject to all applicable withholding taxes, other
normal payroll deductions and any other amounts required to be withheld.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive will be
entitled to participate in the employee benefit plans and programs currently and
hereafter maintained by the Company of general applicability to other employees
of the Company, as well as any plans or programs provided to other employees of
the Company in similar positions with similar responsibilities (subject to
applicable waiting periods and other restrictions). The Company reserves the
right to cancel, modify or change the benefit plans and programs it offers to
its employees at any time.
6. VACATION. During the Employment Term, Executive will be entitled to
vacation in accordance with the Company's vacation policy, as in effect from
time to time. Executive will make good faith efforts to schedule vacations so as
to least conflict with the Company's conduct of the Business, will not take more
than two (2) weeks vacation at any one time and will give the Company adequate
advance notice of Executive's planned absences.
7. EXPENSES. Upon timely submission of supporting documentation
satisfactory to the Company, the Company will reimburse Executive for reasonable
business expenses incurred by Executive in the furtherance of or in connection
with the performance of Executive's duties hereunder, in accordance with the
Company's expense reimbursement policy as in effect from time to time.
8. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. If Executive's employment with the
Company is terminated by the Company other than for "Cause" (as defined below)
or if Executive resigns as a result of "Constructive Termination" (as defined
below), then the Company will: (i) for a period of six (6) months from the date
of such termination or resignation, (A) continue to pay the Base Salary (as in
effect on the date of such termination or resignation) to Executive in
accordance with Section 4(a) of this Agreement, (B) provide continuing medical
coverage described in section 4980B of the Internal Revenue Code of 1986, as
amended (sometimes referred to as "COBRA coverage") at a rate not to exceed the
required employee contribution for such medical coverage provided for the
Company's active employees (which period will be counted toward the Company's
obligation to provided COBRA coverage), and (C) permit Executive to continue to
participate, at employee
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contribution rates, in the Company's life and accidental death policies (or
substantially similar benefits) provided to Executive immediately prior to
termination or resignation; (ii) pay to Executive an amount equal to the
targeted maximum Annual Bonus, less any portion of the Annual Bonus already paid
to Executive, pro-rated on the basis of (A) a 365 day year and (B) the number of
days during such calendar year that Executive was employed by the Company; and
(iii) as of the date of termination or resignation, the Executive will be
credited with six months of additional vesting service for purposes of the
vesting in any unvested Options to purchase stock of the Company held by him as
of the date of termination or resignation. Thereafter, the Options will continue
to be subject to the terms, definitions and provisions of the Stock Plan and
Option Agreement. Executive will not be required or have any duty or obligation
to mitigate the amount of any payment under this subsection by seeking other
employment or otherwise. Notwithstanding anything to the contrary herein, no
payments from or performance by the Company will be due under this subsection or
subsection 8 (d) below unless and until Executive has executed a general release
and waiver of claims of the Company (other than claims arising from breaches of
this Agreement), in form reasonably satisfactory to the Company, and the
execution of such general release and waiver of claims will be a condition to
Executive's rights and the Company's obligations under this subsection and
subsection 8 (d) below.
(b) VOLUNTARY TERMINATION; TERMINATION FOR CAUSE. If Executive's
employment with the Company is terminated by the Company for Cause or if
Executive resigns other than as a result of Constructive Termination, then (i)
the Company will have no further obligation to Executive under this Agreement,
except for payment of Base Salary and benefits accrued (e.g., accrued vacation
days) through the date of such termination or resignation; (ii) in accordance
with the Stock Plan and the Option Agreement, the vesting of the Options will
cease; and (iii) the Company will have no obligation to provide severance pay or
benefits continuation to Executive.
(c) DEATH AND DISABILITY. The Employment Term will terminate upon
the death of Executive or upon written notice from the Company to Executive that
Executive is "Disabled" (as defined below). The Executive will be considered
"Disabled" during any period in which (i) he or she has a physical or mental
disability which renders him or her incapable, after reasonable accommodation,
of performing his or her duties under this Agreement; (ii) such disability is
determined by the Company's Board of Directors to be of a long-term nature; and
(iii) the Executive is eligible for income replacement benefits under the
Company's long-term disability plan or another arrangement providing
substantially similar benefits. In the event of a dispute as to whether the
Executive is permanently Disabled, the Company may refer the same to a licensed
practicing physician of the Company's choice, and the Executive agrees to submit
to such tests and examination as such physician will deem appropriate. Upon
termination of Executive's employment as the result of Executive's death or
becoming Disabled, Executive will be deemed to have been awarded and earned the
pro-rata portion of Executive's Annual Bonus for the then current calendar year.
Except as set forth in the preceding sentence, if Executive's employment with
the Company is terminated pursuant to this subsection, (i) the Company will have
no further obligation to Executive under this Agreement, except for payment of
Base Salary and benefits accrued (e.g., accrued vacation days) through the date
of such termination; (ii) in accordance with the Stock Plan and the Option
Agreement, the vesting of the Options will cease; and (iii) the Company will
have no obligation to provide severance pay or benefits continuation to
Executive.
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(d) CHANGE IN CONTROL. In the event that Executive's employment with
the Company is terminated pursuant to Section 8(a) above at any time during the
period commencing on the sixtieth (60th) day preceding a Change in Control and
continuing through the second anniversary thereof (the "CIC Period"), then in
lieu of its obligations pursuant to Section 8(a) above, the Company will: (i)
for a period of twelve (12) months from the date of such termination or
resignation, continue to pay the Base Salary (as in effect on the date of such
termination or resignation) to Executive in accordance with Section 4(a) of this
Agreement; (ii) provide continuing medical coverage described in section 4980B
of the Internal Revenue Code of 1986, as amended (sometimes referred to as
"COBRA coverage") at a rate not to exceed the required employee contribution for
such medical coverage provided for the Company's active employees (which period
will be counted toward the Company's obligation to provided COBRA coverage);
(iii) permit Executive to continue to participate, at employee contribution
rates, in the Company's life and accidental death policies (or substantially
similar benefits) provided to Executive immediately prior to termination or
resignation; (iv) pay to Executive an amount equal to the targeted maximum
Annual Bonus; (v) pay to Executive an amount equal to the targeted maximum
Annual Bonus, less any portion of the Annual Bonus already paid to Executive,
pro-rated on the basis of (A) a 365 day year and (B) the number of days during
such calendar year that Executive was employed by the Company; and (vi)
accelerate the vesting of the one hundred percent (100%) of the Options.
Thereafter, the Options will continue to be subject to the terms, definitions
and provisions of the Stock Plan and Option Agreement. Following the expiration
of the CIC Period the provisions of Section 8(a) will be in full force and
effect.
Except as may be otherwise specifically provided in an amendment of this Section
8 adopted in accordance with Section 20, the Executive's rights under this
Section 8 will be in lieu of any benefits that may be otherwise payable to or on
behalf of the Executive pursuant to the terms of any severance pay arrangement
of the Company or any of its Affiliates or any other, similar arrangement of the
Company or any of its Affiliates providing benefits upon involuntary termination
of employment.
9. CONFIDENTIAL INFORMATION. Contemporaneously with the execution of this
Agreement, Executive will enter into the Company's standard Confidential
Information and Invention Assignment Agreement (the "Confidential Information
Agreement").
10. RESTRICTIVE COVENANTS.
(a) Executive acknowledges that: (i) the Company has been engaged in
the Business; (ii) Executive is one of the persons who is primarily responsible
for the conduct, management and operation of the Business by the Company; (iii)
the Business is conducted by the Company on a global basis; and (iv) Executive's
work for and equity interests in the Company have provided Executive with trade
secrets and confidential information of the Company concerning the Business; (v)
the nature of the Company's Business is such that if Executive were to become
employed by, or substantially involved in, the business of a competitor of the
Company during the twelve (12) months following the termination of Executive's
employment with the Company, it would be very difficult for Executive not to
rely on or use the Company's trade secrets and confidential information; (vi)
the agreements and covenants set forth in this Section are essential to protect
the Business conducted by the Company and its goodwill; and (vii) the Company is
unwilling to enter into this Agreement and offer the compensation, benefits,
equity interests and
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other rights set forth herein, including without limitation those described in
Sections 8(a) and (d) above, but for such agreements and covenants. Accordingly,
to avoid the inevitable disclosure of the Company's trade secrets and
confidential information, Executive covenants and agrees as follows:
(b) For a period commencing on the date hereof and terminating on
the twelve (12) month anniversary of the termination, whether pursuant to
Section 8(a) or 8(b) hereof, of Executive's employment with the Company (the
"Restricted Period") Executive, unless acting in accordance with the Company's
prior written consent (which consent may be given by Company's chairman or any
other duly authorized officer) or as an employee of, or as a consultant to, the
Company or one of its Affiliates (as defined below), will not, directly or
indirectly, own, manage, operate, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected as an
officer, director, employee, principal, agent, representative, consultant,
investor, owner, partner, manager, joint venturer or have a similar affiliation
with, any business or enterprise engaged in the Business; PROVIDED, HOWEVER,
that Executive will not be prohibited from being employed by or engaged in a
business or enterprise in which the Business accounts for less than 10% of the
revenues, income or the value of the assets of such business (the "Segment"), so
long as Executive is not involved in the day to day operations or management and
does not direct the strategy of such Segment, and Executive may own, directly or
indirectly, solely as an investment, securities of any "Person" (as defined
below) having a class of securities (i) registered under the Securities Exchange
Act of 1934 and (ii) publicly traded, if Executive is not a controlling Person
of, or a member of a group which controls, such Person and Executive does not,
directly or indirectly own more than two percent (2%) of any class of securities
of such Person.
(c) During the Restricted Period, other than on behalf of the
Company, Executive will not: (i) directly or indirectly, (A) hire or offer
employment to any individual who is or was at any time during the Restricted
Period an employee of the Company or any of its Affiliates or an Independent
Contractor (as hereinafter defined), or (B) encourage any such individual to
terminate his or her relationship with the Company or one of its Affiliates; or
(ii) solicit or encourage any person who is or was a supplier, customer or
client of the Company or one of its Affiliates at any time during the Restricted
Period for the purpose of (A) engaging in, or assisting any person or entity in
engaging in, the Business, or (B) terminating or otherwise altering his, hers or
its relationship or prospective relationship with the Company or such Affiliate.
For purposes of this Section, "Independent Contractor" will include any
individual who is or was an independent contractor whose principal job or
function is or was to provide services to the Company or an Affiliate with
respect to the Business.
(d) If Executive breaches any of the covenants set forth in this
Section 10 (the "Restrictive Covenants"), the Company will have the right and
remedy to have the Restrictive Covenants specifically enforced by any court of
competent jurisdiction, which right and remedy is in addition to, and not in
lieu of, any other rights and remedies available to the Company under law or in
equity. Executive acknowledges and agrees that the Restrictive Covenants are
reasonable, necessary and valid in duration and geographical scope and in all
other respects. If any court determines that any of the Restrictive Covenants,
or any part thereof, is invalid or unenforceable, the remainder of the
Restrictive Covenants will not be affected thereby and will be given full effect
without regard to the invalid portions. If any court determines that any of the
Restrictive Covenants, or any part hereof, are unenforceable because of the
duration or geographical scope of such
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provisions, such court will have the power to reduce the duration or scope of
such provision, as the case may be, and, in its reduced form, such provision
will then be enforceable.
11. DEFINITIONS. For purposes of this Agreement, the following initially
capitalized terms have the following meanings:
(a) AFFILIATE: With respect to any Person (as defined below) means
any other person, controlling, controlled by or under common control with, such
person;
(b) CAUSE: For purposes of this Agreement, the term "Cause" will
mean: (i) the willful and continued failure by the Executive to substantially
perform his or her duties with the Company (other than any such failure
resulting from the Executive's being Disabled), within a reasonable period of
time after a written demand for substantial performance is delivered to the
Executive by the Company, which demand specifically identifies the manner in
which the Company believes that the Executive has not substantially performed
his or her duties; (ii) the willful engaging by the Executive in conduct which
is demonstrably and materially injurious to the Company, monetarily or
otherwise; or (iii) the engaging by the Executive in egregious misconduct
involving serious moral turpitude to the extent that, in the reasonable judgment
of the Company, the Executive's credibility and reputation no longer conform to
the standard of the Company's executives. For purposes of this Agreement, no
act, or failure to act, on the Executive's part will be deemed "willful" unless
done, or omitted to be done, by the Executive not in good faith and without
reasonable belief that the Executive's action or omission was in the best
interest of the Company.
(c) CHANGE IN CONTROL: The first to occur of any of the following
events:
(i) An acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of
either (1) the then outstanding shares of Stock of the Company (the "Outstanding
Company Common Stock") or (2) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); excluding, however, the
following: (1) any acquisition directly from the Company (including without
limitation an initial public offering), other than an acquisition by virtue of
the exercise of a conversion privilege unless the security being so converted
was itself acquired directly from the Company, (2) any acquisition by the
Company; (3) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company; or (4) any acquisition by any Person pursuant to a transaction which
complies with clauses (1), (2) and (3) of subsection (iii) of this definition of
"Change in Control"; or
(ii) Within any period of 24 consecutive months, a change in the
composition of the Board such that the individuals who, immediately prior to
such period, constituted the Board (such Board will be hereinafter referred to
as the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, for purposes of this definition of "Change in
Control," that any individual who becomes a member of the Board during such
period, whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of those individuals
who are members of the Board and who were also
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members of the Incumbent Board (or deemed to be such pursuant to this proviso)
will be considered as though such individual were a member of the Incumbent
Board; but, provided further, that any such individual whose initial assumption
of office occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board will not be so considered as a
member of the Incumbent Board; provided further that any individual who
voluntarily resigns from the Board in connection with the reduction in size of
the Board will not be deemed to be a member of the Incumbent Board; or
(iii) The consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company or Orbitz, LLC ("Corporate Transaction"); excluding, however, such a
Corporate Transaction pursuant to which (1) all or substantially all of the
individuals and entities who are the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Corporate Transaction will beneficially own, directly
or indirectly, more than 60% of, respectively, the outstanding shares of common
stock, and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may be, of
the corporation resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction owns the Company
or all or substantially all of the Company's assets, either directly or through
one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (2) no Person (other than the Company, any employee benefit plan (or related
trust) sponsored or maintained by the Company, by any corporation controlled by
the Company, or by such corporation resulting from such Corporate Transaction)
will beneficially own, directly or indirectly, more than 25% of, respectively,
the outstanding shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the outstanding voting
securities of such corporation entitled to vote generally in the election of
directors, except to the extent that such ownership existed with respect to the
Company prior to the Corporate Transaction, and (3) individuals who were members
of the Board immediately prior to the approval by the stockholders of the
Corporation of such Corporate Transaction will constitute at least a majority of
the members of the board of directors of the corporation resulting from such
Corporate Transaction (it is intended that this subsection (iii) include
Corporate Transactions that result in entities other than corporations that are
governed by bodies other than a board of directors, including without
limitation, limited liability companies that are governed by a board of
managers); or
(iv) The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company, other than to a corporation pursuant
to a transaction which would comply with clauses (1), (2) and (3) of subsection
(iii) of this definition of "Change in Control," assuming for this purpose that
such transaction were a Corporate Transaction.
(d) CONSTRUCTIVE TERMINATION: The occurrence of any one or more of
the following events, without Executive's prior written consent, that is not
cured by the Company or its "Successor" (as defined below) within thirty (30)
days of receiving detailed written notice from Executive: (i) a reduction in
Executive's Base Salary without Executive's consent; (ii) a requirement by the
Company or its Successor that Executive relocate Executive's primary residence
outside of the area comprising a fifty (50) mile radius around the then current
location of such residence (the
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"Area); (iii) the assignment, by the Company or its Successor, to Executive of
any duties inconsistent with Executive's position and status as set forth in
Section 3 or a change in Executive's reporting relationship from the reporting
relationship required in accordance with Section 3. For purposes of this
subsection (iii), any diminution in duties, status, or responsibility that
result from a Successor's assimilation of the Business into a larger business
will be considered the assignment of duties inconsistent with the Executive's
position and status as set forth in Section 3.
(e) SUCCESSOR: Any Person that succeeds to, or has the practical ability
to control (either immediately or with the passage of time), the Company's
business directly, by merger or consolidation, or indirectly, by purchase of the
Company's voting securities or all or substantially all of its assets or of
Orbitz, LLC, or otherwise.
12. ASSIGNMENT. Neither this Agreement nor the rights or obligations
hereunder of the parties may be assigned or transferred by Executive, except in
accordance with the laws of descent and distribution. The Company may assign
this Agreement and the Company's rights and obligations hereunder, and will
assign this Agreement and its rights and obligations hereunder, to any Successor
of the Company, which by operation of law or otherwise, continues to carry on
substantially the business of the Company prior to the event of succession, and
the Company will, as a condition of the succession, require such Successor to
agree to assume the Company's obligations and be bound by this Agreement.
13. NO STRICT CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by Executive and the Company to express their
mutual intent, and no rule of strict construction will be applied against either
party.
14. WAIVER. No delay on the part of any party in exercising any right,
power or privilege hereunder will operate as a waiver thereof. Nor will any
waiver on the part of any party of any such right, power or privilege hereunder,
nor any single or partial exercise of any right, power or privilege hereunder,
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.
15. HEADINGS. The headings in this Agreement are inserted for convenience
only and are not to be considered in the interpretation or construction of the
provisions hereof.
16. NOTICES. All notices, requests, demands and other communications
called for or permitted hereunder will be in writing and will be deemed given
(i) on the date of delivery if delivered personally, (ii) one (1) day after
being sent by a well established commercial overnight service, or (iii) four (4)
days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successors at the
following addresses, or at such other addresses as the parties may later
designate in writing:
17. If to the Company:
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Orbitz, Inc.
200 South Wacker Drive, 19th Floor
Chicago, IL 60606
Attn: Vice President, Human Resources
With a copy to:
Orbitz, Inc.
200 South Wacker Drive, 19th Floor
Chicago, IL 60606
Attn: General Counsel
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If to Executive:
Christopher T. Hjelm
18. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in full force and effect without said
provision.
19. ARBITRATION. Except for any claim or dispute which gives rise or could
give rise to equitable relief under this Agreement, at the request of Executive
any disagreement, dispute, controversy or claim arising out of or relating to
this Agreement or the breach hereof will be settled exclusively and finally by
binding arbitration. The arbitration will be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA
Rules"). Such arbitration will be conducted in Chicago, Illinois. The arbitral
tribunal will consist of three (3) arbitrators selected according to the
procedure set forth in the AAA Rules in effect on the date hereof and the
arbitrators will be empowered to order any remedy which is appropriate to the
proceedings and issues presented to them. The chair-person of the arbitral
tribunal will be appointed by the American Arbitration Association from among
the three (3) arbitrators so selected. Any party to a decision rendered in such
arbitration proceedings may seek an order enforcing same by any court having
jurisdiction. The prevailing party in any such arbitration or other proceeding
in connection with the enforcement of a party's rights hereunder will be
entitled to recover from the other party any expenses for attorneys' fees and
disbursements related thereto.
20. INTEGRATION. This Agreement, together with the Stock Plan, Option
Agreement and the Confidential Information Agreement represents the entire
agreement and understanding between the parties as to the subject matter herein
and supersedes all prior or contemporaneous agreements whether written or oral.
No waiver, alteration, or modification of any of the provisions of this
Agreement will be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
21. GOVERNING LAW. This Agreement will be governed by the laws of the
State of Illinois, without regard to its conflict of laws principles.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by their duly authorized officers, as of the day and year
first above written.
COMPANY:
ORBITZ, INC.
By: /s/ J. G. Katz
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Title: J. G. Katz
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EXECUTIVE:
/s/ Chris Hjelm
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Print Name: Chris Hjelm
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