Exhibit 10.14
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement"), dated as of February 7, 2002 is
entered into by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Employee") and Expedia, Inc., a
Washington corporation (the "Company").
WHEREAS, Employee is currently serving as the Chief Executive Officer of
the Company;
WHEREAS, USA Networks, Inc. ("USAi"), the Company, Taipei, Inc., and
Microsoft Corporation have entered into an Agreement and Plan of
Recapitalization and Merger dated as of July 15, 2001 as amended August 21, 2001
(the "Transaction Agreement"), which contemplates the merger of the Company with
and into Taipei, Inc. to be effective as of the Effective Time (as defined in
the Transaction Agreement);
WHEREAS, the Board of Directors of the Company (the "Board") desires to
provide for the employment of Employee from and after the date upon which the
Effective Time occurs (the "Effective Date"), and Employee is willing to commit
himself to serve the Company and its subsidiaries and affiliates, on the terms
and conditions herein provided;
WHEREAS, the Company and Employee are parties to a Term Sheet dated as of
July 15, 2001 as amended as of August 22, 2001 (the "Term Sheet"), that
contemplates the execution by and between the parties prior to the Effective
Time of a long-form employment agreement consistent with the terms thereof;
WHEREAS, in order to effect the foregoing, the Company and Employee wish to
enter into an employment agreement on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, Employee and the Company have agreed and do hereby agree as follows:
1A. EMPLOYMENT. The Company agrees to continue to employ Employee as Chief
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Executive Officer of the Company, commencing upon the Effective Date, and
Employee accepts and agrees to such employment. In addition, Employee shall
serve as a member of the Board so long as Employee is employed as Chief
Executive Officer of the Company. During Employee's employment with the Company,
Employee shall perform all services and acts necessary or advisable to fulfill
the duties and responsibilities as are commensurate and consistent with
Employee's position and shall render such services on the terms set forth
herein. During Employee's employment with the Company, Employee shall report
solely to the Board (except as otherwise provided in the penultimate sentence of
Section 1(c)). Employee shall have such powers and duties with respect to the
Company as may reasonably be assigned to Employee by the Board, to the extent
consistent with Employee's position and status. Employee agrees to devote all of
Employee's working time, attention and efforts to the Company and to perform the
duties of Employee's position in accordance with the Company's policies as in
effect from time to time. Employee's principal place of employment shall be the
Company's offices located in the Seattle, Washington metropolitan area.
2A. TERM OF AGREEMENT. The term ("Term") of this Agreement shall commence on the
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Effective Date and shall continue for a period of three years, unless sooner
terminated in accordance with the provisions of Section 1 of the Standard Terms
and Conditions attached hereto; provided that Employee and the Company will
enter into good faith negotiations to extend the Term no later than six months
prior to the end of the Term. Effective upon the Effective Date, this Agreement
shall replace and supercede Employee's existing employment letter with the
Company dated October 1, 1999 (the "Former Agreement"), and effective as of the
date hereof, this Agreement shall replace and supercede the Term Sheet, and the
Term Sheet shall be of no further force and effect.
3A. COMPENSATION.
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(a) BASE SALARY. During the Term, the Company shall pay Employee an annual
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base salary of $266,000 (the "Base Salary"), payable in equal biweekly
installments or in accordance with the Company's payroll practice as in effect
from time to time. For all purposes under this Agreement, the term "Base Salary"
shall refer to Base Salary as in effect from time to time.
(b) BONUS. During the Term, Employee shall be eligible to receive an annual
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bonus equal to 200% of his Base Salary, payable 50% in cash and 50% in options
to purchase shares of the Company's common stock, par value $.01 per share (the
"Common Stock") under a USAi company-wide policy in a manner consistent with
similarly situated executives of USAi and its subsidiaries, based on the
achievement of agreed-upon Company budget goals. The calculation of the value of
such options shall be consistent with the past practices of USAi and shall be no
less favorable for Employee than for other similarly situated executives of USAi
and its subsidiaries. $133,000 of the Employee's annual bonus will be guaranteed
and paid in cash while Employee is employed by the Company during the Term.
(c) EQUITY AWARDS. (i) Following the Effective Date, all of Employee's
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stock options outstanding and unexercised as of August 2, 2001 that are
outstanding as of the Effective Date shall remain outstanding in accordance with
their terms.
(ii) In consideration of Employee's entering into this Agreement and as
an inducement to continue in the employ of the Company, Employee shall be
granted as of the Effective Date under the USAi 2000 Stock and Annual Incentive
Plan a non-qualified stock option (the "USAi Option") to purchase 100,000 shares
of USAi's common stock, par value $.01 per share (the "USAi Common Stock"),
subject to the approval of the Compensation Committee of the USAi Board of
Directors. The exercise price per share of the USAi Option shall be the last
reported sales price of USAi Common Stock in the over-the-counter market (or
such other market on which the USAi Common Stock is then traded) on the last
trading date immediately prior to the date of grant. Such option shall vest and
become exercisable in four equal installments on each of the first four
anniversaries of the date of grant. The USAi Option shall have a scheduled
ten-year term.
(iii) In consideration of Employee's entering into this Agreement and as
an inducement to continue in the employ of the Company, Employee shall be
granted on the Effective Date under the Company's 2001 Stock Option Plan a
non-qualified stock option (the
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"Option") to purchase 375,000 shares of the Company's Common Stock,
subject to the approval of the Compensation Committee of the Board (the
"Compensation Committee"). The exercise price per share of the Option shall be
the closing sales price of the Common Stock (or the closing bid, if no sales are
reported) on the NASDAQ Stock Market on the last market trading day prior to the
date of grant. Such Option shall vest and become exercisable in four equal
installments on each of the first, second, third and fourth anniversaries of the
date of grant. The Option shall have a scheduled ten-year term.
(iv) Following the Effective Date, Employee shall be evaluated for
future option grants in a manner consistent with the evaluation provided for
similarly situated executives of USAi and its subsidiaries.
(v) The Company shall grant to Employee on the Effective Date 25,000
restricted shares (the "Restricted Stock Grant") of the Company's Common Stock.
All restrictions with respect to the Restricted Stock Grant shall lapse on the
third anniversary of the Effective Date, provided that Employee remains in the
employ of the Company through such date.
(vi) Upon a Change in Control of the Company, the USAi Option and all
Company options or other Company equity compensation, to the extent outstanding
as of the Change in Control of the Company, shall vest immediately. The USAi
Option and the Company options shall remain exercisable for one year following a
Change in Control of the Company notwithstanding any subsequent termination of
employment which otherwise would have provided for a shorter exercise period
following termination of Employee's employment.
(vii) Except as specifically set forth herein, each of the Option, the
USAi Option and the Restricted Stock Grant will be governed by the applicable
plan under which each grant is made and the award agreement relating thereto.
For purposes of this Agreement, a "Change in Control" of the Company shall
mean the first to occur of any of the following events:
A. The acquisition by any individual entity or group, within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act, other than USAi,
▇▇▇▇▇ ▇▇▇▇▇▇, Liberty Media Corporation, Vivendi Universal S.A. and
their respective affiliates (a "Person"), directly or indirectly, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of equity securities of the Company
representing more than 50% of the voting power of the then outstanding
equity securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (i), the
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following acquisitions shall not constitute a Change in Control: (1)
any acquisition by the Company, (2) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (3) any acquisition
by any corporation pursuant to a transaction which complies with
clauses (1), (2) and (3) of subsection (C); or
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B. Individuals who, immediately following the Effective Date, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at
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least a majority of the Board; provided, however, that any individual
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becoming a director subsequent to such date, whose election, or
nomination for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board; or
C. 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 the purchase of assets or stock of another entity (a
"Business Combination"), in each case, unless immediately following such
Business Combination, (1) all or substantially all of the individuals
and entities who were the beneficial owners of the Outstanding Company
Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the then
outstanding combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors of
the corporation resulting from such Business Combination (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 proportion as their ownership immediately prior to such
Business Combination of the Outstanding Company Voting Securities, (2)
no Person (excluding USAi, ▇▇▇▇▇ ▇▇▇▇▇▇, Liberty Media Corporation,
Vivendi Universal S.A. and their affiliates, any employee benefit plan
(or related trust) of the Company or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
more than a majority of the combined voting power of the then
outstanding voting securities of such corporation except to the extent
that such ownership of the Company existed prior to the Business
Combination and (3) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination
were members of the Incumbent Board at the time of the initial
agreement, or action of the Board, providing for such Business
Combination; or
D. Approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company; or
E. A "Change in Control" of USAi (as defined under USAi's 2000 Stock and
Annual Incentive Plan, as amended from time to time); or
F. Occurrence of the events specified as a Change in Control under Section
1(c) of the Standard Terms and Conditions.
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Notwithstanding paragraphs (A) through (E) above, in no event shall a Change in
Control occur under paragraphs (A) through (E) above (i) if USAi (or ▇▇▇▇▇
▇▇▇▇▇▇) maintains a direct or indirect Controlling Interest in the Company or in
an entity that maintains a Controlling Interest in the Company, or (ii) as a
result of Liberty Media Corporation or Vivendi Universal S.A. obtaining a direct
or indirect Controlling Interest in USAi (a "Liberty/Vivendi Event"). A
"Controlling Interest" in an entity shall be defined as (A) beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of (i)
more than 50% of the outstanding equity securities of the entity or (ii) equity
securities representing more than 50% of the voting power of the outstanding
equity securities of the entity or (B) voting control of more than 50% of the
voting power of the entity.
(d) BENEFITS. From the Effective Date through the date of termination of
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Employee's employment with the Company for any reason, except as specifically
provided herein, Employee shall be entitled to participate in welfare, health,
life insurance, pension benefit and incentive plans, programs, policies, and
practices as may be adopted from time to time by the Company on the same basis
as that provided to similarly situated executives of the Company and USAi and
its subsidiaries; provided, that such participation shall not duplicate any of
the compensation and benefits specifically provided herein. Without limiting the
generality of the foregoing, Employee shall be entitled to the following
benefits:
(i) Reimbursement for Business Expenses. During the Term, the Company
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shall reimburse Employee for all reasonable and necessary expenses incurred
by Employee in performing Employee's duties for the Company, on the same
basis as similarly situated executives of the Company and in accordance
with the Company's policies as in effect from time to time.
(ii) Vacation. During the Term, Employee shall be entitled to a number
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of weeks of paid vacation per year equal to those provided to similarly
situated executives of USAi and its subsidiaries, in accordance with the
plans, policies, programs and practices of the Company applicable to
similarly situated executives of the Company generally.
4A. NOTICES. All notices and other communications under this Agreement shall be
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in writing and shall be given by first-class mail, certified or registered with
return receipt requested or hand delivery acknowledged in writing by the
recipient personally, and shall be deemed to have been duly given three days
after mailing or immediately upon duly acknowledged hand delivery, as
applicable, to the respective persons named below:
If to USAi: USA Networks, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
With a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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If to the Company: Expedia, Inc.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
With a copy to:
Dechert
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇. ▇▇▇▇▇▇
If to Employee: At the most recent address of Employee
on record at the Company
Either party may change such party's address for notices by notice duly given
pursuant hereto.
5A. GOVERNING LAW; JURISDICTION. This Agreement and the legal relations thus
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created between the parties hereto shall be governed by and construed under and
in accordance with the laws of the State of Delaware, without reference to the
principles of conflicts of laws. Any and all disputes between the parties which
may arise pursuant to this Agreement will be heard and determined solely before
an appropriate federal court in Delaware, or, if not maintainable therein, then
in an appropriate Delaware state court. The parties acknowledge that such courts
have jurisdiction to interpret and enforce the provisions of this Agreement, and
the parties consent to, and waive any and all objections that they may have as
to, personal jurisdiction and/or venue in such courts.
6A. COUNTERPARTS. This Agreement may be executed in several counterparts, each
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of which shall be deemed to be an original but all of which together will
constitute one and the same instrument. Employee expressly understands and
acknowledges that the Standard Terms and Conditions attached hereto are
incorporated herein by reference, deemed a part of this Agreement and are
binding and enforceable provisions of this Agreement. References to "this
Agreement" or the use of the term "hereof" shall refer to this Agreement and the
Standard Terms and Conditions attached hereto, taken as a whole.
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7A. TERMINATION OF PRIOR AGREEMENTS. Except as specifically provided otherwise
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herein, this Agreement constitutes the entire agreement between the parties, and
as of the Effective Date, terminates and supercedes any and all prior agreements
and understandings (whether written or oral) between the parties with respect to
the subject matter of this Agreement, including the Former Agreement and, as of
the date hereof, this Agreement shall replace and supercede the Term Sheet.
Employee acknowledges and agrees that neither the Company nor anyone acting on
its behalf has made, and is not making, and in executing this Agreement, the
Employee has not relied upon, any representations, promises or inducements
except to the extent the same is expressly set forth in this Agreement. Employee
hereby represents and warrants that by entering into this Agreement, Employee
will not rescind or otherwise breach any agreement or other legal obligation
with any other person or entity.
8A. RECAPITALIZATION. The Company shall not restrict Employee's ability to
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elect to receive any Class B Shares of the Company in the recapitalization
of the Company, as described in the Transaction Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and delivered by its duly authorized officer and Employee has executed and
delivered this Agreement on February 7, 2002.
EXPEDIA, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and General Counsel
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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STANDARD TERMS AND CONDITIONS
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1. TERMINATION OF EMPLOYEE'S EMPLOYMENT.
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(a) DEATH. In the event Employee's employment hereunder is terminated by
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reason of Employee's death, the Company shall pay Employee's designated
beneficiary or beneficiaries, within 30 days of Employee's death, in a lump sum
in cash, Employee's Base Salary from the date of Employee's death through the
end of the month in which Employee's death occurs and any Accrued Obligations
(as defined in paragraph 1(f) below).
(b) DISABILITY. If, as a result of Employee's incapacity due to physical or
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mental illness ("Disability"), Employee shall have been absent from the
full-time performance of Employee's duties with the Company for a period of four
consecutive months and, within 30 days after written notice is provided to
Employee by the Company (in accordance with Section 4A hereof), Employee shall
not have returned to the full-time performance of Employee's duties, Employee's
employment under this Agreement may be terminated by the Company for Disability.
During any period prior to such termination during which Employee is absent from
the full-time performance of Employee's duties with the Company due to
Disability, the Company shall continue to pay Employee's Base Salary at the rate
in effect at the commencement of such period of Disability, offset by any
amounts payable to Employee under any disability insurance plan or policy
provided by the Company. Upon termination of Employee's employment due to
Disability, the Company shall pay Employee within 30 days of such termination
(i) Employee's Base Salary from the date of Employee's termination of employment
due to Disability through the end of the month in which such termination of
employment occurs in a lump sum in cash, offset by any amounts payable to
Employee under any disability insurance plan or policy provided by the Company
with respect to such month; and (ii) any Accrued Obligations (as defined in
paragraph 1(f) below).
(c) TERMINATION FOR CAUSE; RESIGNATION BY EMPLOYEE WITHOUT GOOD REASON. The
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Company may terminate Employee's employment under this Agreement for Cause at
any time prior to the expiration of the Term, and Employee may resign without
Good Reason under this Agreement at any time prior to the expiration of the
Term. As used herein, "Cause" shall mean: (i) the plea of guilty or nolo
contendere to, or conviction for, the commission of a felony offense by
Employee; provided, however, that after indictment, the Company may suspend
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Employee from the rendition of services, but without limiting or modifying in
any other way the Company's obligations under this Agreement; (ii) a material
breach by Employee of a fiduciary duty owed to the Company; (iii) a material
breach by Employee of any of the covenants made by Employee in Section 2 below;
or (iv) the willful or gross neglect by Employee of the material duties required
by this Agreement. Before a cessation of Employee's employment shall be deemed
to be a termination of Employee's employment for Cause, (A) the Company shall
provide written notice to Employee that identifies the conduct described in
clauses (ii), (iii) or (iv) as applicable, and (B) in the event that the event
or condition is curable, Employee shall have failed to remedy such event or
condition within 30 days after Employee shall have received the written notice
from the Company described above. As used herein, "Good Reason" shall mean the
occurrence of any of the following without Employee's
written consent: (i) a material adverse change in Employee's title, duties,
operational authority, or reporting responsibilities from those in effect on the
Effective Date, (ii) a material reduction in Employee's Annual Base Salary or
target bonus percentage, except that any such reduction in target bonus
percentage pursuant to an across-the-board reduction applicable to executives of
the Company generally shall not constitute Good Reason under this Agreement,
(iii) a relocation of Employee's principal place of business more than 25 miles
from the Seattle, Washington metropolitan area, or (iv) (A) if a corporation
that is a publicly-traded affiliate of USAi either (1) becomes the owner,
whether directly or indirectly, of a majority of the combined voting power of
the then Outstanding Company Voting Securities or (2) controls the ability to
elect a majority of the directors of the Company (each, a "Controlling Affiliate
Corporation"), the occurrence of such event shall constitute a Change in Control
and Good Reason unless Employee is offered the position as the most senior
executive officer of the Controlling Affiliate Corporation or (B) if the Company
ceases to be a publicly traded entity, the occurrence of such event shall
constitute Good Reason, unless Employee is offered the position as the most
senior executive officer of the "Controlling Corporation" of the Company (i.e.,
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the entity owning the highest percentage of the then Outstanding Company Voting
Securities) and the Controlling Corporation is publicly-traded; provided, that
this clause (iv) shall be inapplicable with respect to a merger, consolidation,
recapitalization or other extraordinary business combination relating to the
capital stock or assets of USAi; provided, further, that a Liberty/Vivendi Event
shall not constitute Good Reason under this clause (iv). Notwithstanding the
foregoing, the acquisition by USAi of additional shares of stock of the Company,
including the acquisition of additional shares which would make the Company a
wholly-owned and non-publicly traded subsidiary of USAi, shall not constitute a
Change in Control or Good Reason or a breach under this Agreement, provided,
that, if the Company becomes a wholly-owned and non-publicly traded subsidiary
of USAi, (i) Employee shall remain as chief executive officer of the Company or
its successor, (ii) Employee shall report to the chief executive officer of USAi
and (iii) Employee's Company stock options shall vest or be converted into USAi
stock options. In the event of Employee's termination for Cause or resignation
without Good Reason, this Agreement shall terminate without further obligation
by the Company, except for the payment of any Accrued Obligations (as defined in
paragraph 1(f) below).
(d) TERMINATION BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR CAUSE;
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RESIGNATION BY EMPLOYEE FOR GOOD REASON. The Company may terminate Employee's
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employment under this Agreement without Cause at any time prior to the
expiration of the Term, and Employee may resign for Good Reason under this
Agreement at any time prior to the expiration of the Term. If Employee's
employment is terminated by the Company for any reason other than Employee's
death or Disability or for Cause, or if Employee resigns for Good Reason, then
(i) the Company shall pay Employee the Base Salary from the date of termination
of Employee's employment through the end of the Term over the course of the then
remaining scheduled Term pursuant to the Company's normal payroll practices (the
"Severance Period"); (ii) following the end of the fiscal year during which the
date of termination occurs, the Company shall pay Employee an amount equal to
the greater of (x) $133,000 or (y) the product of (A) Employee's annual bonus,
based on the satisfaction of performance goal formulas, and (B) a fraction, the
numerator of which is the number of days in the fiscal year in which the date of
termination occurs through the date of termination and the denominator of which
is 365; and (iii) the Company shall pay Employee within 30 days of the
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date of such termination in a lump sum in cash any Accrued Obligations (as
defined in paragraph 1(f) below). In addition, upon a termination of Employee's
employment without Cause or upon Employee's resignation for Good Reason,
Employee shall immediately vest in all Company stock options (and the USAi
Option) and such options shall remain exercisable for one year following the
date of termination. The payment to Employee of severance benefits in this
paragraph shall be subject to Employee's execution and non-revocation of a
general release of the Company and its affiliates in a form substantially
similar to that used for similarly situated executives of USAi and its
subsidiaries.
(e) MITIGATION; OFFSET. In the event of termination of Employee's
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employment prior to the end of the Term, in no event shall Employee be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable under this Section 1. If Employee obtains other employment
during the Severance Period, the amount of any payment or benefit provided for
under this Section 1 which has been paid to Employee shall be refunded to the
Company by Employee in an amount equal to any compensation earned by Employee as
a result of employment with or services provided to another employer during the
Severance Period, and all future amounts payable by the Company to Employee
during the Severance Period shall be offset by the amount earned by Employee
from another employer; provided that Employee shall not be required to return to
the Company an amount greater than the amount that he earns from such other
employer. For purposes of this Section 1(e), Employee shall have an obligation
to inform promptly the Company regarding Employee's employment status during the
Severance Period.
(f) ACCRUED OBLIGATIONS. As used in this Agreement, "Accrued Obligations"
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shall mean the sum of (i) any portion of Employee's accrued but unpaid Base
Salary through the date of death or termination of employment for any reason, as
the case may be; and (ii) any compensation previously earned but deferred by
Employee (together with any interest or earnings thereon) that has not yet been
paid.
2. CONFIDENTIAL INFORMATION; NON-SOLICITATION; AND PROPRIETARY RIGHTS.
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(a) CONFIDENTIALITY. Employee acknowledges that, while employed by the
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Company, Employee will occupy a position of trust and confidence.
Employee shall not, except as may be required to perform Employee's duties
hereunder or as required by applicable law, disclose to others, use, copy,
transmit, reproduce, summarize, quote or make commercial, whether directly or
indirectly, any Confidential Information regarding the Company or any of its
subsidiaries or affiliates. Employee will also take reasonable steps to
safeguard such Confidential Information and prevent its loss, theft, or
inadvertent disclosure to third persons. This Section 2 shall apply to
Confidential Information acquired by Employee whether prior or subsequent to the
execution of this Agreement. "Confidential Information" shall mean information
about the Company or any of its subsidiaries or affiliates, and their clients
and customers that is not disclosed by the Company or any of its subsidiaries or
affiliates for financial reporting purposes and that was learned by Employee in
the course of employment by the Company or any of its subsidiaries or
affiliates, including (without limitation) any proprietary knowledge, trade
secrets, data, formulae, information and client and customer lists and all
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papers, resumes, and records (including computer records) of the documents
containing such Confidential Information. Employee acknowledges that such
Confidential Information is specialized, unique in nature and of great value to
the Company and its subsidiaries or affiliates, and that such information gives
the Company and its subsidiaries or affiliates a competitive advantage. Employee
agrees to deliver or return to the Company, at the Company's request at any time
or upon termination or expiration of Employee's employment or as soon thereafter
as possible, all documents, computer tapes and disks, records, lists, data,
drawings, prints, notes and written information (and all copies thereof)
furnished by the Company and its subsidiaries or affiliates or prepared by
Employee in the course of Employee's employment by the Company and its
subsidiaries or affiliates. As used in this Agreement, "affiliates" shall mean
any company controlled by, controlling or under common control with the Company.
(b) NON-COMPETITION. During the Term and for a period of 24 months beyond
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Employee's date of termination of employment for any reason (the "Restricted
Period"), Employee shall not, directly or indirectly, engage in or become
associated with a Competitive Activity. For purposes of this Section 2(b): (i) a
"Competitive Activity" means any business or other endeavor, in any county of
any state of the United States or a comparable jurisdiction in Canada or any
other country, of a kind being conducted by the Company or any of its
subsidiaries or affiliates in such jurisdiction as of the Effective Date or at
any time thereafter; and (ii) Employee shall be considered to have become
"associated with a Competitive Activity" if Employee becomes directly or
indirectly involved as an owner, principal, employee, officer, director,
independent contractor, representative, stockholder, financial backer, agent,
partner, advisor, lender, or in any other individual or representative capacity
with any individual, partnership, corporation or other organization that is
engaged in a Competitive Activity; provided, however, that if the Restricted
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Period would extend beyond the Severance Period (under circumstances in which
Employee had received severance benefits under Section 1(d)), the Restricted
Period shall end upon the expiration of the Severance Period, unless the Company
pays Employee at a rate of $100,000 per year (prorated on a monthly basis) to
the extent it determines to continue the Restricted Period beyond the Severance
Period. Notwithstanding the foregoing, Employee may make and retain investments
during the Restricted Period, for investment purposes only, in less than five
percent (5%) of the outstanding capital stock of any publicly-traded corporation
engaged in a Competitive Activity if stock of such corporation is either listed
on a national stock exchange or on the NASDAQ National Market System if Employee
is not otherwise affiliated with such corporation.
(c) NON-SOLICITATION OF EMPLOYEES. During the Restricted Period, Employee
-----------------------------
shall not, without the prior written consent of the Company, directly or
indirectly, recruit or solicit the employment or services of (whether as an
employee, officer, director, agent, consultant or independent contractor) any
employee, officer, director, agent, consultant or independent contractor of the
Company or any of its subsidiaries or affiliates (except for employment or
hiring by the Company or any of its subsidiaries or affiliates); provided that a
general solicitation of the public for employment shall not constitute
solicitation of employees hereunder.
4
(d) NON-SOLICITATION OF CUSTOMERS. During the Restricted Period, Employee
-----------------------------
shall not, without the prior written consent of the Company, directly or
indirectly, solicit Business of, attempt to do Business with, or do Business
with any Customers of the Company or any of its subsidiaries or affiliates, or
encourage (regardless of who initiates the contact) any such Customers to use
the services of any competitor of the Company or any of its subsidiaries or
affiliates. For purposes of this Section, (i) "Business" means any business or
other endeavor of a kind being conducted by the Company or any of its
subsidiaries or affiliates as of the Effective Date or at any time during the
Restricted Period and (ii) "Customer" means an individual or entity with whom
the Company has done Business during, or within the 18 months preceding, the
Restricted Period.
(e) PROPRIETARY RIGHTS; ASSIGNMENT. All Employee Developments shall be made
------------------------------
for hire by Employee for the Company or any of its subsidiaries or affiliates.
"Employee Developments" means any idea, discovery, invention, design, method,
technique, improvement, enhancement, development, computer program, machine,
algorithm or other work or authorship that (i) relates to the business or
operations of the Company or any of its subsidiaries or affiliates, or (ii)
results from or is suggested by any undertaking assigned to the Employee or work
performed by the Employee for or on behalf of the Company or any of its
subsidiaries or affiliates, whether created alone or with others, during or
after working hours. All Confidential Information and all Employee Developments
shall remain the sole property of the Company or any of its subsidiaries or
affiliates. The Employee shall acquire no proprietary interest in any
Confidential Information or Employee Developments developed or acquired during
the Term. To the extent the Employee may, by operation of law or otherwise,
acquire any right, title or interest in or to any Confidential Information or
Employee Development, the Employee hereby assigns to the Company all such
proprietary rights. The Employee shall, both during and after the Term, upon the
Company's request, promptly execute and deliver to the Company all such
assignments, certificates and instruments, and shall promptly perform such other
acts, as the Company may from time to time in its discretion deem necessary or
desirable to evidence, establish, maintain, perfect, enforce or defend the
Company's rights in Confidential Information and Employee Developments.
(f) COMPLIANCE WITH POLICIES AND PROCEDURES. During the Term, Employee
---------------------------------------
shall adhere to the policies and standards of professionalism set forth in the
Company's Policies and Procedures as they may exist from time to time.
(g) REMEDIES FOR BREACH. Employee expressly agrees and understands that
-------------------
Employee will notify the Company in writing of any alleged breach of this
Agreement by the Company, and the Company will have 30 days from receipt of
Employee's notice to cure any such breach.
Employee expressly agrees and understands that the remedy at law for
any breach by Employee of this Section 2 will be inadequate and that damages
flowing from such breach are not usually susceptible to being measured in
monetary terms. Accordingly, it is acknowledged that upon Employee's violation
of any provision of this Section 2, in addition to any remedy of law available
to the Company, the Company shall be entitled to obtain from any court of
competent jurisdiction immediate injunctive relief and obtain a temporary order
restraining any threatened or further breach as well as an equitable accounting
of all profits or benefits arising out of such violation. Nothing in this
Section 2 shall be deemed to limit the Company's remedies at law or in equity
for any breach by Employee of any of the provisions of this Section 2, which may
be pursued by or available to the Company.
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(h) SURVIVAL OF PROVISIONS. The obligations contained in this Section 2
----------------------
shall, to the extent provided in this Section 2, survive the termination or
expiration of Employee's employment with the Company and, as applicable, shall
be fully enforceable thereafter in accordance with the terms of this Agreement.
If it is determined by a court of competent jurisdiction in any state that any
restriction in this Section 2 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of that state.
3. TERMINATION OF PRIOR AGREEMENTS. Except as specifically provided
-------------------------------
otherwise herein, this Agreement constitutes the entire agreement between the
parties, and as of the Effective Date, terminates and supercedes any and all
prior agreements and understandings (whether written or oral) between the
parties with respect to the subject matter of this Agreement, including the
Former Agreement and, as of the date hereof, this Agreement shall replace and
supercede the Term Sheet. Employee acknowledges and agrees that neither the
Company nor anyone acting on its behalf has made, and is not making, and in
executing this Agreement, the Employee has not relied upon, any representations,
promises or inducements except to the extent the same is expressly set forth in
this Agreement. Employee hereby represents and warrants that by entering into
this Agreement, Employee will not rescind or otherwise breach any agreement or
other legal obligation with any other person or entity.
4. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its nature and
----------------------
none of the parties hereto shall, without the consent of the others, assign or
transfer this Agreement or any rights or obligations hereunder; provided that
the Company may assign this Agreement to any of its affiliates; provided further
that, in the event of the merger, consolidation, transfer, or sale of all or
substantially all of the assets of the Company with or to any other individual
or entity, this Agreement shall, subject to the provisions hereof, be binding
upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company hereunder, and all references herein to the "Company" shall refer to
such successor.
5. WITHHOLDING. The Company shall make such deductions and withhold such
-----------
amounts from each payment and benefit made or provided to Employee hereunder, as
may be required from time to time by applicable law, governmental regulation or
order.
6. HEADING REFERENCES. Section headings in this Agreement are included
------------------
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose. References to "this Agreement" or the use of
the term "hereof" shall refer to these Standard Terms and Conditions and the
Employment Agreement attached hereto, taken as a whole.
7. WAIVER; MODIFICATION. Failure to insist upon strict compliance with any
--------------------
of the terms, covenants, or conditions hereof shall not be deemed a waiver of
such term, covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance
6
with, any right or power hereunder at any one or more times be deemed a
waiver or relinquishment of such right or power at any other time or times. This
Agreement shall not be modified in any respect except by a writing executed by
each party hereto.
8. SEVERABILITY. In the event that a court of competent jurisdiction
------------
determines that any portion of this Agreement is in violation of any law or
public policy, only the portions of this Agreement that violate such law or
public policy shall be stricken. All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect.
Further, any court order striking any portion of this Agreement shall modify the
stricken terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
9. INDEMNIFICATION. The Company shall indemnify and hold Employee harmless
---------------
for acts and omissions in Employee's capacity as an officer, director or
employee of the Company to the maximum extent permitted under applicable law,
and shall provide Employee with directors' and officers' insurance to the extent
provided to executive officers of the Company; provided, however, that neither
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the Company, nor any of its subsidiaries or affiliates shall indemnify Employee
for any losses incurred by Employee as a result of acts described in Section
1(c) of this Agreement.
10. COUNTERPARTS. This Agreement may be executed in several counterparts,
------------
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument. Employee expressly understands and
acknowledges that the Agreement to which these Standard Terms and Conditions are
attached is incorporated herein by reference, deemed a part of these Standard
Terms and Conditions and is a binding and enforceable part of these Standard
Terms and Conditions. References to "Standard Terms and Conditions" or the use
of the term "hereof" shall refer to the Standard Terms and Conditions and the
Agreement to which these Standard Terms and Conditions are attached, taken as a
whole.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and delivered by its duly authorized officer and Employee has executed and
delivered this Agreement on February 7, 2002.
EXPEDIA, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and General
Counsel
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
8