Exhibit 10.2
31 May 2011
TRAVELPORT INTERNATIONAL LIMITED
and
▇▇▇▇▇▇ ▇▇▇▇▇▇
DATE: 31 May 2011
PARTIES
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1. |
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Travelport International Limited (formerly Galileo International Ltd) (the
“Company”) (a wholly owned indirect subsidiary of Travelport Limited), the registered
office of which is at Axis Park, 10 Hurricane Way, ▇▇▇▇▇▇▇, Berks SL3 8US, UK or such
other location the Company determines to be its corporate headquarters; |
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2. |
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Solely for purposes of clause 4.9 hereof, Travelport Limited, a Bermudan
Corporation, (“Travelport”); |
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3. |
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▇▇▇▇▇▇ ▇▇▇▇▇▇ (the “Executive”). |
IT IS AGREED AS FOLLOWS:
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In this agreement the following definitions apply: |
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“Agent” means all and any travel agents with whom the Executive had contact or about whom he
became aware of or informed in the course of his employment: |
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(a) |
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who shall at the Termination Date be negotiating with a Group Company to be
involved in the supply of Restricted Products or Restricted Services; or |
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(b) |
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who has at any time during the period of twelve months prior to the
Termination Date been involved in the supply of Restricted Products or Restricted
Services. |
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“Associated Company” means any company 20 per cent or more of the equity share capital of
which is owned directly or indirectly by the Company (applying the provisions of section 838
of the Income and Corporation Taxes Act 1988 in the determination of ownership), or any
other Group Company or any company to which the Company (or any other Group Company) renders
managerial, administrative or technical services; |
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“Board” means the board of directors of Travelport from time to time including any committee
to which he is appointed; |
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“Business Day” means a day other than a Saturday, Sunday or a day which is a Public Holiday
in the United Kingdom; |
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“Businesses” means all and any trades or other commercial activities of any Group Company |
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(a) |
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with which the Executive shall have been concerned or involved to any
material extent at any time during the period of twelve months prior to the
Termination Date and which the relevant Group Company shall carry on with a view to
profit; |
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“Client” means any person with whom the Executive had material contact or about whom he
became aware of or informed in the course of his employment: |
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(a) |
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who shall at the Termination Date be negotiating with a Group Company for
the supply of any Restricted Products or the provision of any Restricted Services; or |
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(b) |
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to whom a Group Company shall at the Termination Date supply any
Restricted Products or provide any Restricted Services; |
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“Confidential Business Information” means all and any Corporate Information, Marketing
Information, Technical Information and other information (whether or not recorded in
documentary form or on computer disk or tape) which is of a commercially sensitive or
confidential nature and any information in respect of which the Company or any Group Company
owes an obligation of confidentiality to any third party: |
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(a) |
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which the Executive shall acquire or has acquired at any time during his
employment by the Company but which does not form part of the Executive’s own stock in
trade; and |
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(b) |
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which is not readily ascertainable to persons not connected with the
Company either at all or without a significant expenditure of labour, skill or money; |
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“Corporate Information” means all and any information (whether or not recorded in
documentary form or on computer disk or tape) relating to the business methods, corporate
plans, management systems, finances, maturing new business opportunities or research and
development projects of any Group Company; |
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“Distributor” means any person with whom the Executive had material contact or about whom he
became aware of or informed in the course of his employment |
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(a) |
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who pursuant to a contract provides sales and marketing services to a
Group Company in any territory of the world at the Termination Date; or |
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(b) |
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who shall at the Termination Date be negotiating with a Group Company to
provide sales and marketing services to a Group Company in any territory of the world; |
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“Employee” means any person who is or was, at any time during the period of twelve months
ending on the Termination Date, employed or engaged by a Group Company in a senior
management, senior sales or senior technical position and who, by reason of such a position,
possesses any Confidential Business Information; |
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“Employment” means the Executive’s employment under this agreement; |
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“Group” means all Group Companies from time to time; |
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“Group Company” means any Subsidiary, Holding Company or Ultimate Holding Company of the
Company (or any Associated Company of the Company) from time to time and the Company; |
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“Holding Company” means a holding company as defined in section 1159 of the Companies ▇▇▇
▇▇▇▇; |
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“Intellectual Property” means any invention, which is wholly or partly the property of the
Company (or any other Group Company), design or copyright work which is devised, developed
or created by the Executive (whether alone or in conjunction with any other person) in the
course of his employment by the Company (or any other Group Company); |
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“Marketing Information” means all and any information (whether or not recorded in
documentary form or on computer disk or tape) relating to the marketing or sales of any
past, present or future product or service of a Group Company including, without limitation,
sales targets and statistics, market research reports, sales techniques, price lists,
discount structures, advertising and promotional material, the names, addresses, telephone
numbers, contact names and identities of clients and potential clients, commercial,
technical contacts of and suppliers and potential suppliers or consultants to a Group
Company, the nature of their business operations, their requirements for any product or
service sold or purchased by a Group Company and all confidential aspects of their business
relationship with the relevant Group Company; |
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“Material Interest” means: |
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(a) |
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the holding of any position as director, officer, employee, consultant,
partner, principal or agent; |
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(b) |
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the direct or indirect control or ownership (whether jointly or alone) of
any shares (or any voting rights attached to them) or debentures save for the ownership
for investment purposes only of not more than 3 per cent of the issued ordinary share
of any company whose shares are listed on any Recognised Investment Exchange (as
defined in section 285 of the Financial Services and Markets Act 2000); or |
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(c) |
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the direct or indirect provision of any financial assistance; |
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“Named Competitor” means any business or entity that competes with the Company, any Group
Company or any part of Travelport’s business with which the Executive is involved. |
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“Restricted Period” means the period of twelve months commencing on the Termination Date
unless the Company shall have exercised its right to place the Executive on “garden leave”
under clause 3.4 of this Agreement in which case such period of twelve months shall be
reduced by such period as the Executive shall have spent on “garden leave”; |
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“Restricted Products” means all and any products of a kind which shall be dealt in,
produced, marketed or sold by a Group Company in the ordinary course of the Businesses; |
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“Restricted Services” means all and any services of a kind which shall be provided by a
Group Company in the ordinary course of the Businesses; |
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“Subsidiary” means a subsidiary as defined in section 1159 of the Companies ▇▇▇ ▇▇▇▇; |
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“Supplier” means any person with whom the Executive had material contact or about whom he
became aware of or informed in the course of his employment: |
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(a) |
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who shall at the Termination Date be negotiating with a Group Company to
supply goods and/or services; or |
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(b) |
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who, at the time of the Termination Date supplies goods and / or services
to a Group Company; |
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“Technical Information” means all and any trade secrets, source codes, computer programs,
inventions, designs, know-how discoveries, technical specifications and other technical
information (whether or not recorded in documentary form or on computer disk or tape)
relating to the creation, production or supply of any past, present or future product or
service of a Group Company; and |
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“Termination Date” means the date on which the Executive’s employment hereunder terminates
and references to “following the Termination Date” shall be construed as from and including
such date of termination. |
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“Ultimate Holding Company” shall mean a Holding Company that is not also a Subsidiary. |
| 2.1.1 |
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the contents and clause headings are included for convenience only and do not affect its
construction; |
| 2.1.2 |
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words denoting the singular include the plural and vice versa; and |
| 2.1.3 |
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words denoting one gender include each gender and all genders. |
| 2.2 |
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In this agreement, unless otherwise specified or the context otherwise requires, a
reference to: |
| 2.2.1 |
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a person is to be construed to include a reference to an individual, firm, partnership,
company, corporation, association, organisation and trust (in each case whether or not having
a separate legal personality); |
| 2.2.2 |
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a document, instrument or agreement (including, without limitation, this agreement) is a
reference to any such document, instrument or agreement as modified, amended, varied,
supplemented or novated from time to time; |
| 2.2.3 |
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a clause or schedule is a reference to a clause of or schedule to this agreement; and a
reference to this agreement includes its schedule; |
| 2.2.4 |
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a statutory provision is to be construed as a reference to such a provision as amended,
consolidated or re-enacted from time to time and to any orders, regulations, instruments or
other subordinate legislation made under the relevant |
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statute (except to the extent that any
amendment, consolidation or re-enactment coming into force after the date of this agreement
would increase or extend the liability of any party to this agreement to any other party). |
| 3.1 |
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The Executive is employed by the Company as President and CEO of Travelport at the Senior
Executive Leadership Level (“SEL”) or its equivalent as defined by Travelport or its
successors from time to time. The content of the Executive’s job description may be varied
from time to time subject to any variations being reasonable, mutually agreed and subject to
no diminution in conditions of employment or status. |
| 3.2 |
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The Executive’s employment hereunder shall continue (subject as hereinafter mentioned)
until terminated by either party giving to the other not less than twelve (12) months’ prior
written notice. |
| 3.3 |
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If full notice is not given under clause 3.2 the Company will pay salary and benefits in
lieu of notice or any unexpired period of notice whether notice is given by the Company or the
Executive. Any payment in lieu shall consist solely of a sum equivalent to (i) the Executive’s
salary (at the rate applicable at the date notice is given); (ii) other cash remuneration and
benefits (excluding, for the avoidance of doubt, any bonus under clause 8) and (iii) the cash
equivalent of any entitlement to non-cash benefits (which shall be the cost to the Company of
providing such non-cash benefits), in each case for the notice period or any unexpired period
of notice and shall be subject to such deductions for tax and national insurance as the
Company is required to make. |
| 3.4 |
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If either the Executive or the Company serve notice on the other to terminate the
Executive’s employment the Company may, in its absolute discretion, require the Executive to
take ‘garden leave’ for all or part of the remaining period of his employment. |
| 3.5 |
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If the Executive is asked to take garden leave he: |
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(a) |
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Upon request by the Company or any Group Company, resign from all offices,
committees, trusteeships or positions held by him in the Company (or any other Group
Company), including without limitation the Board, and transfer all nominee shares held
by him in the Company (or any other Group Company) without compensation for loss of
office or otherwise and, should he fail to do, the Board or its designee is irrevocably
authorized to appoint some person in his name and on his behalf to do, execute and
perform any acts, deeds, documents or things necessary to effect such resignation or
transfer; |
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(b) |
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may be required to carry out none or some only of his duties during the
remaining period of his employment; |
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(c) |
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must return to the Company all documents and other materials (including
copies) belonging to any Group Company containing Confidential Business Information; |
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(d) |
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may not without the permission of the Company contact or attempt to contact
in a business context any Employee, Client, Supplier or professional |
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adviser of the
Company or any Group Company that the Executive is reasonably expected to know/have
known in the course of his duties with the Company; |
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(e) |
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may not attend his place of work or any other premises of any Group Company
unless requested to do so. |
| 3.6 |
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During any period of garden leave the Executive will continue to receive his full salary,
other remuneration and benefits. |
| 3.7 |
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The Executive’s period of continuous employment with the Group commenced on 13 May 1991. |
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During the Employment the Executive will: |
| 4.1 |
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faithfully and diligently perform such duties within the scope of the Executive’s normal
duties as President and CEO of Travelport and exercise such powers (not only for the Company
but also any other Group Company) as may be assigned to or vested in him from time to time by
the Board and will use his best endeavours to promote the interests of the Company, subject
to the terms of clause 3.1; |
| 4.2 |
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give to the Board or such persons as it from time to time nominates such information
regarding the affairs of the Company or any Group Company as the Board may require and at all
times conform to the reasonable and lawful directions of the Board; |
| 4.3 |
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devote the whole of his working time, attention and skills to the business and affairs of
the Company (or such other Group Company, if any, to which the Executive may from time to time
with his consent be seconded, subject to clause 3.1) and will not, save as a representative of
the Company or with the consent of the Board, be directly or indirectly engaged or concerned
in the conduct of any other business whether or not competing in any respect with the business
from time to time of the Company or any Group Company nor hold any other office or employment
(whether paid or unpaid) nor will the Executive be directly or indirectly interested in any
such business save through his holding, or being interested in, less than 3 per cent of the
issued securities of any class of any listed company; |
| 4.4 |
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without prejudice to the generality of clause 4.3, conform to normal hours of work which
are 9.00am to 5.00pm United Kingdom time, Monday to Friday inclusive and without additional
payment to such other hours of work as may from time to time reasonably be required of him for
the proper performance of his duties under this agreement. The seniority of this position
exempts the Executive from the maximum working week of 48 hours over a 17 week reference
period as specified in the Working Time Regulations. Other stipulations of the aforementioned
Regulations apply; |
| 4.5 |
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be located at ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ and shall travel to
such other offices or places as from time to time directed by the Board but the Executive will
not normally be obliged, except for visits for reasonable periods in the ordinary course of
his duties, to work or to reside outside the United Kingdom. Any
special provisions relating to employment outside the United Kingdom for a period of |
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one month or more will be mutually agreed with the Executive separately and reasonable terms and
conditions for such a move agreed in good faith and with as much notice as reasonably
possible. |
| 4.6 |
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if the Company deems it necessary for the Executive to undergo at the Company’s expense
any medical examinations or tests, the Executive will be required to undergo such examinations
with a Registered Medical Practitioner who will make recommendations to the Board and retain
the medical report; |
| 4.7 |
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at all times consider in what manner and by what new methods or devices the products,
services, processes, equipment or systems of the Company or any Group Company might be
improved; |
| 4.8 |
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without prejudice to the Executive’s statutory obligations in relation to share dealings
and his share holdings, comply with the terms of the Model Code of the London Stock Exchange
Limited and with such other code of practice as the Company (or its Holding Company) may from
time to time adopt and impose upon employees whether in respect of dealings in shares of the
Company (or any other Group Company) or otherwise. |
| 4.9 |
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The Executive shall also serve as a member of the Board without additional compensation. |
| 5.1 |
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During the Employment the Company will: |
| 5.1.1 |
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pay a salary at the annual rate of £550,000 effective June 1, 2011 (or such higher rate
as may from time to time be agreed or determined by the Company and notified to the Executive)
which salary will be payable by monthly instalments in arrears (by direct credit transfer)
less all deductions required by law or under this agreement and accrue from day to day and be
payable by the last day of every month and will be deemed to include all directors’ and other
fees or emoluments receivable from the Company; |
| 5.1.2 |
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review the Executive’s remuneration once every 12 calendar months usually in March of
each year; |
| 5.1.3 |
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subject to agreement with the Executive be entitled, at any time and in any event on
termination however it arises, to deduct from the Executive’s remuneration under this
agreement or from any other sums owed or owing by the Company (or any other Group Company) to
the Executive any moneys due from him to the Company or any Group Company in respect of
outstanding loans, advances, overpayments, or loss of property of the Company and excess
holiday taken. |
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Upon production of appropriate receipts and vouchers all reasonable expenses (including
travel and hotel expenses) properly incurred by him in the performance of his duties will be
refunded to the Executive provided that such expenses are
submitted within a reasonable time from the date they were incurred and the |
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Executive
complies with the Company’s rules and procedures from time to time in force in respect of
expenses. |
| 6.2 |
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Pension & Cash Allowance |
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(a) |
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The Company operates a defined contribution pension plan. While the
Executive remains eligible for the Group Personal Pension Plan (or another personal
pension plan of the Executive’s choosing or the equivalent cash compensation), the
Company’s contributions are capped at the lesser of (a) 15% of the Executive’s
then-current annual base salary (currently £550,000 under clause 5.1.1) or (b) the
maximum amount of the annual allowance permitted by HM Revenue & Customs without
additional tax (i.e. £50,000 per annum for the 2011-2012 tax year), to be contributed
monthly by the Company. The Company pension scheme is contracted in to the State
Earnings Related Pension Scheme and National Insurance contributions are payable
accordingly. |
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(b) |
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The Executive will receive a per annum cash allowance in an amount equal to
(a) 15% of his then-current annual base salary minus (b) the Company’s pension
contribution under clause 6.2(a), less all required deductions and withholdings, to be
paid monthly. Based on the Executive’s current base annual salary of £550,000 and the
current 2011-2012 tax year cap of £50,000, this annual cash allowance will be £32,500
((£550,000 x 15%) — £50,000), which will be prorated for the remainder of the 2011-2012
tax year. For the avoidance of doubt, this amount is not part of the Executive’s
annual base salary and therefore shall not be used as the basis for calculating bonus
(including under clause 8.1), the termination payment under clause 9.1, pension under
clause 6.2(a) or any other entitlements. |
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The Executive is entitled to thirty (30) days per year in addition to Public Holidays in the
United Kingdom. The holiday year runs from 01 January to 31 December each year. |
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Before any annual leave is taken, the Executive must apply to the Board or its designee for
approval and comply with all other rules as set out in the Annual Leave Policy. The Company
reserves the right to alter the terms of the Annual Leave Policy from time to time with a
minimum of one month’s notice to each employee to whom it applies, except in relation to the
number of days per annum of Holiday Entitlement. |
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The Executive will be paid at the full basis rate of salary for all holidays, including
Public Holidays, taken within the Holiday Allowance limit specified above under Holiday
Entitlement. This is subject to the conditions specified within the Annual Leave Policy
being complied with. |
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If, at the effective date of Employment termination, there is still annual leave due to the
Executive, an accrued payment will be made in respect of those days on a pro |
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rata basis at the same rate of pay as described in clause 6.4 above. This payment will be
in addition to any other payments due from the Company. |
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If, however, the Executive leaves the Company’s service without giving due notice in
accordance with this contract of employment, no entitlement to accrued holiday pay will
exist although any accrued statutory holiday pay outstanding will be paid. |
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If at the effective date of Employment termination, annual leave has been taken in excess of
what is due, the excess will be deducted from the Executive’s final pay, subject to
agreement with the Executive. |
| 6.6 |
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Absence through Sickness or Injury |
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If the Executive is absent through sickness or injury, the Company’s Sickness Absence and
Pay Policy and Procedure must be complied with. This document is obtainable from the HR
department. |
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During absence for illness (including absence due to injury or other disability) the
Executive will be entitled to receive a sick pay allowance in accordance with, and subject
to, the provisions set out in the Company’s Sickness Absence and Pay Policy and Procedure
under the heading ‘Sick Pay’. |
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The Company reserves the right to alter the terms of the Company’s Sickness Absence and Pay
Policy and Procedure from time to time with a minimum of one month’s notice to each employee
to whom it applies, save that any change to the amount of sick pay or to the length of time
sick pay is paid shall only be made with the Executive’s consent. |
| 6.8 |
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Private Medical Insurance |
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The Company will pay subscriptions on the Executive’s behalf (and for the Executive’s spouse
and children under the age of 18 years) to such medical benefits insurance scheme as the
Board or its designee may from time to time decide, consistent with SEL level cover in other
Travelport owned companies, and subject to the rules of the scheme. |
| 6.9 |
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Life Assurance Benefit |
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Life Assurance Benefit is payable to the Executive’s beneficiary(s) should the Executive die
whilst in the service of the Company, subject to certain criteria but which will be no less
than four (4) times the then prevailing annual salary of the Executive. Payments under the
Scheme are subject to approval by the Trustees and the rules of the scheme. Details are
available from the HR department. |
| 6.10 |
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Permanent Health Insurance |
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The Executive will be covered under the Company’s Permanent Health Insurance Scheme (the
“PHI Scheme”), subject to the terms of the policy of the PHI Scheme. Further details are
available from the HR department. Acceptance into the scheme and payments under it are
subject to the Executive’s continued employment by the Company and the rules of the scheme. |
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| 7.1 |
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The Executive is eligible to receive the benefit of a company car allowance. This
allowance is £20,000 per annum and will be paid in monthly instalments along with the
Executive’s salary. This allowance is taxable but not pensionable and will not be included in
the basis for any bonus calculations. |
| 7.2 |
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It is a condition of the Employment that the Executive will at all times be the holder of
a current UK driving licence and will notify the Company immediately in the event that he
loses his licence. The Executive will bear any fines incurred for motoring offences in respect
of the motor car whether during private use or in the performance of his duties under this
agreement. |
| 7.3 |
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The Executive is eligible to receive the benefit of a company fuel card allowance. This
allowance is £3,000 per annum. This allowance is taxable but not pensionable and will not be
included in the basis for any bonus calculations. The allowance will be reviewed on an annual
basis. |
| 8.1 |
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The Executive qualifies for the discretionary Travelport bonus plan which is payable
annually on a base of 150% of his earned per annum salary, which is his bonus at target. This
percentage is determined by the Company and Travelport performance as a whole. As such it may
vary. Exceptionally the bonus could be less than the specified amount where business and
individual performance is below expectation. Notwithstanding that the bonus plan is
discretionary, the Company will procure that discretion will not be exercised in such a way
that would result in the Executive being treated on a different basis from other employees at
his level of seniority; |
| 8.2 |
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The bonus scheme is designed to retain and motivate employees. Should Employment
terminate before the end of a bonus year, or the Executive is under notice or on garden leave
at that time, the Company will procure that the Executive shall be paid bonus on a pro rata
basis up to and including the Termination Date notwithstanding any rules of the bonus plan.
Further, the Company will procure that any rules of the bonus plan that provide for the
Executive to be ineligible for a bonus if he is entitled to any other incentive or commission
plan payments or if he is on garden leave or under notice of termination, will not apply to
the Executive; |
| 8.3 |
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Any bonus payment will be subject to applicable taxes and National Insurance but will not
be pensionable. |
| 8.4 |
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The Executive is also eligible at the SEL or its equivalent level to receive the
following perquisites according to the rules of the applicable plan or policy. These are: |
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8.4.1 |
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Financial advice and other professional services as
arranged for SEL executives of Travelport based in Europe of up to £5,000 (five
thousand pounds) per annum; |
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8.4.2 |
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The provision of a company vehicle up to an annual lease
cost of £9,000 (nine thousand pounds); and |
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8.4.3 |
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An allowance of up to £5,000 (five thousand pounds) per
annum for personal travel or travel related expenditure subject to the
prevailing travel allowance policy as operated by Travelport in Europe which is
reimbursable against receipts. |
| 8.5 |
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The benefits outlined in clause 8.4 above will include income tax relief on the
difference between basic rate income tax and the Executive’s actual rate of income tax charged
in the United Kingdom to a maximum of 28% (twenty eight percent) differential. Such relief
will be paid to the Executive in cash on a monthly basis. The benefits outlined in clause 8.4
above are not and shall not be pensionable. |
| 9.1 |
|
In the event that the Executive’s employment is terminated without cause by the Company,
Travelport, an Associated Company or an acquirer of Travelport’s business or assets or the
Executive resigns in circumstances where he is entitled to resign in response to a fundamental
breach of contract by the Company or Travelport (by way of non-exhaustive example only, it is
agreed that any reduction in Executive’s base annual salary and bonus opportunity under this
agreement that is not remedied by the Company within 30 days after written notice by Executive
shall constitute a fundamental breach of contract by the Company under this agreement), the
Executive will be eligible to receive the following additional benefits: |
| 9.1.1 |
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a lump sum severance payment that is equivalent to twice the Executive’s then annual
base salary and 100% of his target annual bonus payable at the time of termination; and |
| 9.1.2 |
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vesting of any equity-based awards then held by Executive with respect to Travelport or
any Group Company as, and to the extent, described in and subject to the definitive
documentation related to such awards. |
| 9.2 |
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Any payments made to or received by the Executive under this clause 9 will be subject to
tax and National Insurance and any other deductions as may be required by law. |
| 10. |
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CONFIDENTIAL BUSINESS INFORMATION |
| 10.1 |
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The Executive shall not either during the continuance of the Executive’s employment or at
any time thereafter: |
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(a) |
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disclose or communicate to any person or permit or enable any person to
acquire any Confidential Business Information other than for any legitimate purposes of
a Group Company; or |
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(b) |
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use or attempt to use any of the Confidential Business Information in any
manner which may injure or cause loss either directly or indirectly to any Group
Company or its Clients or may be likely to do so or for any purpose other than in the
discharge of The Executive’s duties hereunder; or |
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(c) |
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sell or seek to sell to anyone Confidential Business Information other than
for any legitimate purposes of a Group Company; or |
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(d) |
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obtain or seek to obtain any financial advantage direct or indirect from
the disclosure of Confidential Business Information other than for a Group Company. |
| 10.2 |
|
During the continuance of the Executive’s employment and at all times thereafter the
Executive shall use his reasonable endeavours to prevent the unauthorised publication or
disclosure of the Confidential Business Information or any part thereof. |
| 10.3 |
|
This Clause shall not apply to:- |
| |
(a) |
|
information or knowledge which comes into the public domain other than in
consequence of the Executive’s default; |
| |
(b) |
|
any information which the Executive has acquired other than through the
performance of his duties for a Group Company; |
| |
(c) |
|
any information which is required to be disclosed by the Executive by order
of a court of competent jurisdiction or an appropriate regulatory authority or
otherwise required by law. |
| |
10.4 |
|
Nothing in this agreement shall preclude the Executive from making a protected disclosure
for the purposes of the Public ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇. |
| 11.1 |
|
The Executive shall not during his employment by the Company make otherwise than for the
benefit of a Group Company any form of record on whatever medium relating to any Group Company
(“the Records”). |
| 11.2 |
|
The Executive shall not either during his employment or thereafter use or permit to be
used any of the Records otherwise than for the benefit of a Group Company. |
| 11.3 |
|
The Executive shall not, without the prior authority of the Company, remove from the
Company’s premises or copy or allow others to copy the contents of any document, computer
disk, tape or other tangible item which contains any Confidential Business Information or
which belongs to any Group Company. |
| 11.4 |
|
The Executive shall return to the Company upon request and, in any event, at the
Termination Date all documents, computer disks and tapes and other tangible items in his
possession or under his control which belong to any Group Company or which contain or refer to
any Confidential Business Information. |
| 11.5 |
|
If so requested by the Company, the Executive shall delete all Confidential Business
Information from any computer disks, tapes or other re-usable material in his possession or
under his control and destroy all other documents and tangible items in his possession or
under his control which contain or refer to any Confidential Business Information. |
| 12.1 |
|
The Executive acknowledges that in the course of his employment he is likely to obtain
knowledge of Group Companies’ trade secrets and other confidential information and will have
dealings with Clients, Suppliers, Agents and Distributors |
Page 13
| |
|
(collectively referred hereafter as Business Partners) and that it is fair and reasonable
for the Company to seek to protect the interests of the Group by the provisions of this
Clause. |
| 12.2 |
|
The Executive shall not directly or indirectly: |
| |
(a) |
|
at any time during the Restricted Period hold any Material Interest in a
business which is either wholly or partially in competition with any of the Businesses; |
| |
(b) |
|
at any time during the Restricted Period hold any Material Interest in a
Named Competitor; |
| |
(c) |
|
at any time during the Restricted Period, seek in any capacity whatsoever any
business, orders or custom for any Restricted Products or Restricted Services from any
Client with whom he shall have dealt at any time during the period of twelve months
prior to the Termination Date or, if Executive has been placed on ‘garden leave’ under
clause 3.4, the period of twelve (12) months prior to commencing ‘garden leave’; |
| |
(d) |
|
at any time before or after the Termination Date, induce or seek to induce by
any means involving the disclosure or use of Confidential Business Information any
Business Partner to cease dealing with a Group Company or to restrict or vary the terms
upon which it deals with the relevant Group Company; |
| |
(e) |
|
at any time during the Restricted Period be employed or engaged by any person
who at the time of the Termination Date is a Business Partner for the purpose of
carrying out the same kind of work as the Executive shall have performed for that Client
during the period of twelve months prior to the Termination Date or, if Executive has
been placed on ‘garden leave’ under clause 3.4, the period of twelve (12) months prior
to commencing ‘garden leave’; |
| |
(f) |
|
at any time during the Restricted Period approach or solicit any Supplier,
Agent or Distributor with whom the Executive shall have dealt at any time during the
period of twelve (12) months prior to the Termination Date or, if Executive has been
placed on ‘garden leave’ under clause 3.4, the period of twelve (12) months prior to
commencing ‘garden leave’, for any purpose which could reasonably be in competition with
the Company; |
| |
(g) |
|
at any time during the Restricted Period endeavour to entice away from the
relevant Group Company or knowingly employ or engage the services of or procure or
assist any third party so to employ or engage the services of any person who is an
Employee with whom the Executive shall have dealt at any the time during the period of
twelve (12) months prior to the Termination Date or, if Executive has been placed on
‘garden leave’ under clause 3.4, the period of twelve (12) months prior to commencing
‘garden leave’; |
| |
(h) |
|
at any time during the Restricted Period endeavour to entice away from the
relevant Group Company or knowingly employ or engage the services of or procure or
assist any third party so to employ or engage the services of any person who shall have
been providing consultancy services to the relevant |
Page 14
| |
|
|
Group Company at the time of the
Termination Date and who the Executive shall have had material contact in the course of
his employment during the
period of twelve (12) months prior to the Termination Date or, if the Executive has
been placed on ‘garden leave’ under clause 3.4, the period of twelve (12) months
prior to commencing ‘garden leave’ and who: |
| |
(i) |
|
by reason of his engagement as a consultant by such Group
Company is likely to be able to assist a business in or intending to be in
competition with such Group Company so to compete; or |
| |
(ii) |
|
by reason of his engagement as a consultant by such Group
Company is likely to be in possession of any Confidential Business Information;
or |
| |
(j) |
|
at any time after the Termination Date represent himself or permit himself
to be held out by any person, firm or company as being in any way connected with or
interested in the Company or any Group Company. |
| 12.3 |
|
Whilst the restrictions referred to in this Clause are regarded by the parties hereto as
fair and reasonable restrictions to be imposed on the Executive, it is hereby declared that
the wording of this Clause is severable and so much of the same as a court of competent
jurisdiction may regard as unreasonable shall (so far as the same is possible) be deleted. |
| 12.4 |
|
If after the Executive’s employment ends he proposes to enter into any contract of
employment, appointment or engagement with a third party, he agrees that he will before doing
so bring clauses 10, 11, 12 and 15 of this agreement to the attention of any proposed new
employer or organisation appointing him. |
| 13. |
|
TERMINATION PROVISIONS |
| 13.1 |
|
The Executive acknowledges and agrees that (notwithstanding that the personal contact is
between him and representatives of the Business Partners) the relationship with them is one
which exists with the Company and is valuable to the Company and that, so far as concerns
those Business Partners whose business is handled by the Executive, it is capable of being
damaged inter alia upon the cessation for any reason of the contract of employment between the
Company and the Executive. For the purposes of permitting the Company to ensure so far as
possible that any such damage is minimised, and so as to preserve the Company’s relationship
with its Business Partners after the termination of the contract of employment, and to ensure
the continued proper servicing of the requirements of such Business Partners the Executive
hereby undertakes generally to co-operate with the Company and comply with the instructions of
the Board or its designee in securing the handover of the affairs of any such Client, Agent,
Supplier or Distributor to any other employee(s) designated by the Company in a manner which
will or is designed to ensure that the Company’s relationship with such Client is preserved
and that the Client continues to receive a proper service from the Company; and acknowledges
that any breach of the above undertakings may cause loss or damage to the Company for which it
may reasonably seek compensation or injunctive relief from him. |
| 13.2 |
|
With a view to ensuring that the Executive’s departure can be arranged with the minimum
of inconvenience or disruption to the business of the Company and its |
Page 15
| |
|
relationship with its
Clients and its other employees, the Executive undertakes to mutually agree with the Board or
its designee the timing and manner of any
communication about his departure, and to refrain from informing any of the Executive’s
colleagues (excluding the Board) about the proposed cessation of his employment hereunder,
other than within the agreed communication plan. |
| 13.3 |
|
The Executive acknowledges the right of the Company to monitor and control the
performance of its employees and ensure the proper servicing of the requirements of its
Clients, and acknowledges the fiduciary obligations attaching to his position. |
| 14.1 |
|
The Company may terminate the Employment by summary notice if the Executive has: |
| 14.1.1 |
|
been in serious breach of his obligations as a director or become disqualified or
prohibited by law from being or acting as a director or from being directly or indirectly
concerned in the promotion, formation or management of a company or from carrying out any of
the duties or functions he is employed under this agreement to carry out; or |
| 14.1.2 |
|
become bankrupt or made any arrangement or composition with his creditors or taken
advantage of any statute from time to time in force affording relief for instalment debtors;
or |
| 14.1.3 |
|
been convicted of any criminal offence (save for road traffic or other minor offences)
or became a patient within the meaning of the Mental Health ▇▇▇ ▇▇▇▇; or |
| 14.1.4 |
|
been guilty of gross misconduct in the course of the Employment or committed any serious
breach or persistent breach (after warnings) or any failure of his duties or obligations under
this agreement; or |
| 14.1.5 |
|
been guilty of conduct tending to bring himself or the Company (or any other Group
Company) into disrepute; or |
| 14.1.6 |
|
solicited or attempted to solicit or entice away any Client, Distributor, Supplier,
Employee or consultant of the Company (or any other Group Company). |
| 14.2 |
|
The Company may terminate the Employment by giving 12 months notice if the Executive has
been incapacitated by reason of Ill-Health, accident or otherwise from performing his duties
under this agreement for a total of 183 or more consecutive days in the preceding 12 months
save that the Company may not terminate the Employment in this way if the Executive is in
receipt of sick pay, or receipt of benefits under the PHI Scheme, or he has made a claim (or a
claim has been made on his behalf) under such PHI Scheme and a decision is awaited from the
relevant insurers, or he has appealed (or an appeal has been made on his behalf) against a
decision of the insurers under such PHI Scheme and the result of that appeal is awaited. It is
the intent of the Company to comply with PHI Scheme requirements, while not unintentionally
extending employment rights. It is not the intention of the Company to inhibit payment under
PHI when reliant on continued employment with the Company by terminating such employment but
that equally it is not the intention of the Company where PHI is being paid also to pay
regular salary under the contract. |
Page 16
| 14.3 |
|
Upon the termination of the Employment howsoever arising the Executive will: |
| 14.3.1 |
|
resign from all offices, committees, trusteeships or positions held by him in the
Company (or any other Group Company), including without limitation the Board, and transfer all
nominee shares held by him in the Company (or any other Group Company) without compensation
for loss of office or otherwise and, should he fail to do so, the Board or its designee is
irrevocably authorised to appoint some person in his name and on his behalf to do, execute and
perform any acts, deeds, documents or things necessary to effect such resignation or transfer; |
| 14.3.2 |
|
deliver (or, if he is dead, of unsound mind or bankrupt, then his personal
representatives or such other persons as may be appointed to administer his estate and affairs
will deliver) up to the Company or its authorised representative all property including
(without limitation) all documents, records, keys, correspondence, discs, tapes, telephones,
credit cards or other items in his possession or under his control which relate in any way to
the business or affairs or customers of the Company (or any other Group Company) or are the
property of the Company (or any other Group Company) and all extracts or copies of them
regardless of the medium on which such extracts or copies are stored or held; and |
| 14.3.3 |
|
not at any time after the termination of the Employment wrongfully represent himself as
being a director of or employed by or connected with the Company (or any other Group Company)
nor make or publish any untrue or misleading statement or comment about the Company (or any
other Group Company) or their respective officers and employees. |
| 15. |
|
INTELLECTUAL PROPERTY |
| 15.1 |
|
All copyright, design rights, database rights, trade marks, and any other intellectual
property rights (other than patents) in any software, databases, specifications, manuals,
prototypes, records, documents, (including all material stored in computer readable form),
drawings, designs, business ideas or methods and any other material or work (the “Materials”)
of any description that is capable of protection under the intellectual property laws (other
than patent law) or laws of confidence of any country which is made, developed, created,
devised or designed (whether alone or with any other person) by the Executive in the course
of his employment will be the property of and will belong to the Company unless otherwise
agreed in writing by the Company. |
| 15.2 |
|
The Executive agrees that he will use the Materials only for the purpose of the
Company’s business and that he will return the Materials and all copies and extracts from the
Materials, to the Company on demand at any time and without demand on the termination of his
employment, howsoever arising. |
| 15.3 |
|
The Executive shall promptly disclose full details of all inventions, discoveries,
processes or formulae or any other matter which is capable of patent protection under the
intellectual property laws of any country which is made, created, developed, or devised by
him in the course of his employment (“Inventions”) in writing to a Director of the Company,
and shall if requested by the Company deliver to the Company all copies and material
representations of such Inventions in his possession, custody or control. |
Page 17
| 15.4 |
|
To the extent that under the mandatory laws of any country an Invention or any patent
or other rights therein belongs to him, the Executive shall on request by the Company
negotiate with the Company in good faith for the assignment or licence of the Invention and
such rights to the Company. |
| 15.5 |
|
All other Inventions and all other rights therein shall belong to the Company, and, to
the extent not already legally owned by the Company, shall be held on trust for the Company,
and at the Company’s request and cost the Executive shall execute any documents and do all
things necessary to substantiate the Company’s ownership thereof and to obtain registration
or protection thereof in any country. |
| 15.6 |
|
The Executive irrevocably appoints the Company to be his attorney in his name, and on
his behalf: |
| 15.6.1 |
|
to execute any instrument, to do any thing, and generally to use his name for the
purpose of giving the Company (or its nominee) the full benefit of the provisions of clauses
15.1 to 15.5 above; and |
| 15.6.2 |
|
to give to any third party a certificate in writing (signed by a director or secretary
of the Company) confirming that any instrument or act falls within the authority conferred by
this clause; such a certificate will be deemed to be conclusive evidence that this is the
case. |
| 15.6.3 |
|
Save as provided above, the Executive shall keep all Inventions and all details thereof
confidential to himself and any lawyer or patent agent instructed by him. He shall not
without the Company’s consent apply for protection or registration in any country of any
Invention belonging to the Company and shall promptly inform the Company if he applies for
protection or registration of an Invention belonging to him in any country. |
| 16. |
|
RULES, POLICIES AND PROCEDURES |
| |
|
The Executive must comply at all times with the Company’s rules policies and procedures
relating to equal opportunities, harassment, health and safety, e-mail and internet use,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and all other rules and procedures introduced by the Company from time to
time provided they are reasonable. Both parties agree to comply with the Company
disciplinary and grievance procedures. Copies of all rules, policies and procedures appear
in the UK policies posted on the Company’s Intranet. For the avoidance of doubt such rules,
policies and procedures are not incorporated by reference into this contract and they may be
changed, replaced or withdrawn at any time at the discretion of the Company. Breach of the
Company rules, policies or procedures may result in disciplinary action. |
| 17.1 |
|
The Executive agrees that personal data (including sensitive data) relating to him which
has been or is in the future obtained by the Company may be held and processed by the Company
(and where necessary its agents or appointed third parties) either by computer or manually for
any purpose relating to the administration, management and operation of his employment, or in
relation to the Company’s legal obligations or business needs. |
Page 18
| 17.2 |
|
The Group has offices in various countries throughout the world and it may be necessary
for one or more of the Group’s overseas offices to have access to information held about the
Executive by the Company in the UK. However it is only intended by the Company that
information about the Executive will be used by the Group’s overseas offices for the purpose
of enabling the Group to deal with personal issues connected with his employment, including
advising relevant statutory authorities in order to obtain a work permit or visa or assisting
in his secondment to an overseas office or for pay roll purposes. The Executive agrees that
the Company may where appropriate transfer personal data (including sensitive data) relating
to him to the Group’s overseas offices. |
| 17.3 |
|
The Executive agrees and gives authorisation that his company electronic mail and
computing resources will be accessible to the company without any further prior consent during
his employment and where appropriate after leaving the company. All user ID and passwords
combinations may be reset for access in appropriate business circumstances. |
| |
|
For the purposes of the Telecommunications (Lawful Business Practice) (Interception of
Communications) Regulations 2000 and the Human Rights ▇▇▇ ▇▇▇▇, the Executive acknowledges
that the Company may monitor and/or record communications which he makes in the course of
his employment, so far as it is lawful for the Company to do so. In this clause,
“communications” include, without limitation, communications made by telephone, e-mail and
fax, or over the internet. |
| 19.1 |
|
This agreement takes effect on 1 June 2011 in substitution for the Service Agreement
signed by and between the Executive and Galileo International Ltd. (now known as Travelport
International Limited) in March 2007, and the 28 March 2011 letter agreement between the same
parties , and all other previous agreements and arrangements whether written, oral or implied
between the Company, and Group Company or their Affiliates and the Executive relating to the
employment of the Executive and all such agreements and arrangements shall be deemed to have
been terminated by mutual consent as from the date of commencement of this agreement;
provided, however, that this agreement shall not supersede any documents related to any equity
granted to the Executive by the Company or any Group Company, including without limitation
under the TDS Investor (Cayman) L.P. 2006 Interest Plan, which remain in full force and
effect. |
| 19.2 |
|
The Executive represents and warrants that he is not a party to any agreement, contract
(whether of employment or otherwise) or understanding which would in any way restrict or
prohibit him from undertaking or performing any of the duties in accordance with this
agreement. |
Page 19
| 20.1 |
|
Subject to the prevailing severance policy in force at the time, the Executive will have
no claim against the Company (or any other Group Company) arising out of the termination of
this agreement if: |
| 20.1.1 |
|
termination is by reason of reconstruction or amalgamation whether by winding up the
Company or otherwise, and the Executive is offered employment with any company, concern or
undertaking resulting from such reconstruction or amalgamation and the parties agree that this
is of substantially the same nature to his appointment under this agreement and is on terms
which when taken as a whole are no less favourable to the Executive than those contained in
this agreement; or |
| 20.1.2 |
|
in relation to any provision in any articles of association, agreement or arrangement
which has the effect of requiring the Executive to sell or give up any shares, securities,
options or rights at any price or which causes any options or other rights granted to him to
become prematurely exercisable or to lapse. |
| 20.2 |
|
No failure or delay to exercise, or other relaxation or indulgence granted in relation
to, any power, right or remedy under this agreement of either party shall operate as a waiver
of it or impair or prejudice it nor shall any single or partial exercise or waiver of any
power, right or remedy preclude its further exercise or the exercise of any other power, right
or remedy. |
| 20.3 |
|
There are no collective agreements in force which affect this agreement. |
| 20.4 |
|
The parties recognise that during the normal course of his employment, the Executive will
be required to make statements, directly or indirectly, written or oral, to, and/or provide
material for publication by, television, radio, film or other similar media and/or write
article(s) for the press or otherwise for publication on matters relating to the business and
affairs of the Company (or any other Group Company) and/or matters relating to any customer,
client or connection of the Company or any other Group Company). The Executive however
recognises that such activities should be agreed with the Board or its designee on either a
case by case or “blanket” basis according to the type of activity and explicitly that where
comment is to be made on the financial performance of the Group Company such comment will need
the prior approval of the Board or its designee. |
| 20.5 |
|
This agreement may be executed in 2 counterparts, each of which shall be deemed an
original and which shall together constitute one and the same document. |
| 20.6 |
|
If this agreement is executed in 2 counterparts, it shall be deemed to be delivered and
shall have effect when a) each party has signed a counterpart of this deed; b) each party has
handed over such counterpart to the other party to this deed; and c) each of the counterparts
has been dated. |
| 20.7 |
|
The Company acknowledges and declares itself trustee of the obligations and covenants
given in this agreement insofar as they are expressed to be for the benefit of any other Group
Company and holds them on trust for the absolute benefit of any |
Page 20
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such Group Company and the Executive covenants with the Company in its capacity as such
trustee to observe and perform each of such obligations and covenants. |
| 20.8 |
|
No variation of this agreement will be effective unless agreed in writing by or on behalf
of both parties. |
| 21.1 |
|
Each party to this agreement may give any notice or other communication under or in
connection with this agreement by letter or facsimile transmission addressed to the other
party. The address for service for the Executive shall be the address provided to the Company
and reflected in its records or such other address within the United Kingdom for service as
the Executive may from time to time notify to the Company for the purposes of this clause and
the address for service for the Company shall be its registered office from time to time. |
| 21.2 |
|
Any notice or other communication will be deemed to be served: |
| 21.2.1 |
|
if personally delivered, at the time of delivery and, in proving service, it shall be
sufficient to produce a receipt for the notice signed by or on behalf of the addressee; |
| 21.2.2 |
|
if by letter, at noon on the Business Day after such letter was posted and, in proving
service, it shall be sufficient to prove that the letter was properly stamped first class
addressed and delivered to the postal authorities; and |
| 21.2.3 |
|
if by facsimile transmission, at the time and on the day of transmission, and, in
proving service, it shall be sufficient to produce a transmission report from the sender’s
facsimile machine indicating that the facsimile was sent in its entirety to the recipient’s
facsimile number. |
| 21.2.4 |
|
Details for service of any notice or other communication on the Company are as follows: |
▇▇▇▇ ▇▇▇▇
Chief Administrative Officer & General Counsel
Travelport
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
| 22.1 |
|
This agreement, and all disputes or claims arising out of or in connection with it, shall
be governed by and construed in accordance with English law. |
| 22.2 |
|
The parties to this agreement irrevocably and unconditionally agree that the High Court
of Justice in England shall have exclusive jurisdiction over all disputes or claims arising
out of or in connection with this agreement. |
Page 21
IN WITNESS of which this document has been duly signed as a deed and delivered on the date written
at the beginning of this deed:
Please sign and return both copies of this agreement to me.
Yours sincerely,
/s/ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President — Human Resources
Attorney-in-Fact, Travelport International Limited
Solely for purposes of clause 4.9 hereof
TRAVELPORT LIMITED
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By: |
/s/ ▇▇▇ ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇ ▇▇▇▇▇▇▇ |
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Title: |
EVP Human Resources |
|
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IN WITNESS of which this document has been duly signed by ▇▇▇▇▇▇ ▇▇▇▇▇▇ as a deed and delivered on
the date written at the beginning of this deed:
Signed by
▇▇▇▇▇▇ ▇▇▇▇▇▇: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
in the presence of:
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Witness: |
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Signature:
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/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Name: |
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▇. ▇▇▇▇▇▇▇▇▇ |
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Work Address: |
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Travelport, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ |
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
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Date: |
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31st
May 2011 |
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Page 22