EXHIBIT 10.9


 





 


July 26, 2007


 


Bahman Koohestani


500 W.Madison


Chicago, IL


 


Dear Bahman:


 


As a member of the Orbitz Worldwide, Inc. (“Orbitz”)
Senior Leadership Team and a key part of the successful initial public
offering of Orbitz (collectively, with its subsidiaries, “the Company”), I am
pleased to provide you with this letter agreement (“agreement”) that outlines
certain terms and conditions of your employment with the Company.


 


In order to be eligible to receive benefits provided to
you herein, you must sign and return an original of this agreement to my
attention by no later than August 13, 2007.   Please note that this letter does not take
effect until executed by both parties.


 


This agreement supersedes the April 6th,
2006 letter agreement and any and all prior agreements, written or oral,
between you and the Company relating to the subject matter herein, all of which
are null and void upon your execution of this agreement. This agreement
contains the entire agreement between you and the Company concerning the
subjects contained in this agreement, with the exception of any documents
concerning equity, confidentiality, non-competition, non-solicitation and other
post-employment restrictive covenants. By signing below, you agree to comply
with the attached addendum to this agreement concerning non-competition,
non-solicitation, confidentiality and other obligations, including those
following your employment with the Company.


 


Your annual salary will be $325,000.00, with a
bi-weekly pay rate of $12,500.00. You are eligible to participate in the Orbitz
Global Bonus Plan (“the Plan”) provided that you meet our performance measures
or such other criteria as the Company determines in its sole discretion and
subject to the terms of the Plan. The Plan currently provides for a target
payment of 75% of your eligible earnings (“target bonus”) based on achievement
of company financial objectives, business unit performance and individual
performance. Bonus payment is subject to the approval of the Orbitz Board of
Directors and/or Compensation Committee.


 


In addition, as
previously agreed with you, the Company will continue to ease your commute
between Chicago and Toronto, Canada, as follows:


 


1.               The Company will reimburse you up to $2500 per month
after taxes through August 1st, 2007. This housing allowance is
to cover your Chicago-based housing and is in lieu of relocation benefit until
you relocate. Following the


 

















 


end
of this reimbursement, you will be eligible for relocation in accordance with
the Company’s Relocation Policy, 

Plan A.


 


2.               Until your relocation, the Company will also reimburse
air travel for you (not any family members) for a monthly commute to and from
Toronto, Canada when you are unable to use a barter card. The value of the
round trip airfare between Chicago and Toronto is estimated at approximately
$400 for each round trip.


 


3.               The Company will provide tax assistance to you by grossing
up any taxes on items #1 and #2, above.


 


In the event both that
(1) your employment is terminated by the Company (other than for Cause, as
defined below) at any time following the effective date of this letter or you
resign due to a Constructive Termination (as defined below) within one (1) year
following a Change in Control (as defined below) and (2) you execute (and
do not revoke) a separation and general release agreement (waiving all legal
claims against the Company) and a restrictive covenant agreement under which you
will agree not to compete against the Company, and not to solicit the Company’s
employees and customers, in each case for a period of twelve (12) months
following your termination of employment, each in such standard form as
provided by the Company, you will be eligible to receive the following benefits
(in lieu of any severance or separation benefits under any and all other
severance plans, policies and agreements of the Company):


 


•                  a lump sum severance payment equal to one year  of your then current annual rate of base salary;


 


•                  a lump sum severance payment equal to your then current
annual target bonus;


 


•                  a lump sum severance
payment equal to your target bonus for the year in which your employment
terminates, pro-rated based upon the number of days you were employed with the
Company during the year of termination and for which you have not otherwise
received or been eligible for a bonus, and in lieu of any other bonus for the
year of termination, except as set forth in this agreement;


 


•                  continuation of your
health plan coverage through the end of the month in which your last date of
employment occurs. Thereafter, you will be eligible to continue health plan
coverage pursuant to the terms of the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”). If you elect to continue health plan coverage
pursuant to COBRA, the Company will subsidize your COBRA payments for the first
twelve (12)  months so that you will pay the
same monthly premiums as active employees for the same coverage; provided,
however, that if you are eligible for another group health plan coverage prior
to the end of this period, the Company shall not be responsible for any further
payments; provided, further, however, that the Company may, in its sole
discretion, provide you with a lump sum payment in lieu of providing a COBRA
subsidy. Thereafter, you will be responsible for the full payment of any COBRA
premiums through the remainder of your eligibility;


 


•                  outplacement benefits
pursuant to Company policy; and


 

















 


All amounts
discussed herein are subject to applicable withholding taxes. If the Company
determines at the time of the your termination of employment that it is
necessary or appropriate for any of the payments specified above to be delayed
in order to avoid additional tax, interest and/or penalties under Section 409A
of the Internal Revenue Code (“Section 409A”), then the payments, as
applicable, shall be made on the earliest practicable date or dates permitted
under Section 409A without the imposition of any additional tax, interest
and/or penalties.


 


Per Company policy,
this letter is not intended as, nor should it be considered, an employment
contract for a definite or indefinite period of time. As you know, employment
with the Company is at will, and either you or the Company may terminate
employment at any time, with or without cause.


 


Your signature below will indicate your understanding
and acceptance of these terms.


 


Sincerely,


 


	
  /s/ Katherine Andreasen

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Katherine Andreasen

  	
   

  	
   

  
	
  SVP, Human Resources

  	
   

  	
   

  
	
  Orbitz Worldwide, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Understood and Agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Bahman Koohestani

  	
   

  	
   

  	
  08/13/07

  	
   

  
	
  Bahman Koohestani

  	
   

  	
  Date

  	
   

  	
   

  
								



 

















 


ADDENDUM TO LETTER AGREEMENT:


 


1.             Definitions


 


(a)   For purposes of the agreement, “Cause” shall mean (A) your failure
substantially to perform your duties to the Company (other than as a
result of total or partial incapacity due to disability) for a period of 10
days following receipt of written notice from any Company by you of such
failure; provided that it is understood that this clause (A) shall not
apply if a Company terminates your employment because of dissatisfaction with
actions taken by you in the good faith performance of your duties to the
Company; (B) theft or embezzlement of property of the Company or
dishonesty in the performance of your duties to the Company; (C) an act or
acts on your part constituting (x) a felony under the laws of the United
States or any state thereof or (y) a crime involving moral turpitude; (D) your
willful malfeasance or willful misconduct in connection with your duties or any
act or omission that is materially injurious to the financial condition or business
reputation of the Company or its affiliates; or (E) your breach of the
provisions of any agreed-upon non-compete, non-solicitation or confidentiality
agreements agreed to with the Company.


 


(b)   For purposes of this agreement, “Change in Control” shall be as defined
in the Orbitz Worldwide, Inc. 2007 Equity and Incentive Plan.


 


(c)   For purposes of the agreement, “Constructive
Termination” shall be deemed to have occurred upon (A) any material
reduction in your base salary or target bonus (excluding any change in value of
equity incentives or a reduction affecting substantially all similarly situated
executives); (B) the failure of the Company to pay compensation or
benefits when due; (C) the primary business office for you being relocated
by more than 50 miles; or (D) a material and sustained diminution to your
duties and responsibilities as of the date of the IPO; provided that any
of the events described in clauses (A)-(D) of this definition shall
constitute a Constructive Termination only if the Company fails to cure such
event within 30 days after receipt by the Company’s Board of Directors from you
of written notice of the event which constitutes a Constructive Termination; provided,
further, that a “Constructive Termination” shall cease to exist for an
event on the 60th day following the later of its occurrence or your
knowledge of such occurrence, unless you have given the Company written notice
of such occurrence prior to the 60th day.


 


2.             Restrictive Covenants


 


(a)   Non-Competition


 


(i) 
From the date hereof while employed by the Company and for a twelve (12) month period
following the date you cease to be employed by the Company (the “Restricted
Period”), irrespective of the cause, manner or time of any termination, you shall
not use your status with any Company to obtain loans, goods or services from
another organization on terms that would not be available to you in the absence
of your relationship to the Company.


 


(ii) 
During the Restricted Period, you shall not make any statements or perform any
acts intended to or which may have the effect of advancing the interest of


 

















 


any Competitors of the Company or in any way injuring
the interests of the Company and the Company shall not make or authorize any
person to make any statement that would in any way injure the personal or
business reputation or interests of you; provided however, that, nothing herein
shall preclude the Company or you from giving truthful testimony under oath in
response to a subpoena or other lawful process or truthful answers in response
to questions from a government investigation; provided, further, however, that
nothing herein shall prohibit the Company from disclosing the fact of any
termination of your employment or the circumstances for such a termination. For
purposes of this agreement, the term “Competitor” means any enterprise or
business that is engaged in, or has plans to engage in, at any time during the
Restricted Period, any activity that competes with the businesses conducted
during or at the termination of your employment, or then proposed to be
conducted, by the Company in a manner that is or would be material in relation
to the businesses of the Company or the prospects for the businesses of the
Company (in each case, within 100 miles of any geographical area where the
Company manufactures, produces, sells, leases, rents, licenses or otherwise
provides its products or services). During the Restricted Period, you, without
prior express written approval by the Orbitz Board of Directors, shall not (A) engage
in, or directly or indirectly (whether for compensation or otherwise) manage,
operate, or control, or join or participate in the management, operation or
control of a Competitor, in any capacity (whether as an employee, officer,
director, partner, consultant, agent, advisor, or otherwise) or (B) develop,
expand or promote, or assist in the development, expansion or promotion of, any
division of an enterprise or the business intended to become a Competitor at
any time after the end of the Restricted Period or (C) own or hold a
Proprietary Interest in, or directly furnish any capital to, any Competitor of
the Company. You acknowledge that the Company’s businesses are conducted
nationally and internationally and agree that the provisions in the foregoing
sentence shall operate throughout the United States and the world (subject to
the definition of “Competitor”).


 


(iii) 
During the Restricted Period, you, without express prior written approval from
the Orbitz Board of Directors, shall not solicit any members or the then
current clients of the Company for any existing business of the Company or
discuss with any employee of the Company information or operations of any
business intended to compete with the Company.


 


(iv) 
During the Restricted Period, you shall not interfere with the employees or
affairs of the Company or solicit or induce any person who is an employee of
the Company to terminate any relationship such person may have with the
Company, nor shall you during such period directly or indirectly engage, employ
or compensate, or cause or permit any Person with which you may be affiliated,
to engage, employ or compensate, any employee of the Company.


 


(v) 
For the purposes of this Agreement, “Proprietary Interest” means any legal,
equitable or other ownership, whether through stock holding or otherwise, of an
interest in a business, firm or entity; provided, that ownership of less than
5% of any class of equity interest in a publicly held company shall not be
deemed a Proprietary Interest.


 


(vi) 
The period of time during which the provisions of this section shall be in
effect shall be extended by the length of time during which you are in breach
of the terms hereof as determined by any court of competent jurisdiction on the
Company’s application for injunctive relief.


 

















 


(vii)  You agree that the restrictions contained in
this section are an essential element of the compensation you are granted
hereunder and but for your agreement to comply with such restrictions, the
Company would not have entered into this agreement.


 


(viii)  It is expressly understood and agreed that
although you and the Company consider the restrictions contained in this section to
be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this agreement is an unenforceable restriction against you, the
provisions of this agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in this agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding shall
not affect the enforceability of any of the other restrictions contained
herein.


 


(b)   Confidentiality


 


(i) 
You will not at any time (whether during or after your employment with the
Company) (x) retain or use for the benefit, purposes or account of you or any
other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or
provide access to any Person outside the Company (other than its professional
advisers who are bound by confidentiality obligations), any non-public,
proprietary or confidential information (including without limitation trade
secrets, know-how, research and development, software, databases, inventions,
processes, formulae, technology, designs and other intellectual property, information
concerning finances, investments, profits, pricing, costs, products, services,
vendors, customers, clients, partners, investors, personnel, compensation,
recruiting, training, advertising, sales, marketing, promotions, government and
regulatory activities and approvals) concerning the past, current or future
business, activities and operations of the Company and/or any third party that
has disclosed or provided any of same to the Company on a confidential basis (“Confidential
Information”) without the prior written authorization of the Orbitz Board of
Directors.


 


(ii) 
“Confidential Information” shall not include any information that is (i) generally
known to the industry or the public other than as a result of your breach of
this covenant or any breach of other confidentiality obligations by third
parties; (ii) made legitimately available to you by a third party without
breach of any confidentiality obligation; or (iii) required by law to be
disclosed; provided that you shall give prompt written notice to the
Company of such requirement, disclose no more information than is so required,
and cooperate, at the Company’s cost, with any attempts by the Company to
obtain a protective order or similar treatment.


 


(iii)  Except as required by law, you will not disclose
to anyone, other than your immediate family and legal or financial advisors,
the existence or contents of this agreement (unless this agreement shall be
publicly available as a result of a regulatory filing made by the Company); provided
that you may disclose to any prospective future employer the provisions of
this section of the agreement provided they agree to maintain the
confidentiality of such terms.


 





















 


(iv)  Upon termination of your employment with the
Company for any reason, you shall (x) cease and not thereafter commence use of
any Confidential Information or intellectual property (including without
limitation, any patent, invention, copyright, trade secret, trademark, trade
name, logo, domain name or other source indicator) owned or used by the
Company; (y) immediately destroy, delete, or return to the Company, at the
Company’s option, all originals and copies in any form or medium
(including memoranda, books, papers, plans, computer files, letters and other
data) in your possession or control (including any of the foregoing stored or
located in your office, home, laptop or other computer, whether or not Company
property) that contain Confidential Information or otherwise relate to the
business of the Company, except that you may retain only those portions of
any personal notes, notebooks and diaries that do not contain any Confidential
Information; and (z) notify and fully cooperate with the Company regarding the
delivery or destruction of any other Confidential Information of which you are or
becomes aware.


 


(c)   Intellectual Property


 


(i)  If you have created, invented, designed,
developed, contributed to or improved any works of authorship, inventions,
intellectual property, materials, documents or other work product (including
without limitation, research, reports, software, databases, systems,
applications, presentations, textual works, content, or audiovisual materials)
(“Works”), either alone or with third parties, prior to your employment by the
Company, that are relevant to or implicated by such employment (“Prior Works”),
you hereby grant the Company a perpetual, non-exclusive, royalty-free,
worldwide, assignable, sublicensable license under all rights and intellectual
property rights (including rights under patent, industrial property, copyright,
trademark, trade secret, unfair competition and related laws) therein for all
purposes in connection with the Company’s current and future business.


 


(ii)  If you create, invent, design, develop,
contribute to or improve any Works, either alone or with third parties, at any
time during your employment by the Company and within the scope of such
employment and/or with the use of any the Company resources (“Company Works”), you
shall promptly and fully disclose same to the Company and hereby irrevocably
assign, transfer and convey, to the maximum extent permitted by applicable law,
all rights and intellectual property rights therein (including rights under
patent, industrial property, copyright, trademark, trade secret, unfair
competition and related laws) to the Company to the extent ownership of any
such rights does not vest originally in the Company.


 


(iii)  You agree to keep and maintain adequate and
current written records (in the form of notes, sketches, drawings, and any
other form or media requested by the Company) of all Company Works. The
records will be available to and remain the sole property and intellectual
property of the Company at all times.


 


(iv)  You shall take all requested actions and execute
all requested documents (including any licenses or assignments required by a
government contract) at the Company’s expense (but without further
remuneration) to assist the Company in validating, maintaining, protecting,
enforcing, perfecting, recording, patenting or registering any of the Company’s
rights in the Prior Works and Company Works. If the Company is unable for any
other reason to secure your signature on any document for this purpose, then you
hereby irrevocably designate and appoint the Company and its


 

















 


duly authorized officers and agents as your agent and
attorney in fact, to act for and in your behalf and stead to execute any
documents and to do all other lawfully permitted acts in connection with the
foregoing.


 


(v)  You shall not improperly use for the benefit of,
bring to any premises of, divulge, disclose, communicate, reveal, transfer or
provide access to, or share with the Company any confidential, proprietary or
non-public information or intellectual property relating to a former employer
or other third party without the prior written permission of such third party. You
hereby indemnify, hold harmless and agree to defend the Company and its
officers, directors, partners, employees, agents and representatives from any
breach of the foregoing covenant. You shall comply with all relevant policies
and guidelines of the Company, including regarding the protection of
confidential information and intellectual property and potential conflicts of
interest. You acknowledge that the Company may amend any such policies and
guidelines from time to time, and that you remain at all times bound by their
most current version.


 


(d)   Specific
Performance


 


You acknowledge
and agree that the Company’s remedies at law for a breach or threatened breach
of any of the provisions of this section would be inadequate and the Company
would suffer irreparable damages as a result of such breach or threatened
breach. In recognition of this fact, you agree that, in the event of such a
breach or threatened breach, in addition to any remedies at law, the Company,
without posting any bond, shall be entitled to cease making any payments or
providing any benefit otherwise required by this agreement and obtain equitable
relief in the form of specific performance, temporary restraining order,
temporary or permanent injunction or any other equitable remedy which may then
be available. Without limiting the generality of the foregoing, neither party
shall oppose any motion the other party may make for any expedited
discovery or hearing in connection with any alleged breach of this section 2.


 


(e)   Cooperation
with Litigation


 


You agree
to cooperate with and make yourself readily available to Orbitz and its General
Counsel, as the Company may reasonably request, to assist it in any matter
regarding Orbitz and/or its affiliates, subsidiaries, and their predecessors,
including giving truthful testimony in any litigation or potential litigation
involving Orbitz and/or its affiliates, subsidiaries, and their predecessors,
over which you have knowledge or information. The Company will reimburse you
for any and all reasonable expenses reasonably incurred in connection with such
cooperation by you.


 


(f)   Survival


 


The
provisions of this section 2 shall survive the termination of your employment
for any reason.


 


3.             Miscellaneous


 


(a)  
Governing
Law  This agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, without regard
to conflicts of laws principles thereof.


 

















 


(b)  
Amendments  This agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.


 


(c)  
No
Waiver  The failure of a party to insist
upon strict adherence to any term of this agreement on any occasion shall not
be considered a waiver of such party’s rights or deprive such party of the
right thereafter to insist upon strict adherence to that term or any other term
of this agreement.


 


(d)  
Severability  In the event that any one or more of the
provisions of this agreement shall be or become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions of this agreement shall not be affected thereby.


 


(e)  
Assignment  This agreement,
and all of your rights and duties hereunder, shall not be assignable or delegable
by you. Any purported assignment or delegation by you in violation of the
foregoing shall be null and void ab initio and of no force and effect. This agreement may be
assigned by the Company to a person or entity which is an affiliate or a
successor in interest to substantially all of the business operations of the
Company. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such affiliate or
successor person or entity.


 


(f)  
Set Off; No
Mitigation. The Company’s obligation to pay you
the amounts provided and to make the arrangements provided hereunder shall be
subject to set-off, counterclaim or recoupment of amounts owed by you to the
Company. You shall not be required to mitigate the amount of any payment
provided for pursuant to this agreement by seeking other employment, taking
into account the post-employment restrictive covenants set forth above.