Exhibit
10.38


 


EXECUTION
COPY


 


EMPLOYMENT AGREEMENT

(Marsha
Williams; Chief Financial Officer, Orbitz Worldwide)


 


This EMPLOYMENT
AGREEMENT (the “Agreement”) dated as of July 11, 2007 by and among Orbitz
Worldwide, Inc. (the “Company”) and Marsha Williams (the “Executive”).


 


WHEREAS, the
Company desires to employ Executive and to enter into this Agreement;


 


WHEREAS, Executive
desires to accept such employment and enter into such an agreement;


 


NOW, THEREFORE, in
consideration of the premises and mutual covenants herein and for other good
and valuable consideration, the sufficiency of which is acknowledged, the
parties agree as follows:


 


1.       Term
of Employment. Subject to the provisions of Section 7 of this Agreement,
Executive shall continue to be employed by the Company or one of its
subsidiaries for a period commencing on July 11, 2007 and ending on July 11,
2010 (the “Employment Term”) on the terms and subject to the conditions set
forth in this Agreement; provided, however, that commencing with July 11, 2010 and
on each July 11 thereafter (each an “Extension Date”), the Employment Term
shall be automatically extended for an additional one-year period, unless the
Company or Executive provides the other party hereto 120 days prior written
notice before the next Extension Date that the Employment Term shall not be so
extended.


2.     Position.


 


(a)     During the Employment Term, Executive shall
serve as the Chief Financial Officer of the Company. In such position,
Executive shall have such duties and authority as shall be determined from time
to time by the Board of Directors of the Company (the “Board”) and the Chief
Executive Officer of the Company. If requested, Executive shall also serve as a
member of the Board without additional compensation.


 


(b)      During
the Employment Term, Executive will devote Executive’s full business time and
best efforts to the performance of Executive’s duties hereunder and will not
engage in any other business, profession or occupation for compensation or
otherwise which would conflict or interfere with the rendition of such services
either directly or indirectly, without the prior written consent of the Board; provided
that nothing herein shall preclude Executive, subject to the prior approval of
the Board (which is hereby given for the boards listed on the Exhibit A
attached hereto), from accepting appointment to or continuing to serve on any
board of directors or trustees of any business corporation or any charitable
organization; provided in each case, and in the aggregate, that such activities
do not conflict or interfere with the performance of Executive’s duties
hereunder or conflict with Section 8.


 

















 


3.       Base
Salary. During the Employment Term, the Company shall pay Executive a base
salary at the annual rate of $440,000, payable in regular installments in
accordance with the Company’s usual payment practices. Executive shall be
entitled to such increases in Executive’s base salary, if any, as may be
determined from time to time in the sole discretion of the Board. Executive’s
annual base salary, as in effect from time to time, is hereinafter referred to
as the “Base Salary.”


 


4.       Annual
Bonus. With respect to each fiscal year during the Employment Term,
Executive shall be eligible to earn an annual bonus award (an “Annual Bonus”)
of up to eighty percent (80%) of Executive’s Base Salary (the “Target”) based
upon the achievement of an annual EBITDA target established by the Board within
the first three months of each fiscal year during the Employment Term. The
Annual Bonus, if any, shall be paid to Executive within two and one-half (2.5)
months after the end of the applicable fiscal year.


 


5.       Employee
Benefits. During the Employment Term, Executive shall be entitled to
participate in the Company’s employee benefit plans (other than annual bonus
and incentive plans) as in effect from time to time (collectively “Employee
Benefits”), on the same basis as those benefits are generally made available to
other executives of the Company.


 


6.       Business
Expenses. During the Employment Term, reasonable business expenses incurred
by Executive in the performance of Executive’s duties hereunder shall be
reimbursed by the Company in accordance with Company policies.


 


7.     Termination.
The Employment Term and Executive’s employment hereunder may be terminated by
either party at any time and for any reason; provided that Executive will he
required to give the Company at least 30 days advance written notice of any
resignation of Executive’s employment. Notwithstanding any other provision of
this Agreement, the provisions of this Section 7 shall exclusively govern
Executive’s rights upon termination of employment with the Company and its
affiliates.


 


(a)   By the Company For Cause
or By Executive Other Than as a Result of a Constructive Termination.


 


(i)    The
Employment Term and Executive’s employment hereunder may be terminated by the
Company for Cause (as defined below) and shall terminate automatically upon
Executive’s resignation other than as a result of a Constructive Termination
(as defined in Section 7(c)); provided that Executive will be required to give
the Company at least 30 days advance written notice of a resignation other than
as a result of a Constructive Termination.


 


(ii)     For
purposes of this Agreement, “Cause” shall mean (A) Executive’s failure substantially
to perform Executive’s 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 Executive of such failure;
provided that it is understood that this clause (A) shall not apply if a
Company terminates Executive’s employment because of dissatisfaction with
actions taken by Executive in the good faith performance of Executive’s duties
to the Company, (B) theft or embezzlement of property of the Company or
dishonesty in the performance of Executive’s duties to the Company, other than
de minims conduct that would


 


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not typically result in
sanction by an employer of an executive in similar circumstances, (C)
conviction which is not subject to routine appeals of right or a plea of “no
contest” for (x) a felony under the laws of the United States or any state
thereof or (y) a crime involving moral turpitude for which the potential
penalty includes imprisonment of at least one year, (D) Executive’s willful
malfeasance or willful misconduct in connection with Executive’s duties or any
act or omission which is materially injurious to the financial condition or
business reputation of the Company or its affiliates, or (E) Executive’s breach
of the provisions of Sections 8 or 9 of this Agreement (excluding a breach of
Section 9(a) by a statement made by Executive in good faith in Executive’s
employment capacity); provided, however, that Executive’s refusal to provide a
certification in her capacity as the Company’s Chief Financial Officer in
connection with any periodic report or other documentation filed by the Company
under any applicable law, rule or regulation, shall not provide any basis for
Cause hereunder so long as the Executive reasonably and in good faith believed
that she could not provide such a certification.


 


(iii)    If
Executive’s employment is terminated by the Company for Cause, or if Executive
resigns other than as a result of a Constructive Termination, Executive shall
be entitled to receive:


 


(A)       the
Base Salary through the date of termination;


 


(B)       any
Annual Bonus carried, but unpaid, as of the date of termination for the
immediately preceding fiscal year, paid in accordance with Section 4 (except to
the extent payment is otherwise deferred pursuant to any applicable deferred
compensation arrangement with the Company);


 


(C)       reimbursement,
within 60 days following submission by Executive to the Company of appropriate
supporting documentation, for any unreimbursed business expenses properly
incurred by Executive in accordance with Company policy prior to the date of
Executive’s termination; provided claims for such reimbursement (accompanied by
appropriate supporting documentation) are submitted to the Company within 90
clays following the date of Executive’s termination of employment; and


 


(D)       such
Employee Benefits, if any, as to which Executive may be entitled under the
employee benefit plans of the Company (the amounts described in clauses (A)
through (D) hereof being referred to as the “Accrued Rights”).


 


Following such
termination of Executive’s employment by the Company for Cause or resignation
by Executive other than as a result of a Constructive Termination, except as
set forth in this Section 7(a)(iii), Executive shall have no further rights to
any compensation or any other benefits under this Agreement.


 


(b)     Disability
or Death.


 


(i)      The
Employment Term and Executive’s employment hereunder shall terminate upon
Executive’s death and may be terminated by the Company if Executive becomes
physically or mentally incapacitated and is therefore unable for a period of
nine (9) consecutive months or for an aggregate of twelve (12) months in any
eighteen (18) consecutive month period


 


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to perform
Executive’s duties (such incapacity is hereinafter referred to as “Disability”).
Any question as to the existence of the Disability of Executive as to which
Executive and the Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to Executive and the
Company. If Executive and the Company cannot agree as to a qualified
independent physician, each shall appoint such a physician and those two physicians
shall select a third who shall make such determination in writing. The
determination of Disability made in writing to the Company and Executive shall
be final and conclusive for all purposes of the Agreement and any other
agreement between any Company and Executive that incorporates the definition of
“Disability”.


 


(ii)     Upon termination of Executive’s employment
hereunder for either Disability or death, Executive or Executive’s estate (as
the case may be) shall be entitled to receive:


 


(A)       the
Accrued Rights;


 


(B)       a pro
rata portion of any Annual Bonus, if any, that Executive would have been
entitled to receive pursuant to Section 4 hereof in such year based upon the
percentage of the fiscal year that shall have elapsed through the date of
Executive’s termination of employment, payable when such Annual Bonus would
have otherwise been payable to Executive pursuant to Section 4 had Executive’s
employment not terminated; and


 


(C)      vesting
of any equity-based awards then held by Executive with respect to the Company
or its affiliates as, and to the extent, described in the definitive
documentation related to such awards.


 


Following
Executive’s termination of employment due to death or Disability, except as set
forth in this Section 7(b)(ii), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.


 


(c)     By the
Company Without Cause or Resignation by Executive as a result of Constructive
Termination.


 


(i)      The
Employment Term and Executive’s employment hereunder may be terminated by the
Company without Cause or by Executive’s as a result of a Constructive
Termination.


 


(ii)     For purposes of this Agreement, a “Constructive
Termination” shall be deemed to have occurred upon (A) any material reduction
in Executive’s Base Salary or Annual Bonus (excluding any change in value of
equity incentives or a reduction affecting substantially all similarly situated
executives), (B) failure of the Company or its affiliates to pay compensation
or benefits when due, (C) the primary business office for Executive being
relocated by more than 50 miles, (D) the Company’s election not to renew the
initial Employment Term or any subsequent extension thereof (except as a result
of Executive’s reaching retirement age, as determined by Company policy), or
not to assign this contract pursuant to section 11(E), or (E) a material and
sustained diminution to Executive’s duties and responsibilities as of the date
of this Agreement; provided that any of the events described in clauses
(A)-(E) of this Section 7(c)(ii) shall constitute a Constructive Termination
only if the Company fails to cure such event within


 


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30 days after receipt
from Executive 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 Executive’s knowledge thereof, unless Executive has given the
Company written notice thereof prior to such date.


 


(iii)    If
Executive’s employment is terminated by the Company without Cause (other than
by reason of death or Disability) or if Executive resigns as a result of a
Constructive Termination, Executive shall be entitled to receive:


 


(A)       the
Accrued Rights;


 


(B)       a pro
rata portion of any Annual Bonus, if any, that Executive would have been
entitled to receive pursuant to Section 4 hereof in such year based upon the
percentage of the fiscal year that shall have elapsed through the date of Executive’s
termination of employment, payable when such Annual Bonus would have otherwise
been payable to Executive pursuant to Section 4 had Executive’s employment not
terminated;


 


(C)      subject
to Executive’s continued compliance with the provisions of Sections 8 and 9,
continued payment of the Base Salary and Target Annual Bonus in accordance with
the Company’s normal payroll practices, as in effect on the date of termination
of Executive’s employment, for twelve months after the date of such
termination; provided that the aggregate amount described in this clause
(C) shall be reduced by the present value of any other cash severance benefits
payable to Executive under any other severance plans, programs or arrangements
of the Company or its affiliates; provided further, that such reduction
shall not include any payments made to Executive under any equity-based award
program; and


 


(D)     vesting
of any equity-based awards then held by Executive with respect to the Company
or its affiliates as, and to the extent, described in the definitive
documentation related to such awards.


 


Following
Executive’s termination of employment by the Company without Cause (other than
by reason of Executive’s death or Disability) or by Executive’s resignation as
a result of a Constructive Termination, except as set forth in this Section
7(c) (iii), Executive shall have no further rights to any compensation or any
other benefits under this Agreement.


 


(d)     Expiration
of Employment Term.


 


(i)      Election
Not to Extend the Employment Term. In the event either party elects not to
extend the Employment Term pursuant to Section 1, unless Executive’s employment
is earlier terminated pursuant to paragraphs (a), (b) or (c) of this Section 7,
Executive’s termination of employment hereunder (whether or not Executive
continues as an employee of the Company or its subsidiaries thereafter) shall
be deemed to occur on the close of business on the day immediately preceding
the next scheduled Extension Date and Executive shall be entitled to receive
the Accrued Rights. Following such termination of Executive’s employment
hereunder


 


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as a result of either
party’s election not to extend the Employment Term, except as set forth in  this
Section 7(d)(i), Executive shall have no further rights to any compensation or
any other benefits under this Agreement.


 


(ii)     Continued
Employment Beyond the Expiration of the Employment Term. Unless the parties
otherwise agree in writing, continuation of Executive’s employment with the
Company or its subsidiaries beyond the expiration of the Employment Term shall be deemed an employment at-will and shall
not be deemed to extend any of the provisions of this Agreement and Executive’s
employment may thereafter be terminated at will by either Executive or the
Company; provided that the provisions of Sections 8, 9 and 10 of this
Agreement shall survive any termination of this Agreement or Executive’s
termination of employment hereunder.


 


(e)     Notice
of Termination. Any purported termination of employment by the Company or
by Executive (other than due to Executive’s death) shall be communicated by
written Notice of Termination to the other party hereto in accordance with Section 11 (i) hereof. For purposes of this Agreement, a “Notice
of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.


 


(f)      Board/Committee
Resignation. Upon termination of Executive’s employment for any reason,
Executive agrees to resign, as of the date of such termination and to the
extent applicable, from the Board (and any committees thereof) and the Board of
Directors (and any committees thereof) of any of the Company’s affiliates.


 


8.       Non-Competition.


 


(a)     From
the date of this Agreement until the end of the one-year period following the
date Executive ceases to be employed by the Company or one of its subsidiaries
(the “Restricted Period”), irrespective of the cause, manner or time of any
termination of employment, Executive shall not obtain loans, goods or services
from another organization on terms that would not be available to her in the
absence of her relationship to the Company or any of its affiliates.


 


(b)     During
the Restricted Period, Executive 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 Competitors of any of the Company’s
affiliates or in any way injuring the interests of the Company or any of the
Company’s affiliates; provided, however, that, subject to Section 9, nothing
herein shall preclude the Executive 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 or responding to
statements made by or on behalf of the Company about Executive or her
activities with the Company; provided, further, however, that nothing herein
shall prohibit the Company and its affiliates from disclosing the fact of any
termination of Executive’s employment or the circumstances for such a
termination. For purposes of this Agreement, the term “Competitor” means any
person, enterprise entity, 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, or proposed to be conducted, by the


 


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Company or its affiliates
at any time during the Executive’s employment, in a manner that is or would be
material in relation to the businesses of the Company or its affiliates or to
the prospects for the businesses of the Company or its affiliates. Such
business includes, but is not limited to, the Company’s or its affiliates’
manufacture, production, sale, lease, rental, licensing or otherwise providing
its products or services.


 


(c)     During
the Restricted Period, Executive, without prior express written approval by the
Board, shall not, within 100 miles of any geographical area of the Company or
its affiliates: (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 during or 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. Executive acknowledges
that the Company’s and its affiliates businesses are conducted nationally and
internationally and agrees that the provisions in the foregoing sentence shall
operate throughout the United States and the world (subject to the definition
of “Competitor”).


 


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


 


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


 


(f)      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.


 


(g)     The
period of time during which the provisions of this Section 8 shall be in effect
shall be extended by the length of time during which Executive is in breach of
the terms hereof as determined by any court of competent jurisdiction on the
Company’s application for injunctive relief.


 


(h)     Executive
agrees that the restrictions contained in this Section 8 are an essential
element of the compensation Executive is granted hereunder and but for
Executive’s agreement to comply with such restrictions,
the Company would not have entered into this Agreement.


 


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(i)      It is expressly understood and agreed that although Executive and
the Company consider the restrictions contained in this Section 8 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 Executive, 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.


 


(j)      For purposes of this Section 8 only, the
term “affiliates” of the Company shall not include companies owned by The
Blackstone Group that are in businesses other than those conducted or planned
to be conducted by the Company and its subsidiaries.


 


9.       Confidentiality;
Intellectual Property.


 


(a)     Confidentiality.


 


(i)      Executive will not at any time (whether
during or after Executive’s employment with the Company) (x) retain or use for
the benefit, purposes or account of Executive 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, its subsidiaries or
affiliates 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 Board.


 


(ii)     “Confidential Information” shall not
include any information that is (a) generally known to the industry or the
public other than as a result of Executive’s breach of this covenant or any
breach of other confidentiality obligations by third parties; (b) made
legitimately available to Executive by a third party without breach of any
confidentiality obligation; or (c) required by law to be disclosed; provided
that Executive 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, Executive will
not disclose to anyone, other than Executive’s 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 or its affiliates); provided that Executive may disclose
to any prospective


 


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future employer the
provisions of Sections 8 and 9 of this Agreement provided they agree to
maintain the confidentiality of such terms.


 


(iv)    Upon termination of Executive’s employment
with the Company for any reason, Executive 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, its subsidiaries or affiliates; (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 Executive’s
possession or control (including any of the foregoing stored or located in
Executive’s office, home, laptop or other computer, whether or not Company
property) that contain Confidential Information or otherwise relate to the
business of the Company, its affiliates and subsidiaries, except that Executive
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 Executive is or becomes aware.


 


(b)     Intellectual Property.


 


(i)      If Executive has 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 Executive’s employment
by the Company, that are relevant to or implicated by such employment (“Prior
Works”), Executive hereby grants 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 Executive creates, invents, designs,
develops, contributes to or improves any Works, either alone or with third
parties, at any time during Executive’s employment by the Company and within
the scope of such employment and/or with the use of any the Company resources (“Company
Works”), Executive shall promptly and fully disclose same to the Company and
hereby irrevocably assigns, transfers and conveys, 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)    Executive agrees 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.


 


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(iv)    Executive 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 Executive’s signature on any document for this
purpose, then Executive hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as Executive’s agent and attorney
in fact, to act for and in Executive’s behalf and stead to execute any
documents and to do all other lawfully permitted acts in connection with the
foregoing.


 


(v)     Executive 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. Executive hereby indemnifies, holds harmless and agrees to defend
the Company and its officers, directors, partners, employees, agents and
representatives from any breach of the foregoing covenant. Executive 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. Executive acknowledges that the Company
may amend any such policies and guidelines from time to time, and that
Executive remains at all times bound by their most current version.


 


(vi)    The provisions of Section 8 and 9 shall
survive the termination of Executive’s employment for any reason.


 


10.     Specific Performance. Executive
acknowledges and agrees that the Company’s remedies at law for a breach or
threatened breach of any of the provisions of Sections 8 or 9 would be
inadequate and the Company would suffer irreparable damages as a result of such breach or
threatened breach. In recognition of this fact, Executive agrees 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.


 


11.     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)     Entire Agreement/Amendments. This
Agreement contains the entire understanding of the parties with respect to the
employment of Executive by the Company. There are no restrictions, agreements,
promises, warranties, covenants or undertakings between the parties with
respect to the subject matter herein other than those expressly set forth
herein.


 


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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 Executive’s rights and duties hereunder, shall not be assignable or
delegable by Executive. Any purported assignment or delegation by Executive 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 Executive the amounts provided and to make the arrangements
provided hereunder shall be subject to set-off, counterclaim or recoupment of
amounts owed by Executive to the Company or its affiliates. Executive 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 provisions of
Section 9 of this Agreement.


 


(g)     Compliance
with IRC Section 409A.  Notwithstanding anything herein to the
contrary, (i) if at the time of Executive’s
termination of employment with the Company Executive is a “specified employee”
as defined in Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”) and the deferral of the commencement of any payments or benefits
otherwise payable hereunder as a result of such termination of employment is
necessary in order to prevent any accelerated or additional tax under Section
409A of the Code, then the Company will defer the commencement of the payment of
any such payments or benefits hereunder (without any reduction in such payments
or benefits ultimately paid or provided to Executive) until the date that is
six months following Executive’s termination of employment with the Company (or
the earliest date as is permitted under Section 409A of the Code) and (ii) if
any other payments of money or other benefits due to Executive hereunder could
cause the application of an accelerated or additional tax under Section 409A of
the Code, such payments or other benefits shall be deferred if deferral will
make such payment or other benefits compliant under Section 409A of the Code,
or otherwise such payment or other benefits shall be restructured, to the
extent possible, in a manner, determined by the Board, that does not cause such
an accelerated or additional tax. The Company shall consult with Executive in
good faith regarding the implementation of the provisions of this Section
11(g); provided that neither the Company nor any of its employees or
representatives shall have any liability to Executive with respect to thereto.


 


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(h)     Successors;
Binding Agreement. This Agreement shall inure to the benefit of and be
binding upon personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.


 


(i)      Notice. For the purpose of this
Agreement, notices and all other communications provided for in the Agreement
shall be in writing and shall be deemed to have been duly given when delivered
by hand or overnight courier or three days after it has been mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth below in this Agreement, or to such other
address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.


 


If to the Company,
addressed to:


 


Orbitz Worldwide,
Inc.

500 W. Madison Street

Chicago, Illinois 60606


Attention: Jim
Shaughnessy, General Counsel


Fax: (312)
896-9089


 


If to Executive,
at the current address listed in the Company’s records.


 


(j)      Executive Representation. Executive
hereby represents to the Company that the execution and delivery of this
Agreement by Executive and the Company and the performance by Executive of
Executive’s duties hereunder shall not constitute a breach of, or otherwise
contravene, the terms of any employment agreement or other agreement or policy
to which Executive is a party or otherwise bound.


 


(k)     Prior Agreements. This Agreement
supersedes all prior agreements and understandings (including verbal
agreements) between Executive and the Company and/or its affiliates regarding
the terms and conditions of Executive’s employment with the Company and/or its
affiliates (collectively, the “Prior Agreements”). For the avoidance of doubt,
Prior Agreements shall not include any equity award agreements or other written
understandings or agreements, in each case to the extent that they relate to
equity incentives.


 


(1)     Cooperation. Executive shall provide
Executive’s reasonable cooperation in connection with any action or proceeding
(or any appeal from any action or proceeding) which relates to events occurring
during Executive’s employment hereunder. This provision shall survive any
termination of this Agreement.


 


(m)    Withholding
Taxes. The Company may withhold from any amounts payable under this
Agreement such Federal, state and local taxes as may be required to be withheld
pursuant to any applicable law or regulation.


 


(n)     Counterparts. This Agreement may be
signed in counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.


 


12

















 


(o)     Arbitration. Except as otherwise
provided in Section 10 of this Agreement, any controversy, dispute, or claim
arising out of, in connection with, or in relation to, the interpretation,
performance or breach of this Agreement, including, without limitation, the
validity, scope, and enforceability of this section, may at the election of any
party, be solely and finally settled by arbitration conducted in Chicago,
Illinois, by and in accordance with the then existing rules for commercial
arbitration of the American Arbitration Association, or any successor
organization and with the Expedited Procedures thereof (collectively, the “Rules”).
Each of the parties hereto agrees that such arbitration shall be conducted by a
single arbitrator selected in accordance with the Rules; provided that such
arbitrator shall be experienced in deciding cases concerning the matter which
is the subject of the dispute. Any of the parties may demand arbitration by
written notice to the other and to the Arbitrator set forth in this Section 11(o) (“Demand for Arbitration”). Each of the parties
agrees that if possible, the award shall be made in writing no more than 30
days following the end of the proceeding. Any award rendered by the
arbitrator(s) shall be final and binding and judgment may be entered on it in
any court of competent jurisdiction. Each of the parties hereto agrees to treat
as confidential the results of any arbitration (including, without limitation,
any findings of fact and/or law made by the arbitrator) and not to disclose
such results to any unauthorized person. The parties intend that this agreement
to arbitrate be valid, enforceable and irrevocable. In the event of any
arbitration with regard to this Agreement, each party shall pay its own legal
fees and expenses, provided, however, that the parties agree to share the cost
of the Arbitrator’s fees.


 


(p)     Shareholder Approval. This Agreement
shall be subject to, and shall only be effective following, the approval of the
Company’s shareholders as of the date hereof who owned, as of the date hereof,
more than 75% of the voting power of all outstanding stock of the Company,
determined and obtained in a manner consistent with the methodology described
in proposed Treasury Regulation Section 1.280G-1.


 


13

















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.


 


 


 


	
   

  	
   

  	
  ORBITZ WORLDWIDE, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Marsha Williams

  	
   

  
	
   

  	
   

  	
  Marsha
  Williams

  	
   

  



 


 


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EXHIBIT A 

BOARDS THAT MARSHA WILLIAMS SERVES ON AS OF JULY 11,

2007


 


1.        Chicago
Bridge & Iron Company N.V.


 


2.        Modine Manufacturing Company


 


3.        The Davis Funds


 


4.        The Selected Funds


 


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