exv10w17



 







Exhibit 10.17



July 19,
2006



Keenan
Conder




Dear Keenan:




     Expedia, Inc., a Washington corporation (the “Company”), and you have agreed to the
termination of your employment with the Company upon the following terms and conditions of this
“Separation Agreement”:



     1. You hereby acknowledge and agree that, effective as of July 31, 2006 (the “Termination
Date”), your employment as Senior Vice President and General Counsel of the Company will terminate
and you will resign from all positions you occupy (or have occupied) as an officer or director of
the Company or any subsidiary or affiliate of the Company, provided that from the date hereof
through the Termination Date (i) you shall perform such duties associated with your position
consistent with past practice as may be requested by the Company and (ii) you shall be available
for consultation and meetings, as determined by the Company, in each case, using your reasonable
efforts to assist the Company in making an orderly transition from your services. Notwithstanding
the foregoing, nothing herein shall prevent the Company from hiring any replacement prior to the
Termination Date or relieving you of your responsibilities and your title prior to the Termination
Date.



     2. (a) From
the Termination Date through July 31, 2007 (the “Payment Period”), the Company
will (1) pay to you, on the Company’s regular payroll dates, gross bi-weekly pay ratably based on
an annual base salary amount of $285,000, and (2) at its option, either continue your current
health coverage through the end of the Payment Period or pay on your behalf the full premium for
you to receive continuation coverage under COBRA through the end of the Payment Period from your
COBRA eligibility date, provided that you timely elect COBRA continuation coverage, and
subject to all other COBRA requirements, and further provided that the Company’s obligation
to continue your current health coverage and/or pay on your behalf the full premium for you to
receive continuation coverage under COBRA shall earlier terminate as of the date on which you
become eligible for group health plan coverage through any other employer. For that reason, and
because your eligibility



Separation Agreement and Release




 









 




for COBRA continuation may be affected if you secure other group health plan coverage during
the Payment Period, you agree to notify the Company within thirty (30) days of securing any such
coverage. These severance benefits are designed to aid you in your employment transition, and will
be offset, as described herein and in paragraph 2(e) below, by any compensation and/or health
insurance coverage obtained through a new employer during the Payment Period.




          (b) You are entitled to your vested account balance in the Company’s Section 401(k) Plan as of
the Termination Date, if any, in accordance with the terms and conditions of such plan. The
Company will provide you with a summary of the procedures for all such benefits to be transferred
to a private 401(k) plan or individual retirement account to be established by you.




          (c) Your short term disability insurance will end on the Termination Date. Your Long-Term
Disability Plan coverage ends on the Termination Date and cannot be converted or continued.




          (d) Your coverage under the Company’s group health and dental plans and Group Life and
Accidental Death & Dismemberment Insurance, to the extent you currently participate in these plans,
ends on the last day of the calendar month of the Termination Date, i.e., July 31, 2006. If you
wish to continue your participation and that of your eligible dependents in the Company’s group
health and dental plans after the coverage ends, and/or if you wish to receive the benefit of the
Company-paid COBRA payments in Section 2(a), you may do so under COBRA by completing and returning
in a timely manner the election form that will be mailed to you under separate cover. All Group
Life and Accidental Death & Dismemberment Insurance, to the extent you currently participate in
these plans, may be converted to individual plans. Information about these options will be
forwarded to you under separate cover.




          (e) Beginning on the Termination Date and continuing through the Payment Period, you agree to
use reasonable best efforts to seek other employment and to take other reasonable actions to
mitigate the amounts payable under this section. If you obtain other employment or provide
services for compensation during the Payment Period, the amount of all payments provided for under
Section 2 which have been paid to you shall be refunded to the Company by you in an amount equal to
any compensation earned by you as a result of employment with or services provided to another
employer or entity during the Payment Period, and all future amounts payable by the Company to you
during the Payment Period shall be offset by the amount earned by you from another employer or
entity. For purposes of this section, you shall have an obligation to inform the Company regarding
your employment status during the Payment Period.




					
	 	 	 	 	 
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     3. (a) During your employment at the Company, you have been granted various restricted stock
units pursuant to restricted stock unit agreements (the “Restricted Stock Unit Agreements”) under
the IAC/InterActiveCorp (formerly USA Networks) 1997 Stock and Annual Incentive Plan, the
USA/InterActiveCorp (“IAC”) Amended and Restated 2000 Stock Annual Incentive Plan (the “2000
Plan”), and the Expedia, Inc. 2005 Stock and Annual Incentive Plan (collectively, the “Plans”).



          (b) Subject to the approval of the compensation committee of the board of directors of
Expedia, Inc. (Delaware), your restricted stock units in Expedia, Inc. (Delaware) which would have
vested during the Payment Period, as detailed on the attached Schedule A, will accelerate and be
deposited in your account (less withholdings) as of the later of the Termination Date or the
expiration of the Revocation Period, subject to Expedia, Inc. (Delaware)’s standard securities
trading policy.




          (c) You are entitled to retain the common stock underlying the restricted stock units that are
vested as of the Termination Date (including pursuant to the acceleration described in Section
3(b)).




          (d) As provided in the applicable Restricted Stock Unit Agreements, you hereby forfeit the
restricted stock units granted to you pursuant to the applicable Restricted Stock Unit Agreements
under the applicable Plans, in each case, that are unvested as of the Termination Date (other than
those that accelerate pursuant to Section 3(b)). You agree that, subject to paragraphs 3(c), (d),
and (e), upon this forfeiture you have no rights to or interests in any stock under the Restricted
Stock Unit Agreements, or other rights to acquire equity of Expedia, Inc. (Delaware) or IAC or any
of its affiliates or otherwise.




          (e) Except as expressly provided otherwise in this paragraph 3, all terms of the Restricted
Stock Unit Agreements shall remain in full force and effect in accordance with the terms and
conditions therein and unchanged and are hereby confirmed in all respects.




     4. If you move before the end of the Payment Period, the Company agrees to reimburse the
reasonable relocation expenses (which may include the closing costs associated with the sale of
your home on Mercer Island) of you and your family’s move from Mercer Island, Washington to another
location, up to a maximum net amount of $100,000 (grossed up for taxes), provided that any
relocation reimbursement shall be offset by any relocation benefits provided to you and your family
by your new employer. If you obtain other employment and are offered or receive relocation expense
reimbursement from that employer, the amount of all



					
	 	 	 	 	 
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payments provided for under Section 4 which have been paid to you shall be refunded to the
Company by you in an amount equal to any relocation benefits you received from such other employer,
and all future relocation reimbursement amounts shall be offset by the amount received by you from
another employer. For that reason, you agree to notify the Company within thirty (30) days of
reaching agreement for relocation expenses by your new employer.




     5. The Company shall have the right to deduct from all payments under this Agreement amounts
required to be withheld by the Company under applicable tax laws. Tax withholding from the
payments provided for in Section 2 above shall be consistent with the withholding done from your
salary when you were actively employed. The Company shall also have the right to deduct any
personal account balances (including but not limited to travel advances) or other outstanding
monies due by you to the Company from the payments to which you may be entitled under this
Agreement.



     6. (a) For and in consideration of the payments and promises made by the Company herein, and
other good and valuable consideration, the receipt of which you hereby acknowledge, you and your
heirs, executors, administrators, trustees, legal representatives and assigns (collectively, the
“Releasors”) hereby waive, release and forever discharge the Company and its affiliates, including
without limitation, Expedia, Inc. (Delaware), and its and their respective divisions, branches,
predecessors, successors, assigns, directors, officers, employees, agents, partners, members,
stockholders, representatives and attorneys, in their individual and representative capacities
(collectively, the “Releasees”) of and from any and all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever (including attorneys’ fees, costs and disbursements
actually incurred), in law, admiralty or equity, whether known or unknown, suspected or
unsuspected, of every kind and nature whatsoever, which may now exist or which may later arise,
including without limitation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§2000 et seq.; the Rehabilitation Act of 1973, as amended; the Fair Labor Standards Act, as
amended, 29 U.S.C. §201 et seq.; the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq.;
the Americans With Disabilities Act, 42 U.S.C. §1001 et seq. and §12,112 et seq.; the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. §1001 et seq.; the Reconstruction Era
Civil Rights Act, as amended, 42 U.S.C. §1981 et seq.; the Washington Law Against Discrimination,
RCW 9.60 et seq; and all other federal, state and local laws, statutes, rules or regulations of any
type or description, including contract law, tort law, civil rights laws, express or implied
covenants of good faith or fair dealing, and otherwise, regarding employment discrimination or the
employment



					
	 	 	 	 	 
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of labor, or otherwise, which the Releasors ever had, now have or hereafter can, shall or may
have against the Releasees or any of them for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this Agreement, except as
otherwise provided in this Agreement. Without limiting the generality of the foregoing, except as
expressly set forth in this Agreement, the Releasors expressly waive any right or claim for
reinstatement of employment, backpay, interest, bonuses, damages, accrued vacation, accrued sick
leave, medical, dental, optical or hospitalization benefits, accidental death and dismemberment
coverage, long term disability coverage, stock or other interests in the Company, or any affiliate,
life insurance benefits, overtime, severance pay and/or attorneys’ fees or costs with respect to or
derivative of such employment with the Company or the termination thereof or otherwise.




          (b) Notwithstanding anything to the contrary set forth in this section 6, neither you nor the
Company release, waive or discharge the other from (i) any claims to seek to enforce this Agreement
or (ii) any claims for indemnification or contribution with respect to any liability (A) incurred
by you as a director or officer of the Company or (B) of the Company as a result of any willful
misconduct or material breach of fiduciary duties by you.




          (c) For the purpose of implementing a full and complete release and discharge of each party,
each party expressly acknowledges that this Agreement is intended to include in its effect, without
limitation, all claims or other matters described in this paragraph 6 that such party does not know
or suspect to exist in your favor at the time of execution hereof, and that this Agreement
contemplates the extinguishment of any and all such claims or other such matters. The Releasees
who are not a party to this Agreement are third party beneficiaries of this Agreement and are
entitled to enforce its provisions.




     7. A
restricted period (“Restricted Period”) shall exist during your continued employment
hereunder and during the 24 month period starting on August 1, 2006 and continuing through July 31,
2008. During this Restricted Period, you shall not, directly or indirectly, engage in or become
associated with a Competitive Activity. For purposes of this Agreement: (i) a “Competitive
Activity” means, as of the Termination Date, any business or other endeavor, in any jurisdiction,
of a kind being conducted by the Company or any of its subsidiaries or affiliates (or demonstrably
anticipated by the Company or its subsidiaries or affiliates), including, without limitation, those
that are engaged in the provision of any travel related services (including, without limitation,
corporate travel services) in any jurisdiction as of the Termination Date (such affiliates
including, without limitation, Expedia Corporate Travel, Hotels.com, Hotwire and Trip Advisor); and
(ii) you shall be considered to have become “associated with a Competitive Activity” if you become



					
	 	 	 	 	 
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directly or indirectly involved as an owner, principal, employee, officer, director,
independent contractor, representative, stockholder, financial backer, agent, partner, advisor,
lender, or in any other individual or representative capacity with any individual, partnership,
corporation or other organization that is engaged in a Competitive Activity. Notwithstanding the
foregoing, you may make and retain investments during the Restricted Period, for investment
purposes only, in less than five percent (5%) of the outstanding capital stock of any
publicly-traded corporation engaged in a Competitive Activity if stock of such corporation is
either listed on a national stock exchange or on the NASDAQ National Market System if you are not
otherwise affiliated with such corporation.




     8. You recognize that you possess confidential information about other employees, consultants,
agents and contractors of the Company and its subsidiaries or affiliates relating to their
education, experience, skills, abilities, compensation and benefits, and interpersonal
relationships with suppliers to and customers of the Company and its subsidiaries or affiliates.
You recognize that the information you possess about these other employees, consultants, agents and
contractors is not generally known, is of substantial value to the Company and its subsidiaries or
affiliates in developing their respective businesses and in securing and retaining customers, and
was acquired by you because of your business position with the Company. You agree (i) that during
the Restricted Period, you shall not, without the prior written consent of the Company, directly or
indirectly, hire, recruit or solicit the employment or services of (whether as an employee,
officer, director, agent, consultant or independent contractor), or encourage to change such
person’s relationship with the Company or any of its subsidiaries or affiliates, any employee,
officer, director, agent, consultant or independent contractor of the Company or any of its
subsidiaries or affiliates; provided, however, that a general solicitation of the public
for employment shall not constitute a solicitation hereunder so long as such general solicitation
is not designed to target, or does not have the effect of targeting, any employee, officer,
director, agent, consultant or independent contractor of the Company or any of its subsidiaries or
affiliates and (ii) that you will not convey any information (whether confidential or otherwise) or
trade secrets about any employees, officers, directors, agents, consultants and independent
contractors of the Company or any of its subsidiaries or affiliates to any other person.



     9. During the Restricted Period, you shall not, without the prior written consent of the
Company, directly or indirectly, solicit, attempt to do business with, or do business with any
customers of, suppliers (including providers of travel inventory) to, business partners of or
business affiliates of the Company or any of its subsidiaries or affiliates (such customers,
suppliers, partners and affiliates, collectively, “Trade Relationships”) on behalf of any entity
engaged in a Competitive Activity, or encourage (regardless of who initiates the contact) any Trade
Relationship to use the



					
	 	 	 	 	 
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services of any competitor of the Company or its subsidiaries or affiliates, or encourage any
Trade Relationship to change its relationship with the Company or its subsidiaries or affiliates.




     10. You acknowledge that, during the course of your employment with the Company, you may have
developed Confidential Information (as defined below) for the Company, and you may have learned of
Confidential Information developed or owned by the Company or its affiliates or entrusted to the
Company or its affiliates by others. You agree that you will not, directly or indirectly, use any
Confidential Information or disclose it to any other person or entity, except as otherwise required
by law.



     “Confidential Information” means any and all information relating to the Company which is not
generally known by the public or others with whom the Company does (or plans to) compete or do
business, as well as comparable information relating to any of the Company’s affiliates.
Confidential Information includes, but is not limited to, information relating to the terms of this
Agreement, as well as the Company’s business, technology, practices, products, marketing, sales,
services, finances, strategic opportunities, internal strategies, legal affairs (including pending
litigation), the terms of business relationships not yet publicly known, intellectual property and
the filing or pendency of patent applications. Confidential Information also includes, but is not
limited to, comparable information that the Company may receive or has received belonging to
customers, suppliers, consultants and others who do business with the Company, or any of the
Company’s affiliates.



     “Confidential Information” does not include any information that is: (i) shown to have been
developed independently by you prior to your employment with the Company; or (ii) required by a
judicial tribunal or similar governmental body to be disclosed under law (provided that you have
first promptly notified the Company of such disclosure requirement and have cooperated fully with
the Company (at the Company’s expense) in exhausting all appeals objecting to such requirement).



     You recognize that any violation of your obligations described in this section of this
Agreement (and in paragraphs 7, 8, and 9 hereof) may result, in the Company’s sole discretion and
to the maximum extent permitted by law, in forfeiture by you of any or all payments and other
benefits under this Agreement. You also agree that, in addition to and without limiting the
availability of any other legal or equitable remedies the Company may have against you, the Company
shall be entitled to an injunction restraining you from further violation of such sections.



     11. In accordance with normal ethical and professional standards, prior to and following the
Termination Date, you agree to refrain from taking actions or



					
	 	 	 	 	 
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making statements, written or oral, which denigrate, disparage or defame the goodwill or
reputation of the Company and its affiliates, divisions, branches, predecessors, successors,
assigns, trustees, officers, security holders, partners, agents and former and current employees
and directors or which are intended to, or may be reasonably expected to, adversely affect the
morale of the employees of any of the Company or its affiliates. You further agree not to make any
negative statements to third parties relating to your employment or any aspect of the business of
the Company and its affiliates and not to make any statements to third parties about the
circumstances of the termination of your employment, or the Company and its affiliates, divisions,
branches, predecessors, successors, assigns, trustees, officers, security holders, partners, agents
and former and current employees and directors and employees, except as may be required by a court
or governmental body. You may however discuss the circumstances of the termination of your
employment with the Company with your attorneys, tax advisors, and immediate family.




     12. On or before the Termination Date, you agree to return to the Company any and all records,
files, notes, memoranda, reports, work product and similar items, and any manuals, drawings,
sketches, plans, tape recordings, computer programs, disks, cassettes and other physical
representations of any information, relating to the Company, or any of its affiliates, whether or
not constituting confidential information, and you will return to the Company any other property,
including but not limited to a laptop computer, belonging to the Company, no later than the
Termination Date.



     13. You agree to make yourself reasonably available to the Company to respond to requests by
the Company for documents and information concerning matters involving facts or events relating to
the Company or any affiliate or subsidiary thereof (including, without limitation, predecessors
thereof) that may be within your knowledge, and further agree to provide truthful information to
the Company an affiliate or subsidiary thereof or any of their representatives as reasonably
requested with respect to pending and future litigations, arbitrations, other dispute resolutions,
investigations or requests for information. You also agree to make yourself reasonably available
to assist the Company and its affiliates in connection with any administrative, civil or criminal
matter or proceeding brought by or brought against any of them, in which and to the extent the
Company, an affiliate of subsidiary thereof or any of their representatives reasonably deem your
cooperation necessary. You shall be reimbursed for your reasonable out-of-pocket expenses incurred
as a result of such cooperation.



     14. You hereby represent that you have not filed or commenced any proceeding against the
Releasees, and hereby covenant and agree not to file or commence any proceeding against the
Releasees with respect to your employment with the Company or the termination thereof, or
otherwise, arising on or prior to the



					
	 	 	 	 	 
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date of execution of this Agreement. You also agree that if you breach these representations
or covenants, then you authorize the Releasees to, and each shall have the right to, cause any such
proceeding to be dismissed on the grounds that you have completely released and waived such
proceeding.




     15. This Agreement and all matters or issues related hereto shall be governed by the laws of
the State of Washington applicable to contracts entered into and performed therein. Whenever
possible, each provision of this Agreement shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement. The Company hereby consents to, and you hereby submit your person to, the
jurisdiction of all state courts of the State of Washington sitting in King County, and the United
States District Court for the Western District of Washington, for the purposes of the enforcement
of this Agreement. All disputes under this Agreement will be determined in the Federal or State
courts within the state of Washington, sitting in King County.



     16. (a) This Agreement is personal in its nature and the parties shall not, without the prior
written consent of the other, assign or transfer this Agreement or any rights or obligations
hereunder; provided, however, the provisions hereof shall inure to the benefit of,
and be binding upon, each successor of the Company or any of its affiliates, whether by merger,
consolidation or transfer of all or substantially all of its assets.



          (b) This Agreement, and the stock plan agreements referenced in Section 3, contain the entire
understanding of the parties hereto relating to the subject matter herein contained and supersede
all prior agreements or understandings between the parties hereto with respect thereto. This
Agreement can be changed only by a writing signed by all parties hereto. No waiver shall be
effective against any party unless in writing and signed by the party against whom such waiver
shall be enforced.




     17. All notices and other communications hereunder shall be deemed to be sufficient if in
writing and delivered in person or by a nationally recognized courier service, addressed, if to
you, to the following:


Keenan Conder



and if to the Company, to:




					
	 	 	 	 	 
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Expedia, Inc.

3150 139th Ave SE

Bellevue, Washington 98005

Attention: EVP of Human Resources and General Counsel



or such other address as you or the Company may have furnished to the other parties in writing.
Each notice delivered in person or by overnight courier shall be deemed given when delivered or
when delivery is attempted and refused.




     18. In case any provision or provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect by any court or administrative body
with competent jurisdiction, such invalidity, illegality or unenforceability shall not affect the
remaining provisions hereof, which shall remain in full force and effect. Any provision(s) so
determined to be invalid, illegal or unenforceable shall be reformed so that they are valid, legal
and enforceable to the fullest extent permitted by law or, if such reformation is impossible, then
this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had
never been contained herein; provided that, upon a finding by a court of competent jurisdiction
that this Agreement is illegal and/or unenforceable, you shall be required to repay to the Company
the payments set forth herein.



     19. This Agreement may be executed via facsimile and in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument, binding on the parties.



     20. You acknowledge and agree that, in deciding to execute this Agreement, you have relied
entirely upon your own judgment, that you have read this Agreement and have had adequate time to
consider its terms and effects and to ask any questions that you may have of anyone, and that you
have executed this Agreement voluntarily and with full understanding of its terms and its effects
on you, and that no fact, evidence, event or transaction currently unknown to you but which may
later become known to you will affect in any way or manner the final and unconditional nature of
this Agreement. You further acknowledge that (a) you were advised to consult with an attorney
before you executed this Agreement; (b) you were afforded sufficient opportunity to and did consult
with an attorney; (c) you had 21 days from your receipt of this Agreement to consider this
Agreement before executing and delivering this Agreement; (d) your waiver of rights under this
Agreement is knowing and voluntary as required under the Older Workers Benefit Protection Act; (e)
you understand the terms of this agreement; (f) you may revoke this Agreement by delivering written
notice to the Company within a period of seven (7) days following the day on which you execute this
Agreement (the “Revocation Period”), and this Agreement shall not become effective or enforceable
until after the Revocation Period has expired; and (g)



					
	 	 	 	 	 
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nothing in this agreement shall be construed to prohibit you from filing a charge or
complaint, including a challenge to the validity of the waiver provision of this Agreement, with
the Equal Employment Opportunity Commission or participating in any investigation conducted by the
Equal Employment Opportunity Commission. However, you have waived any right to monetary relief.
For this revocation to be effective, written notice from you must be received by the Company at the
address set forth and as provided in paragraph 17 no later than the close of business on the
seventh calendar day after you sign this Agreement. If you revoke this Agreement, you will not
receive any of the payments or benefits described in this Agreement.




     BY SIGNING THIS AGREEMENT, YOU STATE THAT:



     (a) YOU HAVE READ THIS AGREEMENT AND HAVE HAD SUFFICIENT TIME TO CONSIDER ITS TERMS;



     (b) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND KNOW THAT YOU ARE
GIVING UP IMPORTANT RIGHTS;



     (c) YOU AGREE WITH EVERYTHING IN THIS AGREEMENT;



     (d) YOU ARE AWARE OF YOUR RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT AND
HAVE BEEN ADVISED OF SUCH RIGHT;



     (e) YOU HAVE SIGNED THIS AGREEMENT KNOWINGLY AND VOLUNTARILY; AND



     (f) THIS AGREEMENT INCLUDES A RELEASE BY YOU OF ALL KNOWN AND UNKNOWN CLAIMS.



     If the foregoing correctly sets forth our understanding, please sign one copy of this
Agreement and return it to the undersigned, whereupon this letter shall constitute a binding
agreement between us.



Sincerely,

EXPEDIA, INC.




	 	 	 	 	 	 	 	 	 
	By:

Name:

	 	/s/ Connie Symes
 

Connie Symes
	 	 	 	          July 31, 2006
 

Date July 31, 2006
	 	 
	Title:

	 	VP, Human Resources	 	 	 	 	 	 






					
	 	 	 	 	 
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          I, Keenan Conder, acknowledge that I have been given at least twenty-one (21) days from the
date of this Agreement to consider the terms contained herein and that I have seven (7) days after
signing this Agreement in which to rescind my acceptance hereof. I also acknowledge that I have
been advised to consult with a lawyer prior to signing this Agreement. I knowingly and voluntarily
agree to and accept the terms outlined in this Agreement without reservation and fully understand
all of its terms.




ACCEPTED AND AGREED:




	 	 	 	 	 	 	 
	          /s/ Keenan Conder
 

Keenan Conder

	 	 	 	          July 31, 2006
 

Date July 31, 2006
	 	 






					
	 	 	 	 	 
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