EXHIBIT 99(D)(3)
Cheap Tickets, Inc.
1440 Kapiolani Boulevard
Honolulu, Hawaii 96814
July 3, 2001
Cendant Internet Group, Inc.
9 West 57th Street
37th Floor
New York, New York 10019
Re: Amendment to Confidentiality Agreement
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The purpose of this letter (the "Amendment"), is to amend that certain
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letter agreement (the "Agreement"), dated May 24, 2001, by and between Cendant
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Internet Group, Inc. (the "Company") and Cheap Tickets, Inc. ("Cheap Tickets").
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Capitalized terms used herein and not defined herein shall have the meaning
ascribed to them in the Agreement, as amended hereby.
1. The parties desire to amend the Agreement to add the following new
paragraph:
For a period of one (1) year from the date of this letter, the Company
will not, directly or indirectly, either for itself or any other
person, and will not permit any of its Affiliates to, solicit any
officer, key employee or manager of Cheap Tickets, whom the Company
first becomes aware or first has contact as a result of the
Transaction, to leave the employ of Cheap Tickets, unless and until
any such employee is terminated by Cheap Tickets or otherwise leaves
Cheap Tickets' employ in a manner not in violation of this letter,
provided, that this limitation shall not apply to any employee who
responds to a general employment solicitation by the Company which is
not directed at Cheap Tickets' employees or with respect to any
employee who first approached the Company.
2. Construction. This Amendment shall be governed by, and construed
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in accordance with, the laws of the State of New York, without regard to the
principles of conflict of laws thereof.
3. Amendments. This Amendment cannot be modified or amended, nor may
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any provision hereof be waived, except in writing signed by the parties hereto.
Very truly yours,
CHEAP TICKETS, INC.
By: _____________________________________
Name:
Title:
CENDANT INTERNET GROUP, INC.
By: ______________________________
Name:
Title:
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Cheap Tickets, Inc.
1440 Kapiolani Boulevard
Honolulu, Hawaii 96814
August 11, 2001
Cendant Internet Group, Inc.
9 West 57th Street
37th Floor
New York, New York 10019
Re: Amendment No. 2 to Confidentiality Agreement
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The purpose of this letter (the "Second Amendment"), is to amend that
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certain letter agreement (the "Agreement"), dated May 24, 2001, by and between
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Cendent Internet Group, Inc. ("Company") and Cheap Tickets, Inc. ("Cheap
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Tickets") and that certain letter amendment, dated July 3, 2001, by and between
Company and Cheap Tickets. Capitalized terms used herein and not defined herein
shall have the meaning ascribed to them in the Agreement, as amended hereby.
1. The parties desire to amend the Agreement to add the following new
paragraphs:
As used herein "Hyperion Information" means any information provided
to the Company pursuant to Company's electronic linking to Cheap
Tickets' financial reporting system pursuant to Section 6.4(b) of the
proposed Agreement and Plan of Merger, by and among Company,
Diamondhead Acquisition Corporation, and Cheap Tickets, draft dated
August 10, 2001 (the "Merger Agreement").
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The Company agrees that it will only use Hyperion Information for the
purposes of (a) assessing the financial condition of Cheap Tickets to
determine whether Cheap Tickets has complied with the representations
and warranties of Cheap Tickets in Article III of the Merger Agreement
and the covenants and agreements of Cheap Tickets in Section 5.2 of
the Merger Agreement (collectively, the "Cheap Tickets Obligations")
and (b) planning of post-Closing (as defined in the Merger Agreement)
integration of the financial reporting systems of the two companies.
Company agrees that, without the prior written consent of Cheap
Tickets, Company shall provide Hyperion Information only to such
financial, executive and legal Representatives of Company who have a
need to know such information for the purpose of assessing Cheap
Tickets' compliance with the Cheap Tickets Obligations. The Company
shall not disclose,
share, provide or sell any Hyperion Information to any third party,
use any Hyperion Information in any manner that could reasonably be
considered a violation of any applicable laws or regulations, or use
any Hyperion Information in a manner that could reasonably considered
to assist the violation of any applicable laws or regulations. Without
limiting the generality of the foregoing, Company shall not provide
any Hyperion Information to any director, officer, employee, agent,
representative, advisor or consultant of Galileo International, Inc.
(until such time as it is a subsidiary of the Company).
For purposes of paragraph 5 of the Agreement, Evaluation Material
pertaining to Hyperion Information shall include information in
electronic form, and in the event that the Merger Agreement is
terminated and the Merger is not consummated, the Company shall, in
addition to the obligations contained in such paragraph 5, make
commercially reasonable efforts to purge all Hyperion Information from
all Company computers or other information retrieval systems.
2. Construction. This Second Amendment shall be governed by, and
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construed in accordance with, the laws of the State of New York, without regard
to the principles of conflict of laws thereof.
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3. Amendments. This Second Amendment cannot be modified or amended,
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nor may any provision hereof be waived, except in writing signed by the parties
hereto.
Very truly yours,
CHEAP TICKETS, INC.
By: __________________________________
Name:
Title:
CENDANT INTERNET GROUP, INC.
By: __________________________________
Name:
Title:
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Cendant Internet Group, Inc.
9 West 57th Street
37th Floor
New York, New York 10019
May 24, 2001
Cheap Tickets, Inc.
1440 Kaplolani Blvd.
Suite 800
Honolulu, HI 96814
Re: Confidentiality Agreement
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Dear Mr. Galeotos:
Cheap Tickets, Inc. has expressed an interest in exploring a possible
transaction with Cendant Internet Group, Inc. ("Company") with respect to
Cendant's Travel Portal. Each party (as a "receiving party") has requested that
the other party (as a "disclosing party") furnish certain information in
connection therewith (the "Transaction").
As used herein, "Evaluation Material" means all non-public information,
data, reports, interpretations, forecasts and records, whether in oral or
written form, electronically stored or otherwise (including any such information
furnished prior to the execution of this agreement), concerning the disclosing
party furnished to the receiving party or its directors, officers, partners,
affiliates, employees, agents, representatives, advisors, consultants,
investment bankers, accountants and attorneys (collectively, "Representatives")
by the disclosing party or its Representatives and all notes, reports, analyses,
compilations, studies and other materials prepared by the receiving party or its
Representatives (in whatever form maintained, whether documentary,
electronically stored or otherwise) containing, reflecting or based upon, in
whole or in part, any such information or reflecting the receiving party's
review or view of, or interest in, a possible Transaction or the Evaluation
Material. The term "Evaluation Material" does not include information which (i)
is or becomes generally available to the public other than as a result of a
disclosure by the receiving party, its Representatives or anyone to whom the
receiving party or any of its Representatives transmit any Evaluation Material
in violation of this agreement, (ii) is or becomes known or available to the
receiving party on a non-confidential basis from a source (other than the
disclosing party or one of its Representatives) who, insofar as is known to the
receiving party after due inquiry, is not prohibited from transmitting the
information to the receiving party or its Representatives by a contractual,
legal, fiduciary or other obligation, or (iii) is independently developed by the
receiving party.
In consideration of its being furnished with the Evaluation Material, the
receiving party agrees that:
1. Subject to paragraph 3 below, the Evaluation Material will be kept
confidential and will not, without the prior written consent of the disclosing
party, be disclosed by the receiving party or its Representatives, in whole or
in part, and will not be used by the receiving party or its Representatives,
directly or indirectly, for any purpose other than in connection with evaluating
a possible Transaction. Moreover, the receiving party agrees to disclose
Evaluation Material and the fact that the receiving party is evaluating a
possible Transaction to its Representatives only if and to the extent that such
Representatives need to know the Evaluation Material for the purpose of
evaluating such Transaction and are informed by the receiving party of the
confidential nature of the Evaluation Material and agree to be bound by the
terms of this agreement. In any event, the receiving party will be fully
responsible for any actions by its Representatives that are not in accordance
with the provisions hereof. The receiving party agrees to make all reasonable,
necessary and appropriate efforts to safeguard Evaluation Material from
disclosure to anyone other than as permitted hereby.
2. Subject to paragraph 3 below, without the prior written consent of the
disclosing party, neither the receiving party nor its Representatives will
disclose to any person any information regarding a possible Transaction or any
information relating in anyway to the Evaluation Material, including, without
limitation (i) the fact that discussions or negotiations are taking place
concerning a possible Transaction, including the status thereof or the
termination of discussions or negotiations with respect thereto, (ii) any of the
terms, conditions or other facts with respect to any such possible Transaction
or of its consideration of a possible Transaction or (iii) that this agreement
exists, that Evaluation Material has been made available or any opinion or view
with respect to the disclosing party's business, the disclosing party or the
Evaluation Material.
3. In the event that the receiving party, its Representatives or anyone to
whom the receiving party or its Representatives supply the Evaluation Material
or any of the facts or information referred to in paragraph 2 above are
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand, any informal or
formal investigation by any government or governmental agency or authority or
otherwise) to disclose any Evaluation Material or any of the facts or
information referred to in the prior paragraph or any information relating to a
possible Transaction or such person's opinion, judgment, view or recommendation
concerning the disclosing party or its business as developed from the Evaluation
Material, the receiving party agrees (i) to promptly notify the disclosing party
of the existence, terms and circumstances surrounding such a request; (ii) to
consult with the disclosing party on advisability of taking legally available
steps to resist or narrow such request and (iii) if disclosure of such
information is required, to furnish only that portion of the Evaluation Material
which, in the opinion of its counsel, the receiving party is legally compelled
to disclose and to cooperate with any action by the disclosing party to obtain
an appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Evaluation Material, at the disclosing party's
cost and expense. The receiving party agrees to give the disclosing party prior
notice of the
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Evaluation Material or other information its counsel believes the receiving
party is required to disclose.
4. Although the disclosing party has endeavored to include in the Evaluation
Material information known to it which it believes to be relevant for the
purpose of its investigation, the receiving party understands that neither the
disclosing party nor any of its Representatives has made or makes hereunder any
representation or warranty as to the accuracy or completeness of the Evaluation
Material. The receiving party agrees that neither the disclosing party nor its
Representatives shall have any liability to the receiving party or any of its
Representatives resulting form the Evaluation Material or its Representatives'
consideration of, or participation in a process relating to, a possible
Transaction. Only those representations and warranties which are made in a
final definitive agreement regarding the Transaction, when, as and if executed
and subject to such limitations and restrictions as may be specified therein,
will have any legal effect.
5. At any time upon request from the disclosing party, the receiving party
shall redeliver to the disclosing party or destroy all tangible Evaluation
Material and any other tangible material containing, prepared on the basis of,
or reflecting any information in the Evaluation Material (whether prepared by
the disclosing party, its Representatives or otherwise), including all reports,
analyses, compilations, studies and other materials containing or based on the
Evaluation Material or reflecting its review of, or interest in, the disclosing
party's business, and will not retain any copies, extracts or other
reproductions in whole or in part of such tangible material. If requested by
the disclosing party, an appropriate officer of the receiving party will certify
to the disclosing party that all such material has been so redelivered or
destroyed. Notwithstanding the delivery or destruction of the materials
required by this paragraph, all duties and obligations existing under this
agreement (including with respect to any oral Evaluation Material) will remain
in full force and effect.
6. As used in this agreement: the terms "person" shall be broadly interpreted
to include, without limitation, any corporation, company, group, entity, trust,
partnership or individual; the term "Affiliate" shall have the meaning set forth
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); the term "Company" shall include, without limitation, the
disclosing party, its subsidiaries and affiliates, including the Travel Portal
or any successor thereof.
7. The receiving party acknowledges and agrees that in the event of any breach
of this agreement, the disclosing party may be irreparably and immediately
harmed and may not be able to made whole by monetary damages alone. It is
accordingly agreed that the disclosing party, in addition to my other remedy to
which it may be entitled in law or equity, shall be entitled to seek an
injunction or injunctions to prevent breaches of this agreement, to compel
specific performance of this agreement and/or seek other equitable relief.
8. The receiving party agrees that unless and until a definite written
agreement between the disclosing party and the receiving party with respect to a
Transaction has been executed and delivered, neither the disclosing party nor
the receiving party will be
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under any legal obligation of any kind whatsoever with respect thereto. The
receiving party further acknowledges and agrees that the disclosing party
reserves the right in its sole and absolute discretion to reject any and all
proposals and to terminate discussions or negotiations with, or directly or
indirectly involving, the receiving party at any time.
9. If any term or provision of this letter, or any application thereof to any
circumstances, shall, to any extent and for any reason; be held to be invalid or
unenforceable, the remainder of this letter, or the application of such term or
provision to circumstances other than those to which it is held invalid or
enforceable, shall not be affected thereby and shall be construed as if such
invalid or unenforceable provision had never been contained herein and each term
and provision of this letter shall be valid and enforceable to the fullest
extent permitted by law. It is understood and agreed that no failure or delay by
the disclosing party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder.
10. This letter shall constitute the entire agreement between the parties with
regard to the subject matter hereof. This agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the principles of conflict of laws thereof. This agreement may be modified
or waived only by a separate writing executed by the disclosing party and the
receiving party which expressly modifies or waives any portion of this
agreement. This agreement shall inure to the benefit of any successor in
interest to the disclosing party, as well as to any person that may acquire,
after the date hereof, any subsidiary or division of the disclosing party with
respect to Evaluation Material concerning the business or affairs of such
subsidiary or division. This agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
Very truly yours,
CENDANT INTERNET GROUP, INC.
By: /s/Ronen Stauber
________________________
Name:
Title:
Confirmed and Agreed to as of
The date first written above.
CHEAP TICKETS, INC.
By: /s/ Sam Galeotos
___________________________
Name:
Title:
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