Exhibit 2.3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated September 29, 2004, by
and among Cendant Corporation, a Delaware corporation ("Parent"), Robertson
Acquisition Corporation, a Delaware corporation and an indirect wholly-owned
subsidiary of Parent (the "Purchaser") and Continental Airlines, Inc.
("Stockholder").
WHEREAS, Stockholder is, as of the date hereof, the record and
beneficial owner of the number of shares of Series B-CO Common Stock, par value
$0.001 (the "Class B Common Stock" and, together with the class A common stock
par value $0.001 ("Class A Common Stock") of Orbitz Inc., a Delaware
corporation (the "Company"), the "Common Stock"), of the Company, set forth
opposite the name of Stockholder on Schedule I hereto;
WHEREAS, Parent, the Purchaser and the Company have entered into an
Agreement and Plan of Merger, dated as of the date hereof, in the form attached
hereto as Exhibit A (the "Merger Agreement"), which provides, among other
things, for the Purchaser to conduct tender offers for all of the issued and
outstanding shares of the Class A Common Stock (the "Class A Offer") and all of
the issued and outstanding shares of the Class B Common Stock (the "Class B
Offer") and the merger of the Purchaser with and into the Company with the
Company continuing as the surviving corporation (the "Merger") upon the terms
and subject to the conditions set forth in the Merger Agreement (capitalized
terms used herein without definition shall have the respective meanings
specified in the Merger Agreement as of the date hereof);
WHEREAS, simultaneously with the execution of this Agreement, each of
American Airlines, Inc., Delta Air Lines, Inc., Northwest Airlines, Inc. and
United Air Lines, Inc. ("United") (each, an "Other Stockholder") are entering
into a Stockholder Agreement with Parent and Purchaser, dated as of the date
hereof, in the forms attached hereto as Exhibits B(aa), B(dl), B(nw) and B(ua),
as applicable (each such Stockholder Agreement, an "Other Stockholder
Agreement", and the Other Stockholder Agreement to which United is party (the
"United Agreement");
WHEREAS, simultaneously with the execution of this Agreement, Jeffrey
Katz is entering into a Stockholder Agreement with Parent and Purchaser, dated
as of the date hereof, in the form attached hereto as Exhibit C (the "Katz
Agreement"); and
WHEREAS, as a condition to the willingness of Parent and the Purchaser
to enter into the Merger Agreement and as an inducement and in consideration
therefor, Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholder.
Stockholder hereby represents and warrants to Parent and the Purchaser as
follows:
(a) Stockholder (i) is the record and beneficial owner of the shares
of Common Stock (collectively with any shares of Common Stock which such
Stockholder may acquire at any time in the future during the term of this
Agreement are collectively referred to herein as the "Shares") set forth
opposite Stockholder's name on Schedule I to this Agreement and (ii) neither
holds nor has any beneficial ownership interest in any option (including any
granted pursuant to a Company Option Plan), or warrant to acquire shares of
Common Stock or other right or security convertible into or exercisable or
exchangeable for shares of Common Stock. Stockholder does not beneficially own
any shares of Class A Common Stock.
(b) Each of this Agreement, the Written Consent of Holder of Class B
Common Stock of Stockholder approving the Merger under Section 8.2(a) and
Section 8.2(b) of the Company Certificate, the Written Consent Qualifying Class
B Holder of Stockholder approving the Merger under Section 8.2(c) of the
Company Certificate (collectively, the "Written Consents") and the Company
Stockholders Agreement Waiver (as defined in Section 6(c)) each case executed
by Stockholder prior to or concurrently with the execution of this Agreement
has been validly executed and delivered by Stockholder and constitutes the
valid and binding obligation of Stockholder, enforceable against such
Stockholder in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, and (ii) that
the availability of the remedy of specific performance or injunctive or other
forms of equitable relief may be subject to equitable defenses and would be
subject to the discretion of the court before which any proceeding therefor may
be brought.
(c) Neither the execution and delivery of this Agreement, the Written
Consents or the Company Stockholders Agreement Waiver by Stockholder nor the
consummation by Stockholder of the transactions contemplated hereby or thereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which Stockholder is a party or by which Stockholder
or Stockholder's assets are bound, other than the Amended and Restated
Stockholders Agreement, dated December 19, 2003, as amended by Amendment No. 1
to the Amended and Restated Stockholder Agreement dated April 14, 2004 (the
"Company Stockholders Agreement") (in connection therewith, assuming the
Bankruptcy Court Approval is obtained, any consent required thereunder has been
obtained pursuant to the Company Stockholders Agreement Waiver or otherwise on
or prior to the date hereof). The consummation by Stockholder of the
transactions contemplated hereby or by the Written Consents or the Company
Stockholders Agreement Waiver will not (i) violate any provision of any
judgment, order, decree applicable to Stockholder or (ii) require any consent,
approval, or notice under any statute, law, rule or regulation applicable to
Stockholder other than (x) as required under the Exchange Act and the rules and
regulations promulgated thereunder and (y) where the failure to obtain such
consents or approvals or to make such notifications, would not, individually or
in the aggregate, prevent or materially delay the performance by Stockholder of
any of its obligations under this Agreement.
(d) Stockholder is an entity duly organized and validly existing under
the laws of the state in which it is incorporated or constituted, and such
Stockholder has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary corporate action to authorize the execution,
delivery and performance by Stockholder of this Agreement.
(e) The Shares and the certificates, if any, representing the Shares
owned by Stockholder are now, and at all times during the term hereof will be,
held by Stockholder, by a nominee or custodian for the benefit of Stockholder
or by the depository under the Offers, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, options, rights,
understandings or arrangements or any other encumbrances or restrictions
whatsoever on title, transfer, or exercise of any rights of a shareholder in
respect of such Shares (collectively, "Encumbrances"), except for (i) any such
Encumbrances arising hereunder or under the Company Stockholders Agreement (in
connection therewith any restrictions on transfer or any other Encumbrances
have been waived by appropriate consent), (ii) any rights, agreements,
understandings or arrangements which represent a financial interest in cash
received upon sale of the Shares and (iii) Encumbrances imposed by federal or
state securities laws (collectively, "Permitted Encumbrances").
(f) Stockholder (i) does not own (and has not owned) any stock (or any
right to acquire stock), security, or other interest (or any right to acquire
any capital stock, security or other interest) of SAM Investments LDC, a Cayman
Islands Company ("SAM"), and (ii) does not own (and has not owned) any bonds,
debentures, notes or other indebtedness of SAM. Except for the Stock Purchase
Agreement, dated November 25, 2003, by and among American Airlines, Inc.,
Continental Airlines, Inc., Omicron Reservations Management, Inc., Northwest
Airlines, Inc., UAL Loyalty Services, Inc. and SAM, no agreements have been
entered into between Stockholder (or any of its affiliates), on the one hand,
and SAM (or any of its affiliates), on the other hand. Since the closing of the
Stock Purchase Agreement, neither Stockholder nor any of its affiliates have
owned any shares of non-voting stock of the Company.
SECTION 2. Representations and Warranties of Parent and the Purchaser.
Each of Parent and the Purchaser hereby, jointly and severally, represents and
warrants to Stockholder as follows:
(a) Each of Parent and the Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and each of Parent and the Purchaser has all requisite corporate power and
authority to execute and deliver this Agreement, each Other Stockholder
Agreement, the Katz Agreement and the Merger Agreement and to consummate the
transactions contemplated hereby and thereby, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement, each Other Stockholder Agreement, the Katz Agreement and the Merger
Agreement.
(b) This Agreement, each Other Stockholder Agreement, the Katz
Agreement and the Merger Agreement have been duly authorized, executed and
delivered by each of Parent and the Purchaser, and constitute the valid and
binding obligations of each of Parent and the Purchaser, enforceable against
each of them in accordance with their terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) the availability of the remedy of specific performance or injunctive or
other forms of equitable relief may be subject to equitable defenses and would
be subject to the discretion of the court before which any proceeding therefor
may be brought.
(c) Neither the execution and delivery of this Agreement, the Merger
Agreement, any Other Stockholder Agreement or the Katz Agreement by each of
Parent and Purchaser nor the consummation by Parent and Purchaser of the
transactions contemplated hereby or thereby will result in a violation of, or a
default under, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which either Parent or Purchaser is a
party or by which either Parent or Purchaser or their respective assets are
bound. The consummation by Parent and Purchaser of the transactions
contemplated by this Agreement, the Merger Agreement, any Other Stockholder
Agreement and the Katz Agreement will not (i) violate any provision of any
judgment, order or decree applicable to Parent or Purchaser or (ii) require any
consent, approval or notice under any statute, law, rule or regulation
applicable to either Parent or Purchaser, other than (x) filings under the
Exchange Act and the rules and regulations promulgated thereunder and (y) where
the failure to obtain such consents or approvals or to make such notifications,
would not, individually or in the aggregate, prevent or materially delay the
performance by either Parent or Purchaser of any of their obligations under
this Agreement, each Other Stockholder Agreement, the Katz Agreement and the
Merger Agreement.
SECTION 3. Tender of the Shares.
(a) Stockholder hereby agrees that it shall irrevocably tender (and
deliver any certificates evidencing) its Shares, or cause its Shares to be
irrevocably tendered, into the Class B Offer promptly following, and in any
event no later than the first business day following, the commencement of the
Class B Offer pursuant to Section 1.1 of the Merger Agreement (the "Offer
Documents") in accordance with the procedures set forth in the Offer Documents,
free and clear of all Encumbrances (other than Permitted Encumbrances);
provided that Parent and Purchaser agree that Stockholder may withdraw its
Shares from the Class B Offer at any time following the termination of this
Agreement or as otherwise provided pursuant to Section 9 hereof.
(b) Stockholder's counsel shall be given a reasonable opportunity to
review the Offer Documents relating to the Class B Offer before it is commenced
and Parent and Purchaser shall give due consideration to all reasonable
additions, deletions or changes suggested thereto. Parent and Purchaser agree
to provide the Stockholder and its counsel in writing with any comments,
whether written or oral, that Parent, Purchaser or their counsel may receive
from time to time from the SEC or its staff with respect to the the Offer
Documents promptly after Parent's or Purchaser's, as the case may be, receipt
of such comments, and any written or oral responses thereto. Stockholder and
its counsel shall be given a reasonable opportunity to review any such written
responses and Parent and Purchaser shall give due consideration to all
reasonable additions, deletions or changes suggested thereto by the Stockholder
and its counsel.
(c) If the Offers are terminated or withdrawn by the Purchaser, or the
Merger Agreement is terminated prior to the purchase of Shares in the Offers,
Parent and Purchaser shall promptly return, and shall cause any depository or
paying agent, including the Paying Agent, acting on behalf of Parent and
Purchaser, to return all tendered Shares to the registered holders of the
Shares tendered in the Offers.
SECTION 4. Stockholder Acknowledgements. Stockholder acknowledges as
follows:
(a) The obligations of Stockholder set forth under Section 8 of the
Company Stockholders Agreement, including but not limited to the obligation to
continue to be a party to and perform its obligations under the Charter
Associate Agreement to which such Stockholder is a party, shall remain in full
force and effect following the termination of the Company Stockholders
Agreement until December 18, 2005, but subject to the terms and conditions
contained in such Charter Associate Agreement (provided that any notice of
termination pursuant to Section 6.1 thereof will not be effective prior to
December 18, 2005).
(b) The consummation of the transactions contemplated by the Merger
Agreement or this Agreement, including (i) the purchase of Shares by Purchaser
(pursuant to the Offers) and (ii) the Merger or, as of the date hereof to the
knowledge of any officer of Stockholder, any other circumstance or event
existing or previously existing, does not, and will not, trigger, or otherwise
give to Stockholder, any right to terminate the Supplier Link Agreement with
the Company to which such Stockholder is party.
(c) As of the date hereof, to the knowledge of any officer of
Stockholder, the Company's current practices with respect to the sale, whether
through the receipt of commissions or other form of payment, and display of
advertising or banners (including those that contain links) on the Orbitz
website do not, in each case, conflict with or violate any restrictions
(including the order of display or otherwise) with respect to the selling or
marketing activities binding on the Company (whether such restrictions exist
pursuant to the Charter Associate Agreement to which such Stockholder is a
party or otherwise).
(d) Subject to the provisions of Section 9(c) of this Agreement,
assuming Stockholder and all Other Stockholders transfer their Shares to
Purchaser in the Class B Offer, unless earlier terminated by the parties
thereto, the Company Stockholders Agreement shall terminate upon purchase and
payment in full to Stockholder and all Other Stockholders for all of their
Shares in accordance with the terms of the Company Stockholders Agreement and
no party shall have any further liability thereunder.
SECTION 5. Transfer of the Shares; Other Actions.
(a) Prior to the termination of this Agreement, except as otherwise
provided herein (including pursuant to Section 3 or Section 6) or in the Merger
Agreement, Stockholder shall not, and shall cause each of its subsidiaries not
to: (i) transfer, assign, sell, gift-over, pledge or otherwise dispose (whether
by sale, liquidation, dissolution, dividend or distribution) of, create or
suffer to exist any Encumbrances (other than Permitted Encumbrances) on or
consent to any of the foregoing ("Transfer"), any or all of the Shares or any
right or interest therein; (ii) enter into any contract, option or other
agreement, arrangement or understanding with respect to any Transfer; (iii)
grant any proxy, power-of-attorney or other authorization or consent with
respect to any of the Shares with respect to any matter that is, or that is
reasonably likely to be exercised in a manner, inconsistent with the
transactions contemplated by the Merger Agreement or the provisions thereof;
(iv) deposit any of the Shares into a voting trust, or enter into a voting
agreement or arrangement with respect to any of the Shares; (v) voluntarily
convert any of such Stockholder's Shares into shares of Class A Common Stock or
take any action that would cause the conversion of such Stockholder's Shares
into shares of Class A Common Stock; or (vi) knowingly, directly or indirectly,
take or cause the taking of any other action (other than such actions (if any)
which are permitted under Section 7(b)(ii) hereof) that would restrict, limit
or interfere with the performance of such Stockholder's obligations hereunder
or the transactions contemplated hereby, excluding any bankruptcy filing.
(b) Upon receipt of payment in full for all of its Shares, Stockholder
agrees that any and all rights incident to its ownership of Shares (including
any rights to recover amounts, if any, that may be determined to be due to any
stockholder or former stockholders of Company), including but not limited to
rights arising out of a such Stockholder's ownership of Shares prior to the
transfer of such Shares to Purchaser or Parent pursuant to the Class B Offer or
pursuant to the Merger Agreement, shall be transferred to Purchaser and Parent
upon the transfer to Purchaser or Parent of such Stockholder's Shares.
SECTION 6. Merger Consent; Grant of Irrevocable Proxy; Appointment of
Proxy.
(a) Immediately following execution of the Merger Agreement,
Stockholder will have delivered to the Company at its principal place of
business, on and as of the date of this Agreement, a written consent approving
the Merger, the Merger Agreement and the Transactions contemplated thereby,
such approval to be effective immediately and irrevocable for purposes of
Section 8.2 of the Company Certificate and Section 228 of the DGCL with respect
to Stockholder. Stockholder acknowledges that any required approval of the
Merger, the Merger Agreement and the Transactions contemplated thereby by the
holders of Class B Shares as a class shall be effective (a) as of the date
hereof with respect to Sections 8.2(a) and 8.2(b) of the Company Certificate
and (b) subject only to (x) United obtaining the Bankruptcy Court Approval (as
such term is defined in the United Agreement) and (y) the requirements of
Section 228 of the DGCL, as of the date that the Bankruptcy Court Approval is
granted with respect to Section 8.2(c) of the Company Certificate. If the
Merger Agreement has not been terminated by the 60th day after the date of this
Agreement, by such date United has not obtained the Bankruptcy Court Approval,
and the approval of the Merger, the Merger Agreement and the Transactions
contemplated by the Merger Agreement by such Stockholder continues to be
required pursuant to Section 8.2(c) of the Company Certificate, Stockholder
agrees to promptly re-deliver to the Company at its principal place of
business, on and as of such date, a written consent approving the Merger, the
Merger Agreement and the Transactions contemplated thereby for purposes of
Section 8.2(c) of the Company Certificate.
(b) Stockholder hereby consents for purposes of Section 2(f) of the
Company Stockholders Agreement, to the actions taken (including the rights
granted to Parent) by each of the Other Stockholders pursuant to Sections 6(d)
and 6(f) (or, in the case of the United Agreement, Sections 7(d) and 7(f)) of
the Other Stockholder Agreement to which each such Other Stockholder is a
party. The rights granted by Stockholder to Parent pursuant to Sections 6(d)
and 6(f) of this Agreement shall be effective only upon the granting of the
Bankruptcy Court Approval.
(c) Subject to the provisions of Section 9(c) hereof, concurrently
with the execution of this Agreement by Stockholder, Stockholder and the
Company have each executed the Company Stockholders Agreement Consent and
Waiver (the "Company Stockholders Agreement Waiver"), which provides that the
provisions of Section 1 through 22 of the Company Stockholders Agreement are
waived in their entirety with respect to (i) the Merger Agreement and the
consummation of the transactions contemplated thereby, including, without
limitation, the Offers and the Merger; and (ii) this Agreement and the Other
Stockholders Agreements and the transactions contemplated thereby, including,
without limitation, (A) the agreement to tender such Class B Stockholder's
shares of Class B Common Stock into the Class B Offer, (B) the grant to Parent
of any proxy to vote any shares held by such Class B Stockholder, (C) the
agreement to vote shares of Class B Common Stock as instructed by Parent in
writing, which is a voting agreement and (D) any requirement under Section 4.3
of the Company Stockholders Agreement that Purchaser (or any transferee or
assignee thereof) as transferee in the Class B Offer (i) be subject to the
terms and conditions of the Company Stockholders Agreement and (ii) assume (in
writing or otherwise) any obligations under the Company Stockholders Agreement,
in either case ((i) and (ii)) upon, or as a condition to, a "Qualified
Transfer" (as defined in the Company Certificate).
(d) Without in any way limiting Stockholder's right to vote the Shares
in its sole discretion on any other matters that may be submitted to a
stockholder vote, consent or other approval, Stockholder hereby agrees to
irrevocably grant to, and appoint, and, upon the granting of the Bankruptcy
Court Approval, irrevocably grants to, and appoints, Parent and any designee
thereof, Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Stockholder, to
attend any meeting of the stockholders of the Company on behalf of such
Stockholder, to include such Shares in any computation for purposes of
establishing a quorum at any meeting of stockholders of the Company, and to
vote all Shares beneficially owned or controlled by such Stockholder (the "Vote
Shares"), or to grant a consent or approval in respect of the Vote Shares, in
connection with any meeting of the stockholders of the Company or any action by
written consent in lieu of a meeting of stockholders of the Company (i) in
favor of the Merger or any other transaction pursuant to which Parent proposes
to acquire the Company, whether by tender offer or merger in which stockholders
of the Company would receive cash consideration per share of Common Stock equal
to or greater than the consideration to be received by such stockholders in the
Offers and the Merger and otherwise on the same terms as the Offers and the
Merger and/or (ii) against any action or agreement which would in any material
respect impede, interfere with or prevent the Merger, including, but not
limited to, any other extraordinary corporate transaction, including, a merger,
acquisition, sale, consolidation, reorganization or liquidation involving the
Company and a third party, or any other proposal of a third party to acquire
the Company or all or substantially all of the assets thereof.
(e) Stockholder hereby represents that any proxies heretofore given in
respect of the Shares, if any, are revocable, and hereby revokes such proxies
(other than those granted under the Company Stockholders Agreement).
(f) Subject to the provisions of Section 9(c) hereof, Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 6 is to be
given, and when given will be, in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is to be given, and when given is,
to secure the performance of the duties of Stockholder under this Agreement.
Stockholder hereby further affirms that the irrevocable proxy is to be, and
when given will be, coupled with an interest and, except as set forth in this
Section or in Section 9, is intended to be irrevocable in accordance with the
provisions of Section 212 of the DGCL. If during the term of this Agreement for
any reason the proxy granted herein is not irrevocable, then such Stockholder
agrees, subject to the granting of the Bankruptcy Court Approval, that it shall
vote its Shares in accordance with Section 6(d) above as instructed by Parent
in writing. The parties agree that, subject to granting of the Bankruptcy Court
Approval, the foregoing shall be a voting agreement created under Section 218
of the DGCL.
(g) Concurrently herewith, Stockholder has delivered the resignation
of its director designee to the Company's Board of Directors, such resignation
to be effective upon the purchase and payment in full for such Stockholder's
Shares by Purchaser in the Class B Offer.
SECTION 7. Acquisition Proposals; Non-Solicitation.
(a) Acquisition Proposals
(i) Stockholder will notify Parent and the Purchaser as
promptly as practicable (and in any event within 2 business days) if
any Acquisition Proposals are received by, or, in connection with any
Acquisition Proposal, any information is requested from or any
negotiations or discussions are sought to be initiated or continued
with, Stockholder or Stockholder's officers, directors, employees,
investment bankers, attorneys, accountants or other agents, if any,
which notice shall include the identity of the Person making such
information request or Acquisition Proposal and the material terms and
conditions of such Acquisition Proposal or information request.
Stockholder agrees that it will immediately cease and terminate any of
its existing activities, discussions, negotiations or communications
with any parties with respect to any Acquisition Proposal.
(b) Non-Solicitation.
(i) Stockholder shall not and shall not authorize or
permit its representatives to directly or indirectly (i) initiate,
solicit encourage, or take any action to facilitate the making of, any
offer or proposal which constitutes or is reasonably likely to lead to
any Acquisition Proposal, (ii) enter into any agreement (other than a
confidentiality agreement) with respect to any Acquisition Proposal
except in connection with a Superior Proposal in connection with which
the Company enters into an agreement (including contemporaneously with
the Company) pursuant to Section 5.3(b) of the Merger Agreement, or
(iii) in the event of an unsolicited Acquisition Proposal for the
Company or otherwise, engage in negotiations or discussions with, or
provide any non-public information or data to, any Person (other than
Parent or any of its affiliates or representatives) relating to any
Acquisition Proposal. It is understood that this Section 7 limits the
rights of Stockholder only to the extent that Stockholder is acting in
Stockholder's capacity as a stockholder of the Company. Nothing herein
shall be construed as preventing a Stockholder who is an officer or
director of the Company, or any director of the Company who may be
deemed to be an affiliate of Stockholder, from fulfilling the
obligations of such position (including, subject to the limitations
contained in Sections 5.2 and 5.3 of the Merger Agreement, the
performance of obligations required by the fiduciary obligations of
Stockholder, or any director of the Company who may be deemed to be an
affiliate of Stockholder, acting solely in his or her capacity as an
officer or director).
(ii) Notwithstanding anything to the contrary in this
Section 7, if (a) after the Company shall have received an unsolicited
bona fide written proposal from a Third Party relating to an
Acquisition Proposal and (b) the Board of Directors of the Company has
complied with the provisions of Section 5.2(b) of the Merger
Agreement, Stockholder may provide information and engage in
discussions with such Third Party as and to the extent that the
Company is permitted to do so pursuant to the terms of the Merger
Agreement.
SECTION 8. Further Assurances. Each party shall execute and deliver
any additional documents and take such further actions as may be reasonably
necessary or desirable to carry out all of the provisions hereof, including all
of the parties' obligations under this Agreement, including without limitation
(i) to vest in Parent the power to vote the Shares to the extent contemplated
by Section 6 and (ii) for Parent to perform its obligations pursuant to this
Agreement including as contemplated by Section 12(n).
SECTION 9. Termination.
(a) This Agreement and, except as provided in Section 9(c), all rights
and obligations of the parties hereunder shall terminate (i) upon termination
of the Merger Agreement, (ii) at the election of the Stockholder, following
termination of the Class B Offer if Purchaser has not accepted the Shares for
payment in the Offers, (iii) at the election of the Stockholder, if acceptance
for payment of, and prompt payment for, the Shares pursuant to the Offers has
not occurred following December 31, 2004; provided, however, that such date (x)
shall be extended to January 31, 2005 if all conditions to the Offers other
than the Litigation Condition (which results in an injunction), the
Governmental Approval Condition (which for purposes of this Section 9(a)(iii)
also shall be deemed to include the conditions set forth in paragraphs (h) and
(j) (to the extent arising out of litigation) of Annex I of the Merger
Agreement), the Stockholder Approval Condition or the HSR Condition have been
or are reasonably capable of being satisfied at the time of such extension and
(y) shall be extended to April 30, 2005 if all conditions to the Offers other
than the HSR Condition or the Litigation Condition (to the extent relating
solely to antitrust and competition law matters) have been or are capable of
being satisfied at the time of such extension; or (iv) pursuant to Section
12(n)(ii)(C). In addition, Stockholder may terminate this Agreement, withdraw
the tender of its Shares into the Class B Offer and have no further obligations
hereunder if there is a Material Change (as defined below) to the Merger
Agreement or the Offers without Stockholder's consent. "Material Change" means
(i) an amendment to or waiver of any provision of the Merger Agreement that (w)
reduces the amount of the Offer Price or changes the form of consideration to
be paid in the Class B Offer or any other amendment to or waiver of the Merger
Agreement that is economically detrimental to Stockholder, provided, that, if
such other amendment or waiver does not also reduce the amount of the Offer
Price or change the form of consideration to be paid in the Class B Offer, 3
out of 5 of the airline stockholders (including Stockholder and the Other
Stockholders) shall have notified Parent that they believe such other amendment
or waiver is so detrimental, (x) waives or amends Sections 1.3 (Directors) (but
only insofar as it relates to the director appointed by Stockholder) or 7.1
(Conditions to Each Party's Obligations to Effect the Merger) of the Merger
Agreement, (y) waives or amends Section 8.3 of the Merger Agreement or (z)
modifies any defined term used in any of the provisions referred to in clauses
(w), (x) or (y) above or (ii) materially modifies or waives any condition to
the consummation of the Class B Offer in a manner adverse to Stockholder. All
of Stockholder's termination rights contained in this Section 9(a) shall be
effective notwithstanding the prior delivery by Stockholder of the Written
Consents, whether such Written Consents are effective or not.
(b) Notwithstanding anything to the contrary in this Agreement, if any
Other Stockholder Agreement is amended or modified without Stockholder's
consent, or if any waiver is granted under any Other Stockholder Agreement to
any Other Stockholder, then Parent and Purchaser shall notify Stockholder of
such circumstance and, in the event of a waiver, shall offer substantially the
same waiver to Stockholder, and Stockholder may elect in its sole discretion
(i) in the case of such an amendment or modification, to deem this Agreement
amended or modified to reflect the substantially the same amendment or
modification of such Other Stockholder Agreement, (ii) in the case of such a
waiver, to accept such waiver or (iii) to terminate this Agreement and withdraw
the tender of its Shares into the Class B Offer and upon any such withdrawal of
its Shares into the Class B Offer, each of the provisions of Section 9(c)
hereof shall become immediately applicable. All of Stockholder's termination
rights contained in this Section 9(b) shall be effective notwithstanding the
prior delivery by Stockholder of the Written Consents, whether such Written
Consents are effective or not.
(c) Sections 9(c), 10 and 12 shall survive any termination of this
Agreement. If (A) by the express terms and conditions of Section 9 hereof, this
Agreement is terminated without the requirement of any action by the
Stockholder whatsoever, and such Stockholder withdraws the tender of its Shares
into the Class B Offer, or (B) pursuant to Section 9(b) hereof, the Stockholder
elects to terminate this Agreement and the Stockholder withdraws the tender of
its Shares into the Class B Offer pursuant to Section 3(a) or Section 9 hereof,
then the parties hereto agree that they shall be restored to the conditions
existing prior to the execution of this Agreement or any other documents
entered into in connection with the transactions contemplated herein or in the
Merger Agreement (such conditions, the "Original Conditions"), including but
not limited to the following: (i) the Company Stockholders Agreement Waiver,
shall cease to be valid without any further action whatsoever by the
Stockholder and Parent and Purchaser acknowledge and agree that the prior
waiver of provisions of the Company Stockholders Agreement shall be revoked and
shall be null and void ab initio; (ii) the irrevocable proxy by Stockholder
with respect to such Shares in Section 6(d) hereof shall be revoked and shall
be null and void ab initio; (iii) the voting agreement with respect to such
Shares created in Section 6(f) hereof by virtue of the Stockholder's agreement
to vote its Shares in accordance with Section 6(c) hereof as instructed by
Parent in writing shall be revoked and shall be null and void ab initio; (iv)
the Company Stockholders Agreement shall not be terminated pursuant to Section
4(d) hereof or otherwise, but instead shall be reinstated and in full force and
effect and binding upon the Stockholders remaining as parties thereto and the
Company; (v) the director resignation described in Section 6(g) hereof shall be
revoked and shall be void ab initio; (vi) Purchaser and Parent shall take any
action necessary to ensure that all rights incident to ownership of the Shares
(including but not limited to any rights to recover amounts, if any, that may
be determined to be due to any stockholder or former stockholder of the
Company, rights arising out of Purchaser's or Parent's ownership of Shares
prior to the transfer of such Shares back to Stockholder, rights to
representation on the Board of Directors, any distributions or other payments
received from the Company with respect to the Shares and voting rights as a
Class B Common Stockholder) shall be transferred to Stockholder so that
Stockholder is restored to the Original Conditions with respect to its rights
of ownership with respect to the Shares and (vii) Purchaser and Parent agree
not to use or deliver to the Company the Written Consents and irrevocable
proxies executed and delivered by Stockholder in accordance with this
Agreement; provided that, notwithstanding the foregoing or anything else set
forth in this Agreement, upon termination of this Agreement (i) the Written
Consents shall not be revoked and (ii) the waiver contained in the Company
Stockholders Agreement Waiver with respect any requirement under Section 4.3 of
the Company Stockholders Agreement that Purchaser (or any transferee or
assignee thereof) as transferee in the Class B Offer (i) be subject to the
terms and conditions of the Company Stockholders Agreement and (ii) assume (in
writing or otherwise) any obligations under the Company Stockholders Agreement,
in either case ((i) and (ii)) upon, or as a condition to, a "Qualified
Transfer" (as defined in the Company Certificate) shall not be revoked (and
shall be irreversibly waived with respect to such transfer of Class B Shares to
Purchaser in the Class B Offer), and accordingly any such transfer of Shares to
Purchaser in the Class B Offer shall as a "Qualified Transfer" pursuant to the
Company Certificate (and without any obligation of Purchaser to join or
otherwise assume obligations under the Company Stockholders Agreement).
SECTION 10. Expenses. All fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such fees, costs and expenses.
SECTION 11. Public Announcements. Stockholder, Parent and the
Purchaser shall consult each other on the initial press release relating to
this Agreement and the transactions contemplated hereby.
SECTION 12. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by a nationally recognized overnight courier service,
such as Federal Express (providing proof of delivery), to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to Stockholder, to:
Continental Airlines, Inc.
1600 Smith Street HQSLG
Houston, TX 77002
Attention: SVP, General Counsel & Corporate Secretary
Telephone: 713-324-5207
Facsimile: 713-324-5161
Hughes Hubbard & Reed
One Battery Park Plaza
New York, New York 10004
Attention: Kenneth A. Lefkowitz, Esq.
Telephone: (212) 837-6557
Facsimile: (212) 422-4726
with a copy to:
Orbitz, Inc.
200 S. Wacker Drive, Suite 1900
Chicago, IL 60606
Attention: Gary R. Doernhoefer, Esq.
Telephone: (312) 894-4755
Facsimile: (312) 894-4857
with copies to:
Latham & Watkins LLP
Sears Tower, Suite 5800
233 S. Wacker Drive
Chicago, IL 60606
Attention: Mark D. Gerstein, Esq.
Telephone: (312) 876-7666
Facsimile: (312) 993-9767
If to Parent or the Purchaser, to:
Cendant Corporation
9 West 57th Street
New York, NY 10019
Telephone: (212) 413-1836
Facsimile: (212) 413-1922
Attention: Eric Bock, Esq.
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
Attention: David Fox, Esq.
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed manually or by
facsimile by the parties hereto in any number of counterparts, each of which
shall be considered one and the same agreement and shall become effective when
a counterpart hereof shall have been signed by each of the parties and
delivered to the other parties.
(d) Entire Agreement. This Agreement (together with the Merger
Agreement and any other documents and instruments referred to herein and
therein or entered into by the parties in connection with the Merger or this
Agreement) constitutes the entire agreement among the parties with respect to
the subject matter hereof and thereof and supersedes all other prior agreements
and understandings, both written and oral, among the parties or any of them
with respect to the subject matter hereof and thereof.
(e) Governing Law, Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to the principles of conflicts of law thereof. Each of the
parties hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the Court of Chancery of the State of Delaware, and
any appellate court thereof, for any litigation arising out of or relating to
this Agreement or the agreements delivered in connection herewith or the
transactions contemplated hereby or thereby, to the extent the Court of
Chancery has jurisdiction over the claims alleged in such litigation, or, if
the Court of Chancery does not have jurisdiction over the claims alleged in
such litigation, the courts of the State of Delaware and of the United States
of America located in the State of Delaware, and each of the parties hereby
irrevocably and unconditionally (i) agrees not to commence any such litigation
except in such courts, (ii) waives any objection to the laying of venue of any
such litigation in such Delaware courts and (iii) agrees not to plead or claim
in any Delaware court that such litigation brought therein has been brought in
an inconvenient forum. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section12(a). Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
(f) Waiver of Jury Trial. EACH PARTY IS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES
SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 12(f).
(g) Assignment. Prior to the earlier to occur of (i) the termination
of the Merger Agreement or (ii) the consummation of the Merger, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (other than in the case of a merger or
consolidation where the successor assumes the obligations hereunder) without
the prior written consent of the other parties except that Parent and the
Purchaser may assign, in their sole discretion and without the consent of any
other party, any or all of their rights, interests and obligations hereunder to
each other or to one or more direct or indirect wholly-owned subsidiaries of
Parent (each, an "Assignee"); provided that no such assignment shall relieve
Parent or Purchaser of any of their respective obligations under this
Agreement. Any such Assignee may thereafter assign, in its sole discretion and
without the consent of any other party, any or all of its rights, interests and
obligations hereunder to one or more additional Assignees. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by, the parties and their respective successors and
permitted assigns, and the provisions of this Agreement are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(h) Severability of Provisions. If any term or provision of this
Agreement is invalid, illegal or incapable of being enforced by rule of law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in
any manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions are fulfilled to the extent possible.
(i) Specific Performance. It is recognized and expressly agreed by the
parties hereto that monetary damages would be inadequate to compensate for
breach of this Agreement and that rights which are subject to this Agreement
are unique and are of such a nature as to be inherently difficult or impossible
to value monetarily. Accordingly, notwithstanding any other provision of this
Agreement, the Merger Agreement, the Other Stockholder Agreements or the Katz
Agreement, the parties agree that any violation or alleged violation of this
Agreement shall cause irreparable injury, and that, in addition to any other
remedy available under this Agreement, the parties hereto shall be entitled
immediately to obtain injunctive relief, preliminary or otherwise, to enjoin
such breach or the continuation of any such breach, without the necessity of
proving actual damages, and the terms of this Agreement shall be enforceable in
court by a decree of specific performance. Such remedies shall be cumulative
and not exclusive, and shall be in addition to any other remedies that the
parties hereto may have hereunder. To the extent permitted by applicable law,
each party waives any objection to the imposition of such decree of specific
performance or any requirement for a posting of a bond.
(j) Amendment. No amendment or modification of this Agreement shall be
effective unless it shall be in writing and signed by each of the parties
hereto, and no waiver or consent hereunder shall be effective against any party
unless it shall be in writing and signed by such party. In the case of Parent
and Purchaser, no amendment, modification or waiver shall be effective unless
signed in writing by any two of Messrs. Sam Katz, James E. Buckman or Eric Bock
(or their successors) provided such persons are executive officers of Cendant.
(k) Binding Nature. This Agreement is binding upon and is solely for
the benefit of the parties hereto and their respective successors, legal
representatives and assigns.
(l) FIRPTA Certificates. Prior to the purchase of Shares pursuant to
Section 3 hereof, Stockholder shall provide to Parent, Purchaser or the Paying
Agent (as defined in the Merger Agreement), as the case may be, a certificate
of non-foreign status as provided in Treasury Regulation Section 1.1445-2(b)
(the "FIRPTA Certificate"). If a Stockholder fails to deliver the FIRPTA
Certificate, Parent, Purchaser or the Paying Agent, as the case may be, shall
be entitled to withhold the amount required to be withheld pursuant to Section
1445 of the Code from amounts otherwise payable to Stockholder pursuant to the
Merger Agreement or this Agreement.
(m) No Recourse. Purchaser and Parent agree that Stockholder will not
be liable for claims, losses, damages, liabilities or other obligations
resulting from the Company's breach of the Merger Agreement.
(n) Additional Agreements.
(i) Effective upon the consummation of the Merger, Parent
shall be deemed to have assumed all obligations of the Company under
that certain Tax Agreement dated as of November 25, 2003 (the "Tax
Agreement") by and among the Company and the Airlines (as such term is
defined in the Tax Agreement) as required by Section 3.1g thereof. In
the event that Purchaser consummates the Class B Offer, Parent and
Purchaser agree that they shall promptly consummate the Merger if the
conditions to Parent's and Purchaser's obligations to consummate the
Merger contained in Section 7.1 of the Merger Agreement are satisfied
and following their compliance with Section 1.9 of the Merger, any
applicable requirement to file any information statement in connection
with the Merger or Section 1.10 of the Merger Agreement.
(ii) If, for any reason, the covenants contained in
clause (i) above are not fully performed by Parent and/or Purchaser,
then, at Stockholder's option, the parties hereto agree that they
shall be restored to the Original Conditions and without limitation
shall take the following actions: (x) (A) Purchaser shall promptly,
but in no event later than one business day after receiving a written
demand from Stockholder, transfer to Stockholder all Shares, and all
right and interest therein, that were tendered by Stockholder into the
Class B Offer, (B) if it was terminated upon consummation of the Class
B Offer, the Company Stockholders Agreement shall be reinstated and in
full force and effect and binding upon the Company, Stockholder and
any Other Stockholders that hold shares of Class B Common Stock in
accordance with its terms (other than as set forth in the last
sentence of this Section 12(n)(ii)), (C) this Agreement shall
terminate and any and all consents (other than the Written Consents)
and/or proxies granted by Stockholder in this Agreement or in
connection with the transactions contemplated hereby or by the Merger
Agreement (including without limitation, the proxy by Stockholder
contained in Section 6(d) and the voting agreement created in Section
6(f)) shall be revoked and shall be null and void ab initio, (D) the
director resignation described in Section 6(g) shall be revoked and
shall be null and void ab initio, (E) Purchaser and Parent shall take
any action necessary to ensure that all rights incident to ownership
of the Shares (including but not limited to any rights to recover
amounts, if any, that may be determined to be due to any stockholder
or former stockholder of the Company, rights arising out of
Purchaser's or Parent's ownership of Shares prior to the transfer of
such Shares back to Stockholder, rights to representation on the Board
of Directors, any distributions or other payments received from the
Company with respect to the Shares and voting rights as a Class B
Common Stockholder) shall be transferred to Stockholder so that
Stockholder is restored to the Original Conditions with respect to its
rights of ownership with respect to the Shares and (F) Purchaser and
Parent agree not to use or deliver to the Company the irrevocable
proxies executed and delivered by Stockholder in accordance with this
Agreement and (y) Stockholder shall, upon Parent and Purchaser's
satisfaction of their obligations in clause (x) above, refund to
Purchaser the amount paid by Purchaser to Stockholder for such Shares
in full. The Company agrees that it will cooperate with Stockholder to
facilitate any transactions or actions contemplated in Section 9(c) or
this Section 12(n)(ii). Notwithstanding anything set forth in this
Section 12(n)(ii), this Agreement, any termination of this Agreement
or any actions taken pursuant to this Agreement (i) in no event shall
the Written Consents be revocable or revoked by Stockholder and (ii)
the waiver contained in the Company Stockholders Agreement Waiver with
respect any requirement under Section 4.3 of the Company Stockholders
Agreement that Purchaser (or any transferee or assignee thereof) as
transferee in the Class B Offer (x) be subject to the terms and
conditions of the Company Stockholders Agreement and (y) assume (in
writing or otherwise) any obligations under the Company Stockholders
Agreement, in either case ((x) and (y)) upon, or as a condition to, a
"Qualified Transfer" (as defined in the Company Certificate) shall
remain in full force and effect (and shall be irreversibly waived with
respect to such transfer of Class B Shares to Purchaser in the Class B
Offer), and accordingly any such transfer of Shares to Purchaser in
the Class B Offer shall qualify as a "Qualified Transfer" pursuant to
the Company Certificate (and without any obligation of Purchaser to
join or otherwise assume obligations under the Company Stockholders
Agreement).
(o) Performance of Purchaser. Parent agrees to cause Purchaser to
perform and pay all of its obligations under this Agreement.
(p) Additional Notices. Parent and Purchaser agree to promptly deliver
to Hughes Hubbard & Reed LLP, counsel to Stockholder, at the address set forth
in Section 12(a), copies of any and all notices delivered to any party under
the Merger Agreement or any Other Stockholder Agreement.
(q) Effectiveness. It is condition precedent to the effectiveness of
this Agreement that (i) the Merger Agreement shall have been duly executed and
delivered by the Company, Purchaser and Parent and (ii) each Other Stockholder
Agreement shall have been duly executed and delivered by Purchaser, Parent and
the applicable Other Stockholder.
IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
CENDANT CORPORATION
/s/Eric J. Bock
By: _____________________________
Name: Eric J. Bock
Title: Executive Vice President,
Law and Corporate Secretary
ROBERTSON ACQUISITION CORPORATION
/s/Eric J. Bock
By: _____________________________
Name: Eric J. Bock
Title: Executive Vice President,
Secretary and Director
CONTINENTAL AIRLINES, INC.
/s/Jeffrey J. Misner
By: ______________________________
Name: Jeffrey J. Misner
Title: Executive Vice President
and Chief Financial Officer
The undersigned agrees to
be bound by the following
provisions of the above
Agreement to the same
extent as if it were a
party to the above
Agreement: Sections 9(c),
12(i), 12(n)(ii) and the
other applicable
provisions of Section 12.
Orbitz, Inc.
/s/Jeffrey G. Katz
By: ______________________________
Name: Jeffrey G. Katz
Title: Chief Executive Officer,
President and Chairman
of the Board
SCHEDULE I
Class A Class B Common Total Shares +
Name and Address Common Stock Stock Vested Options Vested Options
- ---------------- ------------ -------------- -------------- --------------
American Airlines, Inc. 6,733,847
Continental Airlines, Inc. 3,549,669
Delta Air Lines, Inc. 5,206,897
Northwest Airlines, Inc. 5,045,549
United Air Lines, Inc. 6,733,847
TOTAL