Exhibit 2.4
STOCKHOLDER AGREEMENT
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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 Delta Air Lines, Inc.
("Stockholder").
WHEREAS, Stockholder is, as of the date hereof, the record
and beneficial owner of the number of shares of Series B-DL 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., Continental Airlines, 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(co), 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:
Delta Air Lines, Inc.
1030 Delta Boulevard
Atlanta, GA 30320
Telephone: (404) 404-715-6644
Facsimile: (404) 715-4098
Attention: EVP & CFO
with a copy to:
Delta Air Lines, Inc.
Law Department (Dept. No. 971)
1030 Delta Boulevard
Atlanta, GA 30320
Telephone: (404) 715-2611
Facsimile: (404) 715-2233
Attention: SVP-General Counsel
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
DELTA AIR LINES, INC.
/s/Michael J. Palumbo
By: ______________________________
Name: Michael J. Palumbo
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 Total Shares +
-------- ------- --------------
Name and Address Common Stock Common 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