EXHIBIT 4
The following agreement is a form stockholder agreement signed by the
parties listed below. The names and securities held by the stockholders appear
below as described in Schedule 1 to each of the stockholder agreements.
SHAREHOLDER SECURITIES HELD
U.S. Venture Partners V, L.P. Common Stock: 1,734,277 shares
USVP V International, L.P.
2180 Associates Fund V, L.P.
USVP V Entrepreneur Partners, L.P.
Brentwood Associates VII, L.P. Common Stock: 2,543,293 shares
Brentwood Affiliates Fund, L.P.
Ambassadors International, Inc. Common Stock: 494,132 shares
American Express Travel Related Common Stock: 3,371,500 shares
Services Company, Inc. Warrants: 1,460,046 shares
Series D3 Preferred Stock: 1 share
The agreements are identical in all material respects except the following
provision appears as Section 4(d) in the agreement with American Express Travel
Related Services Company, Inc.
"(d) Holder agrees not to exercise any right or option it may hold, if
any, to abstain from voting in favor of any Sale of the Company (as
defined in the Standstill and Bring Along Agreement, dated September 14,
1999 the "STANDSTILL AGREEMENT") to an American Express Non-Approved Buyer
(as defined in the Standstill Agreement), under the Standstill Agreement
or any other agreement."
FORM OF STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "AGREEMENT") dated as of August 28, 2000 by
and among [STOCKHOLDER], a _____________ corporation, ("HOLDER"), Sabre Holdings
Corporation, a Delaware corporation ("PARENT"), and Sabre Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("MERGER SUB"). Parent,
Merger Sub and GetThere Inc., a Delaware corporation (the "COMPANY"), propose to
enter into an Agreement and plan of merger (the "MERGER AGREEMENT") on the date
of this Agreement providing for the making of a tender offer by Merger Sub (the
"OFFER") for all of the shares of Common Stock, par value $0.0001 per share, of
the Company (the "COMPANY COMMON STOCK") and all of the shares of Preferred
Stock, par value $0.0001 per share, of the Company (the "COMPANY PREFERRED
STOCK") (the Company Common Stock and Company Preferred Stock being referred to
herein as "COMPANY SHARES"), at a purchase price of $17.75 per share, and a
subsequent merger (the "MERGER") between the Company and Merger Sub. Holder owns
the number of Company Shares (the "OPTIONED SECURITIES"), and the options to
purchase Company Shares (the "OPTIONS") or has the right to vote the number of
Company Shares or other securities (the "VOTING SECURITIES"), listed on
Schedule 1.
Accordingly, as an inducement and condition for Parent and Merger
Sub to enter into, and in consideration of their entering into, the Merger
Agreement, and in consideration of the mutual covenants and agreements set
forth herein and in consideration of such other valuable consideration the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. THE OPTION. Subject to the terms of this Agreement, Holder hereby
grants to Merger Sub an irrevocable option (the "OPTION") to purchase all, and
not less than all, of the Optioned Securities of Holder at the price of $17.75
per share (or such higher price as may be paid pursuant to the Offer), payable
in cash, without interest. The obligation to pay the exercise price for the
Option shall be a joint and several obligation of Parent and Merger Sub.
2. EXERCISE OF THE OPTION; TERM.
(a) On the terms and subject to the conditions of this Agreement,
Merger Sub may exercise the Option at any time after the date on which all
waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended (the "HSR ACT"), applicable to the exercise of the Option have
expired or been terminated by written notice to Holder specifying a date and
time for the closing not later than thirty (30) business days from the date of
such notice (which date and time shall be at least two business days after the
delivery of such notice) and after the Offer has expired or been terminated;
provided, however, that the Option may not be exercised after it has expired in
accordance with the terms hereof.
(b) The Option shall expire on the earliest of:
(1) the purchase of the Optioned Securities by Merger Sub
pursuant to the Offer;
(2) the Effective Time (as defined in the Merger Agreement);
(3) the termination of the Merger Agreement in accordance with
its terms;
(4) two business days after termination or expiration of the
Offer
(such earliest date being referred to in this Agreement as the "EXPIRATION
DATE").
(c) If the Company receives an Acquisition Proposal (as defined in
the Merger Agreement) which the Company in good faith, after compliance with
Section 6.06 of the Merger Agreement, believes is a Superior Proposal (as
defined in the Merger Agreement) and gives written notice to Parent of such
Superior Proposal in compliance with Section 6.06 of the Merger Agreement,
Parent and Merger Sub will not exercise the Option (if it is then exercisable)
for a period commencing on the date of such written notice and ending on the
first to occur of: (1) written notice to Parent and Merger Sub from the Company
that such Superior Proposal is not being pursued, which notice shall be provided
by the Company to Parent and Merger Sub in writing promptly upon any such
determination and (2) the date on which the Company receives a written and
binding offer from the Parent that the Board of Directors of Company determines
is at least as favorable, from a financial point of view, to the stockholders of
the Company as the Superior Proposal (such period is referred to herein as the
"REVIEW PERIOD").
(d) Merger Sub and Parent agree that if Merger Sub exercises the
Option and the Merger Agreement remains in full force and effect (i) the Company
Shares purchased by Merger Sub pursuant to the Option shall be treated for
purposes of the Merger Agreement and the Offer as if such Company Shares were
purchased by Merger Sub in the Offer and (ii) Parent and Merger Sub will ensure
that the transactions contemplated by the Merger Agreement (including the Offer
and the Merger) are consummated. Merger Sub and Parent further agree that if
Merger Sub exercises the Option and the Merger Agreement is not in full force
and effect (i) Parent and Merger Sub will cause the Merger Agreement to again
become in full force and effect (or to cause a merger agreement containing the
same economic terms to become in force and effect) and (ii) Parent and Merger
Sub will ensure that the transactions contemplated by the Merger Agreement (or
any replacement merger agreement), including the Offer and the Merger, are fully
consummated.
(e) Notwithstanding anything contained herein to the contrary,
Merger Sub may not exercise the Option in the event that Merger Sub has not
purchased that number of Company Shares (when aggregated with the number of
Company Shares Merger Sub has the Option to purchase under this Agreement and
similar shareholder agreements entered into with other shareholders of the
Company) sufficient to satisfy the Minimum Tender Condition.
3. CLOSING. At the closing:
(a) against delivery of the Optioned Securities, free and clear of
all liens, claims, charges and encumbrances of any kind or nature
whatsoever, Parent shall cause
Merger Sub to make payment to Holder of the aggregate price for
Holder's Optioned Securities by wire transfer to Holder of immediately
available funds; and
(b) Holder shall deliver to Merger Sub a duly executed certificate
or certificates representing the Optioned Securities purchased from
Holder, together with transfer powers endorsed in blank relating to
such certificates and, if requested by Merger Sub, an irrevocable proxy
duly executed by Holder, authorizing such persons as Merger Sub shall
designate to act for Holder as its lawful agents, attorneys and
proxies, with full power of substitution, to vote in such manner as
each such agent, attorney and proxy or his substitute shall in his sole
discretion deem proper, and otherwise act with respect to the Optioned
Securities at any meeting (whether annual or special and whether or not
an adjourned meeting) of the Company's stockholders or otherwise, and
revoking any prior proxies granted by Holder with respect to Holder's
Optioned Securities.
Notwithstanding any provision of this Agreement to the contrary, if
Holder validly tenders any Optioned Securities pursuant to the Offer and does
not withdraw such Company Shares prior to the expiration of the Offer then its
obligation to sell such tendered Optioned Securities pursuant to this Agreement
shall be satisfied, solely with respect to the Company Shares so tendered, upon
the purchase of such Company Shares by Merger Sub pursuant to the Offer.
4. COVENANTS OF HOLDER.
(a) During the period from the date of this Agreement until the
Expiration Date, except in accordance with the provisions of this
Agreement, Holder agrees not to, and will use best efforts to cause any
investment banker, attorney or other adviser or representative of
Holder not to:
(i) sell, sell short, transfer, pledge, hypothecate,
assign or otherwise dispose of, or enter into any contract, option,
hedging arrangement or other arrangement or understanding with
respect to the sale, transfer, pledge, hypothecation, assignment or
other disposition of, any Optioned Securities or Voting Securities;
(ii) deposit any Optioned Securities or Voting Securities
into a voting trust, or grant any proxies or enter into a voting
agreement with respect to any Optioned Securities or Voting
Securities; or
(iii) except to the extent such actions are permitted to
be taken by the Company by Section 6.06 of the Merger Agreement,
initiate, solicit or knowingly encourage, directly or indirectly,
any inquiries or the making or implementation of any proposal that
constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal (as defined in the Merger Agreement) or enter
into discussions or negotiate with any person or entity in
furtherance of such
inquiries or to obtain an Acquisition Proposal, or agree to or
endorse any Acquisition Proposal.
(iv) take any action which would make any representation
or warranty of Holder herein untrue or incorrect or prevent, burden
or materially delay the consummation of the transactions
contemplated by this Agreement.
(b) Any additional Company Shares obtained upon exercise or
conversion of warrants, options or other securities or rights
exercisable for, exchangeable for or convertible into Company Shares
(collectively, "EQUITY SECURITIES") acquired by Holder will become
subject to this Agreement and shall, for all purposes of this
Agreement, be considered Optioned Securities or Voting Securities, as
the case may be.
(c) Holder agrees not to engage in any action or knowingly omit to
take any action, including the waiver or amendment of any right, option
or agreement, which would have the effect of preventing or disabling
Holder from delivering its Optioned Securities to Merger Sub or
otherwise performing its obligations under this Agreement. To the
extent that any Optioned Securities (other than Company Shares) may not
be assigned by Holder to Merger Sub without exercising, exchanging or
converting such Optioned Securities for or into Company Shares, Holder
agrees to exercise, exchange or convert such Optioned Securities for or
into Company Shares prior to the closing of the purchase of such
Optioned Securities upon exercise of the Option.
(d) Notwithstanding anything contained herein to the contrary, this
Agreement shall apply to Holder solely in its capacity as a shareholder
of the Company. Nothing contained herein shall be deemed to impose any
obligation on any person, to act or refrain from acting in any way, in
his or her capacity as a director of the Company.
5. REPRESENTATIONS AND WARRANTIES OF HOLDER. Holder represents and
warrants to Parent and Merger Sub as follows:
(a) (i) Holder is the record or beneficial owner of the Optioned
Securities and Options, or has the right to vote the Voting Securities,
listed on Schedule 1, (ii) such Optioned Securities and Options or
Voting Securities are the only Equity Securities owned of record or
beneficially by Holder or in which Holder has any interest or which
Holder has the right to vote, as the case may be, and (iii) Holder does
not have any option or other right to acquire any other Equity
Securities;
(b) Holder has the right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; the execution,
delivery and performance of this Agreement by Holder will not require
the consent of any other person and will not constitute a violation of,
conflict with or result in a default under (i) any contract,
understanding or arrangement to which Holder is a party or by which
Holder is bound, (ii) any judgment, decree or order applicable to
Holder, or (iii) any law, rule or regulation of any governmental body
applicable to Holder; and this Agreement constitutes
a valid and binding agreement on the part of Holder, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity;
(c) the Optioned Securities owned by Holder are now, and at all
times during the term of this Agreement will be, held by Holder free
and clear of all adverse claims, liens, encumbrances and security
interests (except for any Federal or state securities laws restrictions
on transfer), and none of the Optioned Securities or Voting Securities
are subject to any voting trust or other agreement or arrangement
(except as created by this Agreement, the Amended and Restated
Shareholders Agreement, dated September 14, 1999, as amended (the
"SHAREHOLDERS AGREEMENT") and the Standstill Agreement) with respect to
the voting or disposition of the Optioned Securities or Voting
Securities; and there are no outstanding options, warrants or rights to
purchase or acquire, or agreements (except for this Agreement, the
Shareholders Agreement and the Standstill Agreement) relating to, such
Optioned Securities or Voting Securities; and
(d) upon purchase of the Optioned Securities owned by Holder, Merger
Sub will obtain good and marketable title to such Optioned Securities,
free and clear of all adverse claims, liens, encumbrances and security
interests (except any created by Merger Sub or any Federal or state
securities laws).
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. Each of
Parent and Merger Sub hereby represents and warrants to Holder that: it is a
corporation duly formed under the law of the state of its incorporation; it has
all requisite corporate power and authority to enter into and perform all its
obligations under this Agreement; the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on its part; this Agreement has
been duly executed and delivered by it; and this Agreement constitutes a valid
and binding agreement on its part, enforceable in accordance with its terms,
subject to applicable bankruptcy insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity.
7. VOTING OF EQUITY SECURITIES. Holder hereby agrees that, from the
date hereof until the Expiration Date, at any meeting of the stockholders of the
Company, however called, including any adjourned or postponed meeting, and in
any action by written consent of the stockholders of the Company or in any other
circumstances upon which a vote, consent or other approval is sought, it shall
(a) vote all Voting Securities of Holder in favor of the Merger and in favor of
any other action or agreement which would, in the reasonable opinion of Parent
and Merger Sub, facilitate the transactions contemplated in the Merger
Agreement; (b) not vote any Voting Securities in favor of any action or
agreement which would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement; and (c) vote all Voting Securities of Holder against
any action or agreement which would impede, interfere with or attempt to
discourage the Offer or the Merger, including, but not limited to: (i) any
Acquisition Proposal (other than the Offer and the Merger) involving the Company
or any of its subsidiaries; (ii) any change in the management or board of
directors of the Company, except as otherwise agreed to in writing by Merger
Sub; (iii)
any material change in the present capitalization or dividend policy of the
Company; or (iv) any other material change in the Company's corporate structure
or business. Any such vote shall be cast or consent shall be given for purposes
of this Section 7 in accordance with such procedures relating thereto as shall
ensure that it is duly counted for purposes of determining that a quorum is
present and for purposes of recording in accordance herewith the results of such
vote or consent. Holder hereby irrevocably (except as set forth below) appoints
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the attorneys, agents
and proxies, with full power of substitution, for the undersigned and in the
name, place and stead of Holder to vote or act by execution of written consents,
with respect to all Voting Securities of the Company which Holder is or may be
entitled to vote at any meeting of the Company with a record date after the date
hereof, whether annual or special and whether or not an adjourned meeting, or in
respect of which Holder is or may be entitled to act by written consent, in
accordance with the first sentence of this Section 7. This proxy is coupled with
an interest and shall be irrevocable (except as set forth below) and binding on
any successor in interest of Holder. This proxy shall operate to revoke any
prior proxy as to Voting Securities heretofore granted by Holder. Such proxy
shall terminate upon the expiration of the Option pursuant hereto. The
obligations of this Section 7 shall not apply to Holder during any Review Period
and Holder may revoke this Proxy during any such Review Period as long as Holder
reinstates such proxy promptly upon expiration of such Review Period (unless the
Company accepts a Superior Proposal, in which case the proxy shall terminate).
8. ADJUSTMENTS. In the event of any increase or decrease or other
change in the Optioned Securities by reason of stock dividends, split-up,
recapitalizations, combinations, exchanges of Company Shares or the like, the
number of Optioned Securities and Voting Securities subject to this Agreement
shall be adjusted appropriately.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of Delaware without regard to its rules of
conflict of laws.
10. FURTHER ASSURANCES. Each party hereto shall perform such further
acts and execute such further documents or filings as may reasonably be required
to carry out the provisions of this Agreement, including, without limitation,
using commercially reasonable efforts to obtain all necessary consents,
approvals or waivers.
11. LEGEND. As soon as practicable after the execution of this
Agreement, the following legend shall be placed on the certificates representing
the Optioned Securities:
"The Securities represented by this certificate are subject to
certain transfer and other restrictions contained in a Stockholders
Agreement, dated as of August 28, 2000, among [STOCKHOLDER], Sabre
Holdings Corporation and Sabre Inc."
12. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned or delegated, in whole or in part
(except by operation of law), by any of the parties hereto without the prior
written consent of each other party hereto, except that
Parent and Merger Sub may assign or delegate in their sole discretion any or all
of their rights (including, without limitation, the Option), interests or
obligations under this Agreement to any, direct or indirect, wholly-owned
subsidiary of Parent, but no such assignment shall relieve Parent of any of its
obligations hereunder. Subject to the preceding sentence, this Agreement shall
be binding upon, inure to the benefit of and be enforceable by, the parties
hereto and their respective successors and assigns.
13. REMEDIES. Holder acknowledges and agrees that if it fails to
perform any of its obligations under this Agreement immediate and irreparable
harm or injury would be caused to Parent for which money damages would not be an
adequate remedy. In such event, Holder agrees that Parent shall have the right,
in addition to any other rights it may have, to specific performance of this
Agreement. Accordingly, if Parent should institute an action or proceeding
seeking specific enforcement of the provisions hereof, Holder hereby waives the
claim or defense that Parent has an adequate remedy at law and hereby agrees not
to assert in any such action or proceeding the claim or defense that such a
remedy at law exists.
14. FEES AND EXPENSES. Except as otherwise expressly provided herein or
in the Merger Agreement, whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
15. PUBLICITY. Holder shall not issue any press release or otherwise
make any public statements with respect to this Agreement or the Merger
Agreement or the other transactions contemplated hereby or thereby without the
consent of Parent and Merger Sub, except as may be required by law or applicable
stock exchange.
16. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein) and shall be
deemed duly given if delivered in person, by confirmed facsimile transmission or
by overnight courier service, addressed as follows:
To Parent or Merger Sub:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., MD 3204
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Holder, at the address set forth on Schedule 1 hereto or to such other
address as any party may have furnished to the other parties in writing in
accordance herewith.
17. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any 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 hereby 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 contemplated hereby are fulfilled to the extent possible.
18. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
19. AMENDMENTS. This Agreement may not be changed, amended or modified
orally, but may be changed only by an agreement in writing signed by the party
against whom any waiver, change, amendment, modification or discharge may be
sought.
20. BINDING EFFECT; BENEFITS. This Agreement shall be binding upon the
parties hereto and their respective heirs, legal representatives, successors and
permitted assigns. Nothing in this Agreement, expressed or implied, is intended
to or shall confer on any person other than the parties hereto and their
respective heirs, legal representatives and successors and permitted assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
21. CAPITALIZED TERMS. Capitalized terms not otherwise defined in this
Agreement shall have the meanings set forth in the Merger Agreement.
22. HEADINGS. The section headings herein are for convenience only and
shall not affect the construction of this Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.
[STOCKHOLDER]
By:
By:
-----------------------------------
Name:
Title:
SABRE HOLDINGS CORPORATION
By:
------------------------------------
Name:
Title:
SABRE INC.
By:
------------------------------------
Name:
Title:
Schedule 1
SHAREHOLDER SECURITIES HELD
[STOCKHOLDER] [SECURITIES HELD]
[ADDRESS]
