EXHIBIT 2.3
The following agreement is a form stockholders 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 stockholders
agreements.
SHAREHOLDER SECURITIES HELD
Xxxx Xxxxx 1,056,325 Company Shares
Xxxxxxx Xxxxx Annuity Trust (1999) 1,043,675 options to purchase Company Shares
Xxxx Xxxxx Annuity Trust (1999)
Xxxx Xxxxx & Xxxxxxx Xxxxx Trust 1999
Xxxxxxx X.X. Xxxxxxx 818,250 Company Shares
The Xxxxxxx Family Revocable Trust Dated 27,500 options to purchase Company Shares
June 17, 1988
The Xxxxxxx Family Irrevocable Trust Dated
October 1999
The agreements are identical in all material respects except Xx. Xxxx
Xxxxx'x agreement contains an additional provision in Section 4(e) regarding
non-competition and non-solicitation.
FORM OF STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "AGREEMENT") dated as of August 28, 2000
by and among [STOCKHOLDER] (collectively, "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 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 Xxxx-Xxxxx-Xxxxxx 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").
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(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 his 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.
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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.
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(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 or the Amended
and Restated Shareholders Agreement, dated September 14, 1999, as
amended (the "SHAREHOLDERS 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 and the
Shareholders 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).
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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 Xxxxx
X. Xxxxxx, Xxxxx Xxxxxxxx and Xxxxxxx X. Xxxxxxx, 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).
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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 _____________, 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.
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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:
0000 Xxxx Xxxxxx Xxxx., MD 3204
Xxxx Xxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
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.
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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.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as
of the date first written above.
[STOCKHOLDER]
By: ____________________________
Name:
Title:
SABRE HOLDINGS CORPORATION
By: ____________________________
Name:
Title:
SABRE INC.
By: ____________________________
Name:
Title:
Schedule 1
SHAREHOLDER SECURITIES HELD
