EXHIBIT 5
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
Xxxx Xxxxx Common Stock of the Company: 1,056,325
Xxxxxxx Xxxxx Annuity Trust (1999) Options to purchase 1,043,675 shares
Xxxx Xxxxx Annuity Trust (1999) of Common Stock
Xxxx Xxxxx & Xxxxxxx Xxxxx Trust (1999)
Xxxxxxx X.X. Xxxxxxx Common Stock: 818,250 shares
The Xxxxxxx Family Revocable Trust Dated Options to purchase 12,500 shares of
June 17, 1988 Common Stock
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 STOCKHOLDER AGREEMENT
STOCKHOLDER 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").
(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.
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 (i) a lien securing payment of a promissory note in favor of
the Company and (ii) 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) 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) 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 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).
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.
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.
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:
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Name:
Title:
SABRE INC.
By:
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Name:
Title:
SABRE HOLDINGS CORPORATION
By:
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Name:
Title:
Schedule 1
SHAREHOLDER SECURITIES HELD
