Exhibit 4.2
EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of October 3, 1999 (the "Agreement"),
is made by and between Sabre Inc., a Delaware corporation ("Sabre"), and
Xxxxx X. Xxxxxxxx (the "Stockholder"). Capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Merger
Agreement (as defined below).
WHEREAS, simultaneously herewith, Sabre, Travelocity Holdings, Inc., a
Delaware corporation and a wholly-owned subsidiary of Sabre ("Travelocity
Holdings"), Xxxxxxxxxxx.xxx, a Delaware corporation and a wholly-owned
subsidiary of Travelocity Holdings ("Xxxxxxxxxxx.xxx"), and Preview Travel,
Inc., a Delaware corporation ("Preview"), have entered into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"),
pursuant to which Preview has agreed, subject to certain terms and
conditions, to merge with and into Xxxxxxxxxxx.xxx (the "Merger");
WHEREAS, the Stockholder is a stockholder of Preview and has voting
power with respect to the number of shares (the "Shares") of common stock of
Preview (the "Preview Common Stock") set forth below the Stockholder's
signature hereto; and
WHEREAS, in order to induce Sabre, Travelocity Holdings and
Xxxxxxxxxxx.xxx to enter into the Merger Agreement and to provide reasonable
assurances that the transactions contemplated by the Merger Agreement will be
consummated, the Stockholder is making certain agreements regarding the
Shares upon the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Voting of Shares; Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder agrees to vote all of its Shares of Preview
Common Stock, Shares of Preview Common Stock of any person controlled by the
Stockholder and any Shares of Preview Common Stock hereafter acquired by the
Stockholder or by any person controlled by the Stockholder (collectively, the
"Stockholder's Shares") as follows:
(i) At any meeting of Preview stockholders called to vote
upon the Merger or the Merger Agreement or at any adjournment thereof or in
any other circumstances upon which a vote, consent or other approval with
respect to the Merger or the Merger Agreement is sought (the "Preview
Stockholders' Meeting"), the Stockholder shall vote (or cause to be voted)
all of the Stockholder's Shares in favor of the Merger, the execution and
delivery by Preview of the Merger Agreement and the approval of the terms
thereof, and each of the other transactions contemplated by the Merger
Agreement.
(ii) At any meeting of Preview stockholders or at any
adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought, the Stockholder shall vote (or cause to
be voted) all of the Stockholder's Shares against (A) the approval of any
Acquisition Proposal or (B) any amendment of Preview's Certificate of
Incorporation or Bylaws or other proposal or transaction involving Preview or
any of its subsidiaries which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent or nullify the Merger, the
Merger Agreement or any of the other transactions contemplated by the Merger
Agreement.
(b) The Stockholder hereby irrevocably grants to, and appoints,
Sabre and Xxxxxx X. Xxxxx, Acting Chief Executive Officer of Sabre, and
Xxxxxxx X. Xxxxxxx, Chief Financial Officer of Sabre, in their respective
capacities as officers of Sabre, and any individual who shall hereafter
succeed to any such office of Sabre, and each of them individually, its proxy
and attorney-in-fact, with full power of substitution, for and in the name,
place and stead of the Stockholder, to vote upon and act with respect to all
of the Stockholder's Shares as set forth in subsections (a)(i) and (a)(ii) of
this Section 1. The Stockholder represents that any proxies heretofore given
in respect of the Stockholder's Shares are not irrevocable, and that any such
proxies are hereby revoked. The Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1(b) is given in connection with
the execution of the Merger Agreement, and that such irrevocable proxy is
given to secure the performance of the duties of the Stockholder under this
Agreement. The Stockholder hereby further affirms that the irrevocable proxy
is coupled with an interest and may under no circumstances be revoked. The
Stockholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 212 of the Delaware General Corporation Law. This proxy shall
survive the bankruptcy, merger, dissolution or liquidation of the
Stockholder. In the event that the stockholders of Preview take action to
approve the Merger and the Merger Agreement by written consent in lieu of a
meeting of stockholders, the Stockholder will execute such consent and
provide a copy to Sabre.
2. Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
any or all of the Stockholder's Shares shall pass, whether by operation of
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law or otherwise, including without limitation, the Stockholder's successors
or assigns. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of
Preview affecting the Preview capital stock, or the acquisition of additional
shares of Preview capital stock or other voting securities of Preview by the
Stockholder, the number of the Stockholder's Shares subject to the terms of
this Agreement shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Preview
capital stock or other voting securities of Preview issued to or acquired by
the Stockholder.
3. Representation and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Sabre that:
(a) The Stockholder is the record and/or beneficial owner of the
number of Shares listed below its signature hereto.
(b) This Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, the
Stockholder, enforceable against the Stockholder in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
application respecting creditors' rights and by general equitable principles.
(c) Neither the execution and delivery of this Agreement nor the
consummation by the Stockholder of the transactions contemplated hereby 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 the Stockholder is a party or bound or to which the
Stockholder's Shares are subject. If the Stockholder is married and the
Stockholder's Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse, enforceable against such
person in accordance with its terms. Consummation by the Stockholder of the
transactions contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to the Stockholder or the
Stockholder's Shares.
(d) The Stockholder's Shares and the certificates representing the
Stockholder's Shares are now, and at all times will be, held by the
Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all liens, security interest, proxies, voting
trusts or voting agreements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder.
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(e) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Stockholder.
(f) The Stockholder understands and acknowledges that Sabre, and
Xxxxxxxxxxx.xxx are entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement. The Stockholder
acknowledges that the irrevocable proxy set forth in Section 1(b) is granted
in consideration for the execution and delivery of the Merger Agreement by
Sabre and Xxxxxxxxxxx.xxx.
(g) The Stockholder represents to Sabre, Travelocity Holdings and
Xxxxxxxxxxx.xxx that it has no plan or intention to sell, exchange or
otherwise transfer ownership (including by derivative transactions such as an
equity swap which would have the economic effect of a transfer of ownership)
to Travelocity Holdings, Xxxxxxxxxxx.xxx, Preview or any related person
(within the meaning of Treas. Reg. Section 1.368-1(e)(3)) with respect to any
of them or any agent of the foregoing, directly or indirectly (including
through partnerships or through third parties in connection with a plan to so
transfer ownership), of any shares of Xxxxxxxxxxx.xxx Common Stock.
4. Covenants. (a) The Stockholder agrees with, and covenants to,
Sabre that it shall not (i) transfer (which term shall include, without
limitation, for the purpose of this Agreement, any sale, gift, pledge or
other disposition), or consent to any transfer of, any or all of the
Stockholder's Shares or any interest therein, except pursuant to the Merger;
(ii) enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all of the Stockholder's Shares or any
interest therein; (iii) grant any proxy, power of attorney or other
authorization in or with respect to such shares, except for this Agreement;
(iv) deposit such shares into a voting trust or enter into a voting agreement
or arrangement with respect to such shares; or (v) take any action prohibited
by Section 6.4 of the Merger Agreement.
(b) The Stockholder shall use its reasonable best efforts to take,
or cause to be taken, all necessary actions, and to do, or cause to be done
all things necessary, proper or advisable under this Agreement to consummate
the transactions contemplated by this Agreement, including, without
limitation, executing and delivering, or causing to be executed and delivered
(including by any record holder of any of the Stockholder's Shares), such
additional or further consents, documents and other instruments, as Sabre may
reasonably request, for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
5. Representations and Warranties of Sabre. Sabre represents and
warrants that this Agreement has been duly authorized, executed and delivered
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by, and constitutes a valid and binding agreement of, Sabre, enforceable
against Sabre in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general application respecting creditors' rights and by
general equitable principles.
6. Miscellaneous.
(a) Benefit and Assignment. This Agreement shall be binding upon
each party hereto and such party's successors and assigns. This Agreement
shall not be assignable by the Stockholder, but may be assigned by Sabre in
whole or in part to any direct or indirect wholly-owned subsidiary of Sabre,
provided that Sabre shall remain liable for any obligations so assigned.
(b) Headings. The section headings herein are for convenience
only and shall not affect the construction hereof.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to principles of conflicts of laws. Any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby or
thereby may be brought in any federal or state court located in the State of
Delaware, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that any
such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within
or without the jurisdiction of any such court. Without limiting foregoing,
each party agrees that service of process on such party as provided in
Section 6(h) shall be deemed effective service of process on such party.
(d) Severability. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
(e) Enforcement of Agreement. The parties agree that Sabre would
be irreparably damaged if for any reason the Stockholder failed, in breach of
its obligations hereunder, to perform any of its obligations under this
Agreement, and that Sabre would not have an adequate remedy at law for money
damages in such event. Accordingly, Sabre shall be entitled to specific
performance and injunctive and other equitable relief to enforce the
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performance of this Agreement by the Stockholder; and, if Sabre should
institute an action or proceeding seeking specific enforcement of the
provisions hereof, the Stockholder hereby waives the claim or defense that
Sabre 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. The Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such
equitable relief. This provision is without prejudice to any other rights
that Sabre may have against the Stockholder for any failure to perform its
respective obligations under this Agreement.
(f) Amendments; Entire Agreement. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This
Agreement contains the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, oral or written, with respect
to such transactions.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same Agreement.
(h) Notices. All notices, requests and other communications to
either party hereunder shall be in writing (including facsimile or similar
writing) and shall be given,
(i) if to Sabre Inc.
0000 Xxxx Xxxxxx Xxxx.
Xxxx Xxxxx, Xxxxx 00000
Attention: Chief Financial Officer
General Counsel
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(ii) if to Stockholder, to its address shown below its signature on
the last page hereof.
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or to such other address or facsimile number as either party may hereafter
specify for the purpose by notice to the other party hereto. Each such
notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section 6(h) and the appropriate facsimile confirmation is
received or (ii) if given by any other means, when delivered at the address
specified in this Section 6(h).
(i) Expenses. Each party hereto shall pay its own expenses
incurred in connection with this Agreement, except as otherwise specifically
provided herein.
(j) Survival. All representations, warranties and covenants
contained herein shall survive the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby.
(k) Termination. This Agreement shall terminate upon the earliest
to occur of (a) the termination of the Merger Agreement in accordance with
its terms or (b) the Effective Time.
(l) Action in Stockholder Capacity Only. No Stockholder who is a
director or officer of Preview makes any agreement in this Agreement in his
or her capacity as such director or officer. The Stockholder signs solely in
its capacity as a record holder and beneficial owner of Shares. The
provisions of this Agreement shall not apply to actions taken or omitted to
be taken by any such person in his or her capacity as a director or officer
of Preview.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the date first above written.
SABRE INC.
By: /s/Xxxxxxx X. Xxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Chief Financial Officer
STOCKHOLDER:
/s/Xxxxx X. Xxxxxxxx
________________________________
XXXXX X. XXXXXXXX
Address: 0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Number of Shares
Beneficially Owned: 781,660
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