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EXHIBIT 10.1
CONFORMED COPY
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STOCKHOLDERS' AGREEMENT
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Among
GALILEO INTERNATIONAL, INC.
certain of its
STOCKHOLDERS
and certain
RELATED PARTIES OF SUCH STOCKHOLDERS
Dated as of July 30, 1997
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Other Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
BOARD REPRESENTATION; COMMITTEES
2.01. Size of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.02. Nomination of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.03. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.04. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.05. Classification of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.06. Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.07. Compensation of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.08. Air Vendor Consultation Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE III
RESTRICTIONS ON TRANSFER
3.01. General Restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.02. Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.03. Restrictions on Certain Transfers of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.04. Right of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.05. Affiliate Transferees to Execute Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.06. Sale to a Third Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.07. Restrictions on Certain Transfers of Shares of Preferred Stock . . . . . . . . . . . . . . . . . . . . . . 16
3.08. Improper Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.09. Limitation on Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Section Page
ARTICLE IV
CERTAIN AGREEMENTS
4.01. Certain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.02. No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.03. Issuances of Shares of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE V
MISCELLANEOUS
5.01. Further Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.02. Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.03. Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.04. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.06. Benefit; Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.07. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.08. Changes to Non-Competition Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.09. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.11. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.12. Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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STOCKHOLDERS' AGREEMENT, dated as of July 30, 1997, among
GALILEO INTERNATIONAL, INC., a Delaware corporation (the "Company"), each of
the stockholders of the Company listed on Schedule A hereto and, with respect
to Articles IV and V only, each of the Persons listed on Schedule B hereto.
WHEREAS, the Original Owners (as defined below) immediately
prior to the consummation of the IPO (as defined below) collectively own 100%
of the shares of common stock, par value $0.01 per share, of the Company (the
"Common Stock");
WHEREAS, upon the consummation of the IPO, the Original Owners
will collectively own shares of Common Stock representing at least 66.6% of the
outstanding shares of Common Stock;
WHEREAS, certain Original Owners own shares of Special Voting
Preferred Stock, par value $0.01 per share, of the Company, in Series A through
G (the "Preferred Stock"), which series of Preferred Stock are entitled to
elect a certain number of Original Owner Directors on the terms and conditions
set forth in the Restated Certificate of Incorporation (as such terms are
defined below);
WHEREAS, the parties hereto desire to set forth in writing
their understanding and agreement for the voting of shares of Common Stock held
by the Original Owners on certain matters, and for certain other courses of
conduct; and
WHEREAS, it is a condition precedent to the consummation of
the IPO that the parties enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any specified Person, any
other Person, other than the Company or any subsidiary of the Company, that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such specified Person. Without
limiting the foregoing, the parties acknowledge that the respective Persons
listed on Schedule B hereto are Affiliates of the respective Persons they are
identified as having a controlling interest in on Schedule A hereto.
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"Affiliated Person" means, with respect to any specified
Person, such Person's Affiliates, such Person's officers, directors and
employees, and the officers, directors and employees of such Affiliates.
"Agreement" or "this Agreement" means this Stockholders'
Agreement, dated as of July 30, 1997, among the Company and each of the other
parties signatory hereto, and all amendments hereto made in accordance with the
provisions of Section 5.04.
"beneficial owner" or "beneficially own" has the meaning given
such term in Rule 13d-3 under the Exchange Act.
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission, and
any successor commission or agency having similar powers.
"control" (including the terms "controlled by" and "under
common control with"), with respect to the relationship between or among two or
more Persons, means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including, without limitation,
the ownership, directly or indirectly, of securities having the power to elect
a majority of the board of directors or similar body governing the affairs of
such Person.
"Director" means a director of the Company
"Distributor" means a Person which has entered into, or enters
into, a Distributor Agreement with the Company.
"Distributor Agreement" means any distributor agreement
entered into between the Company and any Person.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Interest" means (i) with respect to an Original Owner that
owned, prior to the IPO, more than 2% of the Partnership's outstanding general
partnership interests, 1% or more of the outstanding shares of Common Stock,
and (ii) with respect to an Original Owner that owned, prior to the IPO, 2% or
less of the Partnership's outstanding general partnership interests, the number
of shares of Common Stock owned by such Original Owner on the closing of the
IPO, provided that such amount is at least 0.005% of the Common Stock
outstanding immediately following the IPO; provided, however, that if, at any
time after the IPO, the Company issues additional shares of Common Stock and,
as a result of such
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issuance, the number of shares of Common Stock owned by an Original Owner falls
below the percentage interest required by clause (i) or clause (ii) above, such
issuance shall be excluded from the determination of the Interest of such
Original Owner.
"IPO" means the underwritten initial public offering of shares
of Common Stock of the Company pursuant to an effective Registration Statement
on Form S-1 (File No. 333-27495) under the Securities Act.
"Merger" means the transaction or transactions whereby Galileo
International Partnership, a Delaware partnership, has merged with and into a
wholly-owned limited liability company subsidiary of the Company.
"Nonaffiliated Person" means, with respect to any specified
Person, any Person other than an Affiliated Person.
"Non-Competition Agreement" means a non-competition agreement
with the Company in the form attached hereto as Exhibit A, as such agreement
may be amended from time to time in accordance with its terms and pursuant to
Section 5.08 of this Agreement.
"Original Owners" means (i) the stockholders listed on
Schedule A hereto, (ii) any Affiliate of an Original Owner that is deemed to be
an Original Owner pursuant to Section 3.05 and (iii) any Permitted Preferred
Stock Transferee that is deemed to be an Original Owner pursuant to Section
3.06.
"Original Owner Director" means any Director elected pursuant
to the Restated Certificate of Incorporation by an Original Owner that owns one
or more shares of Preferred Stock.
"Parent Entities" means the Persons listed on Schedule B
hereto.
"Person" means any individual, partnership, firm, corporation,
association, trust, estate, unincorporated organization or other entity, as
well as any syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Exchange Act.
"Pro Rata Number" means, with respect to a First Refusal
Original Owner or Prospective Buyer, as the case may be, a number of Shares
equal to the product of (a) the number of the Offered Shares and (b) a fraction
the numerator of which shall be the total number of the Shares owned
(immediately prior to the Sale of the Offered Shares) by such First Refusal
Original Owner or Prospective Buyer, as the case may be, and the denominator of
which shall be the total number of the Shares owned (immediately prior to the
Sale of the Offered Shares) by the First Refusal Original Owners and
Prospective Buyer.
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"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of July 30, 1997 (as the same may be amended from time to
time), among the Company and each of the stockholders of the Company listed on
Schedule A hereto.
"Restated Certificate of Incorporation" means the Restated
Certificate of Incorporation of the Company, as amended from time to time.
"Restricted Shares" means all Shares other than (a) Shares
that have been registered under a registration statement pursuant to the
Securities Act, (b) Shares with respect to which a Sale has been made in
reliance on and in accordance with Rule 144 or (c) Shares with respect to which
the holder thereof shall have delivered to the Company either (i) an opinion,
in form and substance satisfactory to the Company, of counsel, who shall be
satisfactory to the Company, or (ii) a "no action" letter from the staff of the
Commission, to the effect that subsequent transfers of such Shares may be
effected without registration under the Securities Act.
"Sale" means any sale, assignment, transfer, distribution or
other disposition of Shares or of shares of Preferred Stock, as applicable, or
of a participation therein, whether voluntarily or by operation of law.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Share" means any share of Common Stock (i) beneficially owned
by an Original Owner immediately after the consummation of the IPO (excluding
any shares of Common Stock acquired in the IPO), (ii) acquired by an Original
Owner from any other Original Owner in accordance with Section 3.04, (iii)
acquired by a Prospective Affiliate Transferee in accordance with Section 3.05;
(iv) acquired by a Permitted Preferred Stock Transferee in accordance with the
first sentence of Section 3.06, or as contemplated by clause (y) of Section
3.07, or held by a Permitted Preferred Stock Transferee at the time of the
transfer to such Person of Shares in accordance with clause (x) of Section
3.07, provided that, to the extent the shares of Common Stock held by such
Permitted Preferred Stock Transferee at the time of such transfer, when added
to the Shares transferred to such Person in accordance with clause (x) of
Section 3.07, represent more than 5% of the then outstanding shares of Common
Stock, then only such number of shares of Common Stock held by such Person at
the time of such transfer which, when added to the Shares transferred to such
Person in accordance with clause (x) of Section 3.07, represent 5% of the then
outstanding shares of Common Stock shall constitute "Shares"; (v) acquired by
an Original Owner that owns one or more shares of Preferred Stock for the
purpose of preserving its ability to elect one or more Original Owner Directors
pursuant to the terms of Section 4.3(d) of the Restated Certificate of
Incorporation; (vi) issued by way of a stock split of the Common Stock; or
(vii) issued as (or issuable upon the conversion or exercise of any warrant,
rights, option or other convertible security which is issued as) a dividend or
other
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distribution with respect to, or in exchange for, or in replacement of, the
Common Stock referred to in clauses (i) through (vi) above.
"Third Party" means, with respect to any Original Owner, any
non-Affiliated Person (other than the Company or another Original Owner or any
Affiliate thereof), and "Third Parties" shall have a correlative meaning.
"Voting Securities" means, at any time, shares of any class
of capital stock of the Company that are then entitled to vote generally in the
election of Directors (other than shares of Preferred Stock); provided that for
purposes of this definition any securities which at such time are convertible
or exchangeable into or exercisable for shares of Common Stock shall be deemed
to have been so converted, exchanged or exercised.
SECTION 1.02. Other Defined Terms. The following terms shall
have the meanings defined for such terms in the sections set forth below:
Term Section
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Acquiring Owner 4.01(b)
Aer Lingus Schedule B
Air Canada Schedule B
Air Vendor Consultation Group 2.07
Alitalia Schedule B
Arbitration Request 5.07
Arbitrator 5.07
Association 5.07
Austrian Airlines Schedule B
Award 5.07
British Airways Schedule B
Code 2.06(c)
Commencement Date 5.07(i)
Common Stock Recitals
Company Preamble
Coporga Schedule A
Covia Schedule A
Dispute Notice 5.07
DSI Schedule A
elector 5.07
First Refusal Original Owners 3.04
First Refusal Price 3.04
Independent Director 2.02(iii)
Investment Bank 4.01(b)
KLM Schedule B
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Management Directors 2.02(ii)
Notice of Exercise 3.04(b)
Notice of Intention 3.04(a)
Offer 4.01(b)
Offered Shares 3.04(a)
Olympic Schedule B
Olynet Schedule A
Option Period 3.04(b)
Partnership 5.11
Permitted Preferred Stock Transferee 3.07
Petitioner 5.07
Proposal 4.01(b)
Prospective Affiliate Transferee 3.05
Prospective Buyer 3.04(a)
Racom Schedule A
Replacement Original Owner Director 2.03(a)
Resnet Schedule A
Respondent 5.07
Response 5.07(ii)
Retford Schedule A
Roscor Schedule A
Selling Original Owner 3.04
Significant Transaction 2.01
Statement 5.07
SAirGroup Schedule B
TAP Schedule B
Third Party Transferee 3.06
TIS Schedule A
Travidata Schedule A
United Schedule B
USAM Schedule A
USAW Schedule B
ARTICLE II
BOARD REPRESENTATION; COMMITTEES
SECTION 2.01. Size of the Board. The Company shall take such
actions as are necessary, and each of the Original Owners shall vote its Shares
and shall take such other actions as are necessary, to cause the Board at all
times from and after the consummation of the IPO until the tenth anniversary of
the date hereof to consist of 13 members unless the
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Company and the Original Owners then party to this Agreement who hold shares of
one or more series of Preferred Stock entitled to elect directors to the Board
pursuant to the terms of the Restated Certificate of Incorporation unanimously
agree otherwise; provided, however, that in connection with a Significant
Transaction, the size of the Board may be increased by majority vote of the
whole Board to the extent such increase in the size of the Board is
proportional (rounded to the nearest whole number) to the increase in the
number of shares of Common Stock outstanding as a result of the issuance of
shares of Common Stock in connection with such Significant Transaction. For
purposes of this Agreement, a "Significant Transaction" means an acquisition,
merger, or issuance of securities to a single Person or group of Persons (other
than an underwriter or group of underwriters) in which shares of Common Stock
constituting at least a percentage of the then outstanding shares of Common
Stock (on a fully diluted basis) equal to the number expressed as a percentage
obtained by dividing one by the then number of Board seats are issued; provided
that, in no event will any transaction involving the issuance of shares
constituting less than 5% of the then outstanding shares of Common Stock (on a
fully diluted basis) constitute a Significant Transaction.
SECTION 2.02. Nomination of Directors. The Company shall
take such actions as are necessary, and each of the Original Owners shall vote
its Shares and shall take, and shall cause any Director elected by it pursuant
to the terms of any series of Preferred Stock held by it to take, such other
actions as are necessary, to cause the Board, at all times from and after the
consummation of the IPO until the tenth anniversary of the date hereof, to
include the following Directors elected or nominated as follows:
(i) Original Owner Directors. Each Original Owner owning
Shares and shares of one or more series of Preferred Stock shall be
entitled to elect such number of individuals to serve as Original
Owner Directors as such series of Preferred Stock shall be entitled to
elect pursuant to the Restated Certificate of Incorporation.
(ii) Management Directors. The Chief Executive Officer,
the Chief Operating Officer and the Chief Financial Officer of the
Company shall be nominated by the Board to be elected as Directors
(the "Management Directors"); provided, however, that until the
Company shall have a Chief Operating Officer, the General Counsel of
the Company shall be nominated to be elected as a Management Director.
The initial Chief Executive Officer shall serve as the Chairman of the
Board. Thereafter, the Board will determine which Director will be
the Chairman of the Board.
(iii) Independent Directors. Three individuals shall be
nominated by the Board to be elected as Directors, each of whom shall
be an "independent director", as such term is used in Rule 303 of the
Rules of the New York Stock Exchange as in existence on the date
hereof or as amended from time to time thereafter (an " Independent
Director").
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(iv) Replacement Original Owner Directors. In the event
that the share of any series of Preferred Stock is redeemed by the
Company, the vacancy resulting from such event shall be filled by the
Board with an Independent Director, as more fully set forth in Section
2.03.
SECTION 2.03. Vacancies. (a) In the event an Original
Owner that owns shares of one or more series of Preferred Stock ceases to own
Shares constituting the applicable percentage of the outstanding Common Stock
entitling the series of Preferred Stock held by such Original Owner to elect
any one or more Original Owner Directors, or the share of such series of
Preferred Stock is redeemed for any other reason pursuant to Section 4.3(f) of
the Restated Certificate of Incorporation, then the Original Owner Director who
was previously elected by the holder of such series of Preferred Stock shall be
deemed to have resigned effective immediately upon the occurrence of such
event, and such Original Owner and the Company shall take all actions necessary
to give effect to such resignation; provided, however, that if an Original
Owner's share or shares of Preferred Stock has or have been redeemed pursuant
to Section 4.3(f)(3) of the Restated Certificate of Incorporation due to the
fact that such Original Owner has given the Company notice of its intention to
terminate its Non-Competition Agreement, then the Company shall provide to such
Original Owner during the period between the date on which such share or shares
of Preferred Stock is or are redeemed and the date on which such Original
Owner's Non-Competition Agreement terminates the same financial information as
the Company provides to the Board, except to the extent the Independent
Directors determine that it would be inappropriate for such Original Owner to
receive any particular portion of such financial information in light of the
fact that such Original Owner has delivered to the Company a notice of its
intention to terminate its Non-Competition Agreement. Any vacancy resulting
from any such resignation shall be filled with an Independent Director chosen
by a majority of the whole Board (such individual, a "Replacement Original
Owner Director"); provided that if any such vacancy results from the transfer
by such Original Owner of Shares and the share of any series of Preferred Stock
to (i) a Permitted Preferred Stock Transferee and the holder of such series of
Preferred Stock continues to be entitled to elect an individual to the Board
pursuant to the Restated Certificate of Incorporation, or (ii) another Original
Owner as a result of which the holder of the share of such series of Preferred
Stock continues to be entitled to elect an individual to the Board pursuant to
the Restated Certificate of Incorporation, any such vacancy shall be filled in
accordance with the relevant provisions of the Restated Certificate of
Incorporation; and provided further that no Original Owner may transfer the
share of a series of Preferred Stock other than in accordance with this
Agreement and the Restated Certificate of Incorporation.
(b) In the event a vacancy on the Board occurs as a
result of the death, disability, resignation, removal or otherwise of a
Director (other than the resignation of an Original Owner Director as set forth
in Section 2.03(a)), such vacancy shall be filled as follows:
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(i) In the event such vacancy results from the death,
disability, resignation, removal or otherwise of an
Independent Director, such vacancy shall be filled
with another Independent Director chosen by a
majority of the whole Board.
(ii) In the event such vacancy results from the death,
disability, resignation, removal or otherwise of a
Management Director, such vacancy shall be filled by
the Board with the successor Chief Executive Officer,
Chief Financial Officer or Chief Operating Officer
(or General Counsel in the absence of such Chief
Operating Officer), as the case may be, or any other
officer acting in such capacity at the direction of
the Board or the Chief Executive Officer.
(iii) In the event such vacancy results from the death,
disability, resignation, removal or otherwise of an
Original Owner Director, such vacancy shall be filled
by the Original Owner that holds the share of the
series of Preferred Stock that was entitled to elect
the Original Owner Director so ceasing to be a
Director in accordance with the provisions of the
Restated Certificate of Incorporation.
(iv) In the event such vacancy results from the death,
disability, resignation, removal or otherwise of a
Replacement Original Owner Director, such vacancy
shall be filled with an Independent Director chosen
by a majority of the whole Board.
(c) The Directors chosen under subsections (a) and (b) of
this Section 2.03 shall hold office until the next election of the class for
which such Directors were chosen and until their successors shall have been
elected and qualified.
SECTION 2.04. Removal. As provided in the Restated
Certificate of Incorporation, any Original Owner that holds the share of a
series of Preferred Stock may, at any time in its sole discretion, remove the
Original Owner Director elected by such series of Preferred Stock, and elect
another individual to serve in the stead of such removed Original Owner
Director; provided that such removal and election be pursuant to a written
notice to the Company complying with Section 5.05 and identifying the
individual to serve in the stead of such removed Director. The Company shall
promptly inform the other Original Owners of such removal and election. The
vacancy resulting from such removal shall be filled in accordance with Section
2.03(b)(iii).
SECTION 2.05. Classification of Directors. The Company shall
take such actions as are necessary, and each of the Original Owners shall vote
its Shares, elect its Original Owner Directors and take such other actions as
are necessary, to cause the classes
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of Directors to consist of the following Management Directors, Original Owner
Directors and Independent Directors:
(a) The Directors whose terms will expire at the first
annual meeting of the stockholders of the Company following the
consummation of the IPO shall consist of the General Counsel of the
Company, one Original Owner Director elected by Covia, one Original
Owner Director elected in accordance with Section 2.05(d) by an
Original Owner whose Parent Entity is based in Europe, and one
Independent Director;
(b) The Directors whose terms will expire at the second
annual meeting of the stockholders of the Company following the
consummation of the IPO shall consist of the Chief Financial Officer
of the Company, one Original Owner Director elected by Covia, one
Original Owner Director elected in accordance with Section 2.05(d) by
an Original Owner whose Parent Entity is based in Europe, and one
Independent Director;
(c) The Directors whose terms will expire at the third
annual meeting of the stockholders of the Company following the
consummation of the IPO shall consist of the Chief Executive Officer
of the Company, one Original Owner Director elected by Covia, one
Original Owner Director elected by USAM, one Original Owner Director
elected in accordance with Section 2.05(d) by an Original Owner whose
Parent Entity is based in Europe, and one Independent Director;
(d) The Original Owners that hold the shares of any
series of Preferred Stock and whose Parent Entities are based in
Europe shall determine among themselves which of them shall be
entitled to elect an Original Owner Director to each of the classes
described in Sections 2.05(a), (b) and (c).
SECTION 2.06. Committees. (a) The Company and each of the
Original Owners shall take such actions as are necessary to cause the Board at
all times to designate annually the following committees of the Board:
(i) A Nominating Committee, which shall review, report
and make recommendations to the Board on the following matters: other
than with respect to Original Owner Directors, and consistent with the
terms of this Agreement, nominees for Directors, selection criteria
for Directors, and removal of Directors if deemed appropriate;
evaluation and performance of the Board and individual Directors; and
such other matters as the Board may from time to time prescribe.
(ii) An Audit Committee, which shall review, report and
make recommendations to the Board on the following matters: the
selection of independent auditors; the fees to be paid to such
auditors; the adequacy of the audit and
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accounting procedures of the Company; and such other matters as the
Board may from time to time prescribe.
(iii) A Compensation Committee, which shall review, report
and make recommendations to the Board on the following matters: the
management remuneration policies of the Company, including salary
rates and fringe benefits of appointed officers; other remuneration
plans such as incentive compensation, deferred compensation and stock
option plans; directors' compensation and benefits; and such other
matters as the Board may from time to time prescribe.
(b) The Nominating Committee shall include (i) at least
one Original Owner Director elected by an Original Owner whose Parent Entity is
based in Europe and (ii) at least one Original Owner Director elected by an
Original Owner whose Parent Entity is based in North America. In addition, the
Nominating Committee shall include at least one Management Director and may
include one Independent Director. The initial Chief Executive Officer of the
Company shall be the initial Management Director on the Nominating Committee.
(c) The Compensation Committee shall include (i) at least
one Original Owner Director elected by an Original Owner whose Parent Entity is
based in Europe and (ii) at least one Original Owner Director elected by an
Original Owner whose Parent Entity is based in North America. In addition, the
Compensation Committee shall include at least one Independent Director and may
include one Management Director (and if a Management Director does serve on the
Compensation Committee, the initial Chief Executive Officer shall be the
initial Management Director thereon). Notwithstanding the foregoing, the
membership of the Compensation Committee shall be adjusted to the extent
necessary so that (i) it is comprised of two or more "non-employee directors"
within the meaning of Rule 16b-3(b)(3)(i) promulgated under the Exchange Act
and (ii) it is comprised of two or more "outside directors" within the meaning
of Treas. Reg. Section 1.162-27(e)(3) promulgated under Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code"), except to the extent
that the Company may continue to rely on the transition relief provided
pursuant to the Treas. Reg. Section 1.162-27(f) promulgated under Section
162(m) of the Code.
SECTION 2.07. Compensation of Directors. Unless otherwise
restricted by the Restated Certificate of Incorporation or By-Laws of the
Company, each Independent Director, in consideration for his or her serving as
such, shall receive from the Company compensation in an amount and form
customary for public companies comparable to the Company. Management Directors
shall not receive compensation for serving as Directors. Original Owner
Directors will receive the same compensation as received by Independent
Directors; provided that all cash compensation payable to an Original Owner
Director who is an employee or officer of the Original Owner (or an Affiliate
thereof) electing such Director shall be paid by the Company either to such
Original Owner or such Affiliate, and, in the case of non-cash compensation (in
the form of stock options or otherwise), such non-cash
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compensation will be converted into a cash amount equal to the fair market
value of such non-cash compensation, as calculated by the Company (based, in
the case of stock options, on the Black-Scholes Option Pricing Model), and such
amount will be paid by the Company either to such Original Owner or such
Affiliate. The Company shall reimburse each Director or member of a committee
for any out-of-pocket expenses incurred by him or her on account of his or her
attendance at any meeting of the Board or such committee; provided that all
such expenses payable to an Original Owner Director who is an officer or
employee of an Original Owner (or an Affiliate thereof) will be paid by the
Company either to such Original Owner or such Affiliate.
SECTION 2.08. Air Vendor Consultation Group. As promptly as
practicable after the date hereof, the Company shall establish an air vendor
consultation group (the "Air Vendor Consultation Group"). The airline
Affiliate or airline Affiliates of each Distributor shall be entitled to
appoint one representative in the aggregate, and the airline Affiliate or
airline Affiliates of each Original Owner that does not have an Affiliate that
is a Distributor shall be entitled to appoint one representative in the
aggregate, to the Air Vendor Consultation Group, provided that no such airline
Affiliate shall be represented on the Air Vendor Consultation Group if the
Original Owner (including, without limitation, any Person that shall have
become an Original Owner pursuant to Section 3.05) of which it is an Affiliate
no longer holds an Interest in the Company. The Air Vendor Consultation Group
shall meet from time to time with the Company's management to discuss
distribution-related issues in accordance with appropriate guidelines
(including applicable law).
ARTICLE III
RESTRICTIONS ON TRANSFER
SECTION 3.01. General Restriction. No Original Owner shall,
directly or indirectly, make or solicit any Sale with respect to any Share, or
any share of Preferred Stock, except in compliance with the Securities Act and
this Agreement.
SECTION 3.02. Legends. (a) The Company shall affix to each
certificate evidencing Shares or shares of Preferred Stock a legend in
substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO
REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE ON
THE BOOKS OF THE ISSUER UNLESS SUCH TRANSFER IS MADE IN
CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR
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PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT OR SUCH ACT DOES NOT APPLY."
(b) In the event that any Shares shall cease to be
Restricted Shares, the Company shall, upon the written request of the holder
thereof, issue to such holder a new certificate evidencing such Shares without
the legend required by Section 3.02(a) endorsed thereon; provided; however,
that such holder shall furnish the Company or its transfer agent such
certificates, legal opinions or other information as the Company or its
transfer agent may reasonably require to confirm that the legend is not
required on such certificate.
(c) The Company shall affix to each certificate
evidencing Shares or shares of Preferred Stock a legend in substantially the
following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN A
STOCKHOLDERS' AGREEMENT, DATED AS OF JULY 30, 1997, AS IT MAY
BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO
REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE ON
THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS
SHALL HAVE BEEN COMPLIED WITH."
(d) In the event that any Shares or any shares of
Preferred Stock shall cease to be subject to the restrictions on transfer set
forth in this Agreement and in the Restated Certificate of Incorporation, the
Company shall, upon the written request of the holder thereof, issue to such
holder a new certificate evidencing such Shares or such shares of Preferred
Stock, as the case may be, without the legend required by Section 3.02(c).
SECTION 3.03. Restrictions on Certain Transfers of Shares.
No Original Owner shall, directly or indirectly, make or solicit any Sale of
any Share beneficially owned by it other than (a) any Sale to a Third Party or
Third Parties (including in connection with a Sale effected through an offering
made pursuant to the Registration Rights Agreement), (b) any Sale to one of its
Affiliates that is made in compliance with the procedures, and subject to the
limitations, set forth in Section 3.05 and (c) any Sale to another Original
Owner or any of its Affiliates that is made in compliance with the procedures,
and subject to the limitations, set forth in Section 3.04. Notwithstanding the
foregoing, except as otherwise expressly provided in this Agreement, all Sales
permitted by the foregoing clauses (a) through (c) shall be subject to, and
shall not be made other than in compliance with, the provisions of Sections
3.01 and 3.09.
SECTION 3.04. Right of First Refusal. (a) If, at any time,
any Original Owner (the "Selling Original Owner") shall have agreed with
another Original Owner or an Affiliate thereof (a "Prospective Buyer") to sell
or otherwise transfer, whether directly or
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indirectly, in a bona fide transaction, any or all of the Shares (the "Offered
Shares") held by such Selling Original Owner (other than pursuant to an Offer
(as defined in Section 4.01(b)) or a public offering effected in accordance
with the Registration Rights Agreement or otherwise) to the Prospective Buyer,
such Selling Original Owner shall deliver a written notice of its intention to
sell the Offered Shares (a "Notice of Intention"), to each of the other
Original Owners (other than the Prospective Buyer) (the "First Refusal Original
Owners"), as well as to the Company and the Prospective Buyer, setting forth
such Selling Original Owner's intention to make such Sale (which shall be for
cash only), the number of Offered Shares, the cash price at which such Selling
Original Owner proposes to sell the Offered Shares to the Prospective Buyer
(the "First Refusal Price"), and the other material terms of the Prospective
Buyer's offer. A Notice of Intention, once given, shall be irrevocable. The
Notice of Intention shall be dated the date it is delivered by the Selling
Original Owner to the First Refusal Original Owners and the Company.
(b) Upon receipt of the Notice of Intention, each First
Refusal Original Owner and the Prospective Buyer shall have the right to
purchase at the First Refusal Price, and otherwise on the same terms set forth
in the Notice of Intention, such number of Offered Shares up to the Pro Rata
Number for such Original Owner or Prospective Buyer; provided, however, that
any of such Persons may indicate in its Notice of Exercise (as defined below)
that it wishes to purchase more than its Pro Rata Number. The right of the
First Refusal Original Owners and the Prospective Buyer to purchase Offered
Shares pursuant to this Section 3.04(b) shall be exercisable by written notice
to the Selling Original Owner (the "Notice of Exercise"), which notice shall
state the maximum number of Offered Shares such Person is willing to buy, with
copies to each of the other First Refusal Original Owners, the Prospective
Buyer and the Company, within 30 days from the date of the Notice of Intention
(the "Option Period"). The right of any First Refusal Original Owner pursuant
to this Section 3.04(b) shall terminate if it is not exercised within 30 days
of the date of the Notice of Intention. A Notice of Exercise, once given,
shall be irrevocable.
(c) Upon receipt of the Notices of Exercise, the Selling
Original Owner shall promptly calculate the number of Offered Shares which the
Prospective Buyer and each First Refusal Original Owner is entitled to purchase
hereunder. If the Notices of Exercise indicate that the Prospective Buyer and
each First Refusal Original Owner wishes to purchase at least its Pro Rata
Number of Offered Shares, the First Refusal Original Owners and the Prospective
Buyer shall each be allocated a number of Offered Shares equal to its
respective Pro Rata Number. If the Notices of Exercise indicate that the
Prospective Buyer or one or more First Refusal Original Owners do not wish to
purchase their Pro Rata Number of Offered Shares, the Prospective Buyer and the
First Refusal Original Owners who have indicated in their respective Notices of
Exercise that they wish to purchase more than their Pro Rata Number of Offered
Shares shall each be given an opportunity to acquire a number of the Offered
Shares that are not so taken up equal to the Pro Rata Number (which shall be
calculated, for purposes of the foregoing allocation only, by taking into
account only the Shares of the Prospective Buyer and the First Refusal Original
Owners who shall have
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indicated that they wish to purchase more than their Pro Rata Number of Offered
Shares), and the foregoing procedure shall be repeated until all of the Offered
Shares have been taken up; provided, however, that (i) no such First Refusal
Original Owner shall be obligated to purchase more Offered Shares than such
First Refusal Original Owner shall have indicated it is willing to purchase in
its Notice of Exercise, and (ii) in the event that fewer than all of the
Offered Shares have been taken up within 20 days from the date of delivery of
the last Notice of Exercise received by the Selling Original Owner, the Selling
Original Owner shall not be obligated to sell any of the Offered Shares
pursuant to this Section 3.04.
(d) Subject to clause (ii) of the proviso to Section
3.04(c), the Selling Original Owner shall sell the Offered Shares to such First
Refusal Original Owners and the Prospective Buyer within 45 days from the date
of delivery of the last Notice of Exercise received by the Selling Original
Owner.
(e) Notwithstanding the provisions of Sections 3.04(b)
and (c), the Prospective Buyer shall have the right, upon written notice to the
Selling Original Owner (with copies to each of the First Refusal Original
Owners and the Company) within 10 days from the date of the Notice of
Intention, to elect not to purchase any of the Offered Shares pursuant to the
procedures set forth in Sections 3.04(b) and (c). If the Selling Original
Owner does not sell any of the Offered Shares to the First Refusal Original
Owners pursuant to this Section 3.04, then the Selling Original Owner may sell
the Offered Shares to the Prospective Buyer within 45 days from the date of
delivery of the last Notice of Exercise at a price no lower than the First
Refusal Price and on terms no more favorable to the Prospective Buyer than
those set forth in the Notice of Intention.
(f) Upon the consummation of any purchase and Sale
pursuant to this Section 3.04, the Selling Original Owner shall deliver
certificates evidencing the Offered Shares sold duly endorsed, or accompanied
by written instruments of transfer, in form and substance satisfactory to the
purchaser thereof, duly executed by the Selling Original Owner, free and clear
of any encumbrance, against delivery of the purchase price for such shares
payable in immediately available funds by wire transfer. The Selling Original
Owner shall be responsible for and pay any stamp taxes or other similar
conveyance fees incurred as a result of the Sale of the Offered Shares.
SECTION 3.05. Affiliate Transferees to Execute Agreement.
Each Original Owner agrees that it will not, directly or indirectly, make any
Sale of any Shares held by such Original Owner to any of its Affiliates,
unless, prior to the consummation of any such Sale, the Affiliate to whom such
Sale is proposed to be made (a "Prospective Affiliate Transferee") (i) executes
and delivers to the Company a counterpart of this Agreement as it may have been
amended as of such time and (ii) represents and warrants in writing to the
Company that such Agreement has been duly authorized, executed and delivered by
such Prospective Affiliate Transferee and is a legal, valid and binding
obligation of such Prospective Affiliate Transferee enforceable against it in
accordance with its terms. Upon
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the execution and delivery by such Prospective Affiliate Transferee of the
documents referred to in the preceding sentence, such Prospective Affiliate
Transferee shall be deemed an "Original Owner" for the purposes of this
Agreement, and shall have the rights and be subject to the obligations of an
Original Owner hereunder with respect to the Shares held by such Prospective
Affiliate Transferee. Notwithstanding anything to the contrary set forth
herein, if any Shares are transferred from an Original Owner to one of its
Affiliates as a result of a merger between an Original Owner and an Affiliate
of such Original Owner, and pursuant to such merger such Affiliate assumes such
Original Owner's obligations under this Agreement (whether by operation of law
or otherwise), such Affiliate shall not be required to comply with the
provisions of clauses (i) and (ii) of this Section 3.05.
SECTION 3.06. Sale to a Third Party. If a Sale of Shares is
made in connection with a simultaneous Sale of shares of Preferred Stock to a
Permitted Preferred Stock Transferee that complies with all of the requirements
set forth in Section 3.07, such Shares shall be deemed "Shares" and such
Permitted Preferred Stock Transferee shall be deemed an "Original Owner" for
all purposes of this Agreement. If a Sale of Shares is made to a Third Party
(a "Third Party Transferee") that is not a Permitted Preferred Stock Transferee
that complies with all of the requirements set forth in Section 3.07, such
Shares shall immediately cease to be the subject of this Agreement and such
Third Party Transferee will not become an Original Owner for purposes of this
Agreement. If a Sale of Shares results in the selling Original Owner ceasing
to own any Shares, such selling Original Owner shall cease to be an Original
Owner for purposes of this Agreement.
SECTION 3.07. Restrictions on Certain Transfers of Shares of
Preferred Stock. (a) No Original Owner shall, directly or indirectly, make or
solicit any sale of any share of Preferred Stock beneficially owned by it
unless such Sale is in connection with a simultaneous Sale of Shares to (i)
another Original Owner, (ii) one of such Original Owner's Affiliates, or (iii)
a Third Party (each of (i), (ii) and (iii), a "Permitted Preferred Stock
Transferee"), and in each such case, (A) such Permitted Preferred Stock
Transferee would, after giving effect to such transfer, hold Shares
representing at least 5% of the then outstanding shares of Common Stock,
provided, that if the Original Owner transferring such shares of Preferred
Stock holds Shares representing less than 5% of the then outstanding shares of
Common Stock but the series of Preferred Stock held by such Original Owner
continues to be entitled to elect a Director due to the operation of Sections
4.3(d)(2), (3), (4) or (5) of the Restated Certificate of Incorporation, then
the foregoing clause (A) shall be deemed to be satisfied if (x) such Permitted
Preferred Stock Transferee would, after giving effect to such transfer, hold
shares of Common Stock representing at least 5% of the then outstanding shares
of Common Stock, or (y) such Permitted Preferred Stock Transferee shall have
purchased additional shares of Common Stock in the public market or otherwise
in order to increase its holdings of shares of Common Stock to at least 5%
within 90 days after such transfer (and unless and until such Permitted
Preferred Stock Transferee shall have increased its holdings of shares of
Common Stock to at least 5% within such 90 day period, it shall not be entitled
to elect any Directors to the Board pursuant to the terms of the
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Preferred Stock that is or are proposed to be transferred to it), and (B) if
the Permitted Preferred Stock Transferee is not already a party to this
Agreement and a Non-Competition Agreement, such Permitted Preferred Stock
Transferee executes and delivers to the Company (x) a counterpart of this
Agreement, together with (y) a Non-Competition Agreement, and represents and
warrants in writing to the Company that such agreements have been duly
authorized, executed and delivered by such Permitted Preferred Stock Transferee
and are legal, valid and binding obligations of such Permitted Preferred Stock
Transferee enforceable against it in accordance with their respective terms.
(b) In no event shall any fraction of a share of
Preferred Stock, or any partial interest therein, be transferred to any other
Person.
SECTION 3.08. Improper Sale. Any attempt not in compliance
with this Agreement to make any Sale of any Shares or any shares of Preferred
Stock shall be null and void and the Company shall not give any effect in the
Company's stock records to such attempted Sale.
SECTION 3.09. Limitation on Dispositions. As of the date
hereof and again as of the date of the IPO, and except (i) with respect to the
number of Shares in the secondary offering listed opposite the name of such
Parent Entity or the Parent Entity with respect to such stockholder in the
column "Number of Shares of Common Stock Being Offered" in the section entitled
"Principal and Selling Stockholders" in the Form S-1 filed in connection with
the IPO, or (ii) for transfers permitted by Section 351(c) of the Code, each of
the stockholders listed in Schedule A represents that it, and each of the
Parent Entities represents that its respective Affiliate listed in Schedule A,
(x) has not entered into any binding commitment, obligation or contract to
sell, transfer or dispose of Shares or shares of Preferred Stock received by
such stockholder in connection with the formation of the Company, (y) has no
plan, arrangement or understanding with any Nonaffiliated Person (including,
but not limited to, investment banks or brokers), and is not under any economic
compulsion, to sell, transfer or dispose of Shares or shares of Preferred Stock
received by such stockholder in connection with the formation of the Company to
any Person and (z) has no plan, arrangement or understanding, and is not under
any economic compulsion, to sell, transfer or dispose of Shares or shares of
Preferred Stock received by such stockholder in connection with the formation
of the Company to any Affiliated Person. Notwithstanding any other provision
of this Agreement, except with respect to the number of Shares in the secondary
offering listed opposite the name of such Parent Entity or the Parent Entity
with respect to such stockholder in the column "Number of Shares of Common
Stock Being Offered" in the section entitled "Principal and Selling
Stockholders" in the Form S-1 filed in connection with the IPO, each of the
stockholders listed in Schedule A, and each of the Parent Entities agrees that
its respective Affiliate listed in Schedule A, will not sell, transfer or
dispose of any of the Shares or shares of Preferred Stock received by such
stockholder in connection with the formation of the Company prior to the
expiration of six months following the IPO unless such stockholder and its
respective Parent Entity has delivered a
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written opinion of a nationally recognized U.S. tax counsel to the Company,
which opinion provides that such sale, transfer or disposition will not cause
the formation of the Company to fail to qualify under Section 351 of the Code.
In connection with the rendering by such counsel of such opinion, the Company
will provide to such counsel such information in the Company's possession, and
will make reasonable efforts to obtain such relevant information, as counsel
may reasonably request. The Company shall provide a copy of any opinion
received by it pursuant to the second preceding sentence or pursuant to Section
5.12 hereof to each Parent Entity and nothing herein shall be construed to
prohibit any Parent Entity from submitting a copy of any such opinion to the
United States Internal Revenue Service or to any state or local taxing
authority in the course of an examination or audit of such Parent Entity or any
Affiliate thereof.
ARTICLE IV
CERTAIN AGREEMENTS
SECTION 4.01. Certain Agreements. (a) Except as expressly
contemplated by this Agreement, each of the Parent Entities and the Original
Owners and their respective Affiliates shall not:
(i) acquire, offer to acquire, or agree to acquire,
directly or indirectly, by purchase or otherwise, (x) any Voting
Securities that would increase or would have the effect of increasing
such Parent Entity's or Original Owner's (A) level of beneficial
ownership in the Company to more than 50% of the then outstanding
Voting Securities or (B) voting power to more than 50% of the voting
power of the then outstanding Voting Securities, or (y) any direct or
indirect rights to acquire any Voting Securities that would increase
or would have the effect of increasing such Parent Entity's or
Original Owner's (A) level of beneficial ownership in the Company to
more than 50% of the then outstanding Voting Securities or (B) voting
power to more than 50% of the voting power of the then outstanding
Voting Securities if such rights were exercised.
(ii) make any public announcement with respect to, or
submit a proposal for, any transaction involving a Parent Entity,
Original Owner or of any Affiliate thereof that would increase or
would have the effect of increasing such Parent Entity's or Original
Owner's (A) level of beneficial ownership in the Company to more than
50% of the then outstanding Voting Securities or (B) voting power to
more than 50% of the voting power of the then outstanding Voting
Securities;
(iii) form, join or in any way participate in a "group" as
such term is defined for purposes of Section 13(d)(3) of the
Securities Exchange Act, in connection with any of the foregoing; or
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(iv) request the Company, directly or indirectly, to amend
or waive any provision of this Section 4.01(a).
(b) Notwithstanding the provisions of Section 4.01(a), a
Parent Entity, Original Owner or any Affiliate thereof, acting individually or
acting in concert as a "group" as such term is defined for purposes of Section
13(d)(3) of the Securities Exchange Act (an "Acquiring Owner"), may offer to
acquire all of the outstanding Voting Securities (the "Offer"); provided,
however, that (i) (A) the Acquiring Owner submits a written proposal (the
"Proposal") to the Independent Directors setting forth a brief description of
the Offer, the price and other material terms of such Offer and any other
information that the Independent Directors may request and (B) the price and
other material terms of the Offer are approved by the Independent Directors or
(ii) in the event that the Independent Directors cannot reach agreement with
the Acquiring Owner with respect to the price of the Offer within 45 days
following the receipt of the Proposal, a nationally recognized investment
banking firm selected by the Independent Directors, after consultation with the
Acquiring Owner, independent of the Company and the Acquiring Owner and
knowledgeable with respect to the business of the Company (the "Investment
Bank") will determine a price that is fair from a financial point of view to
the stockholders of the Company (other than the Acquiring Owner). The fees,
costs and expenses of the Investment Bank shall be borne by the Acquiring
Owner. The Independent Directors shall notify the Acquiring Owner within 2
business days of the delivery of such determination by the Investment Bank.
Notwithstanding anything to the contrary in this Section 4.01, the Independent
Directors shall not be obligated to consider any Offer made by an Acquiring
Owner unless such Offer is a bona fide offer for all of the Voting Securities
of the Company.
SECTION 4.02. No Solicitation. Except as expressly
contemplated by this Agreement, none of the Parent Entities, Original Owners or
any of their respective Affiliates shall make, or in any way participate,
directly or indirectly in, nor shall they form, join or in any way participate
in a "group", as such term is defined for purposes of Section 13(d)(3) of the
Securities Exchange Act, in connection with, any "solicitation" of "proxies" to
vote (as such terms are used in the rules of the Commission) in opposition to
any proxy solicitation being conducted by the Company; provided, however, that
the foregoing shall not prohibit any communication not amounting to a
solicitation of proxies.
SECTION 4.03. Issuances of Shares of Capital Stock. The
Company shall not, at any time during the term of this Agreement, issue any
shares of capital stock unless such issuance is approved by a majority of the
whole Board.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01. Further Action. Each of the parties hereto
shall use all reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and consummate and
make effective the transactions contemplated by this Agreement.
SECTION 5.02. Representations. Each of the parties hereto
represents that this Agreement has been duly authorized, executed and delivered
by such party and constitutes a legal, valid and binding obligation of such
party, enforceable against it in accordance with the terms of this Agreement.
SECTION 5.03. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
SECTION 5.04. Amendments and Waivers. Any term in this
Agreement may be amended or waived upon the written consent of the holders of
more than 66 2/3% of the Shares then held by the Original Owners; provided,
however, that (i) any amendment or waiver that adversely affects any Parent
Entity or Original Owner shall require the consent in writing of such Parent
Entity or Original Owner (whether or not such amendment or waiver affects any
one or more of the other Original Owners), (ii) any amendment to the provisions
of Article II shall require the consent in writing of the Company and the
Original Owners then party to this Agreement that hold series of Preferred
Stock that are entitled to elect one or more directors to the Board pursuant to
the terms of the Preferred Stock, and (iii) any amendment to any of the
provisions of Section 4.01 or 4.02 shall require the consent in writing of each
of the parties hereto, including the Company. Except where consent is required
pursuant to this Section 5.04, each of the Parent Entities and the Original
Owners shall be bound by any amendment or waiver authorized by this Section
5.04. Each party hereto, including the Company, agrees that it shall not take
or cause to be taken any action to adopt, amend or repeal any provision of the
Restated Certificate of Incorporation or the Restated By-laws of the Company so
as to make them inconsistent in any manner with this Agreement or the
Registration Rights Agreement.
SECTION 5.05. Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing and shall be
given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by courier service, by cable, by telecopy, by
telegram, by telex or by registered or certified mail
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(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 5.05):
(a) if to United or Covia:
United Air Lines, Inc.
Xxxx Xxxxxx Xxx 00000
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(b) if to USAW or USAM:
US Airways, Inc.
Crystal Park Four
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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(c) if to Air Canada or Resnet:
Air Canada Inc.
000 Xxxxx Xxxxxx Xxxx (XXX 450)
0xx Xxxxx, Xxxxxxx, Xxxxxxx
X0X 0X0, Xxxxxx
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
with a copy to:
Osler, Xxxxxx & Harcourt
1 First Canadian Place
000 Xxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
(d)(i) if to British Airways:
British Airways plc
Xxxxxxxxx Xxxxx
XX Xxx 00
Xxxxxxxx Xxxxxxx (Xxxxxx)
Xxxxxxxx, Xxxxxxxxx
Xxxxxxx XX0 0XX
Telecopy: 011 44 181 562 3233
Attention: Xxxxx Xxxxxxx
with a copy to:
Distribution Systems, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxx
Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Secretary
Telecopy: c/x Xxxxxxxx Xxxxxxxx & Xxxx
(000) 000-0000
26
23
(d)(ii) if to DSI:
Distribution Systems, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxx
Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Secretary
Telecopy: c/x Xxxxxxxx Xxxxxxxx & Xxxx
(000) 000-0000
with a copy to:
British Airways plc
Xxxxxxxxx Xxxxx
XX Xxx 00
Xxxxxxxx Xxxxxxx (Xxxxxx)
Xxxxxxxx, Xxxxxxxxx
Xxxxxxx XX0 0XX
Telecopy: 011 44 181 562 3233
Attention: Xxxxx Xxxxxxx
(e) if to SAirGroup or Roscor:
SAirGroup (Ltd.)
XX-0000
Xxxxxx Xxxxxxx
Xxxxxxxxxxx
Telecopy: 011 41 1 812 9178
Attention: Xxxxxxx X. Schorderet
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
27
24
(f) if to KLM or TIS:
KLM Royal Dutch Airlines
AMS/MA
X.X. Xxx 0000, 0000 XX Xxxxxxx
Xxxxxxxxxxxxxx 00
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
Telecopy: 011 31 20 6 49 1852
Attention: Xxxxx X. Xxxxxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
(g) if to Aer Lingus or Retford:
Aer Lingus plc
Xxxx Xxxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx
Telecopy: 011 3531 705 3833
Attention: Xxxxxx Xxxxxxx
(h) if to Alitalia or Racom:
Alitalia - Linee Aeree Italiane S.p.A.
Centro Direzionale Alitalia
Xxxxx Xxxxxxxxxx Xxxxxxxxx XXX
00000 Xxxx
Xxxxx
Telecopy: 011 39 6 6562 4368
Attention: Xx. Xxxxxxxxx Xxxxxxxx
28
25
with a copy to:
Studio Legale Vassalli
Xxx Xxxxxxxx xx Xxxxxxx, 00
00000 Xxxxx
Xxxxx
Telecopy: 011 39 2 7602 1260
Attention: Xxxxxxx Xxxxxxxx
(i) if to Austrian Airlines or Travidata:
Austrian Airlines
Xxxxxxxxxxxxxx 0
X-0000 Xxxxxx
Xxxxxxx
Telecopy: 011 431 689 8521
Attention: Xx. Xxxxxx Xxxxxxx
(j) if to Olympic or Olynet:
Olympic Airways
00, Xxxxxxx Xxx.
Xxxxxx
Xxxxxx
Telecopy: 011 301 9267 166
Attention: Xxxxxxxxxxxx Xxxxxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxxxx, Esq.
29
26
(k) if to TAP or Coporga:
TAP Air Portugal
Edificio 27, 10. andar
Xxxxxxxxx xx Xxxxxx
0000 Xxxxxx Codex
Portugal
Telecopy: 011 3511 841 5772
Attention: Xxxxxxx Xxxxxx
with a copy to:
(l) if to the Company:
Galileo International, Inc.
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 212-848-7179
Attention: Xxxxx X'Xxxxx, Esq.
SECTION 5.06. Benefit; Successors and Assigns. Except as
otherwise provided herein, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns; provided however that this Agreement shall not inure to the
benefit of any Prospective Affiliate Transferee unless such Prospective
Affiliate Transferee shall have complied with the terms of Section 3.05 in all
respects; provided, further, that this Agreement shall not inure to the benefit
of any Permitted Preferred Stock Transferee unless such Permitted Preferred
Stock Transferee shall have complied with the terms of Section 3.07 in all
respects; and provided further that this Agreement shall not inure with respect
to additional Shares acquired by a Prospective Buyer unless such Prospective
Buyer and Selling Original Owner shall have complied with Section 3.04 in all
respects. Nothing in this Agreement either express or implied is intended to
confer on any person, other than the parties hereto and their respective
successors and permitted assigns, any rights, remedies or obligations under or
by reason of this Agreement.
30
27
SECTION 5.07. Arbitration. Subject to the final sentence of
this Section 5.07, any dispute arising between or among the parties hereto or
any of them involving the subject matters covered by this Agreement shall be
submitted to arbitration under this Section 5.07. Any party asserting a breach
of this Agreement by any other party or parties shall notify all other parties
of such alleged breach (a "Dispute Notice") and the parties shall attempt to
resolve such dispute amicably and if they shall fail to resolve it within
thirty (30) days of the date of the Dispute Notice, any party may notify the
other parties that it wishes to commence an arbitration proceeding under this
Section 5.07 (an "Arbitration Request"). In any arbitration proceeding the
party or parties commencing the arbitration (alone or together, if more than
one, the "Petitioner") shall include in the Arbitration Request (a) a statement
of the facts constituting the alleged breach or dispute, (b) a written
statement of position ("Statement") regarding the dispute and (c) the name of
an individual designated by it to appoint an Arbitrator (an "elector"). The
Statement shall state the facts and arguments in support of the position taken
by the party submitting such Statement and shall detail that party's proposed
solution and relief sought (if any). Copies of any Arbitration Request shall
be furnished at the same time to the other parties hereto. The party or
parties with whom the Petitioner has its dispute (alone or together, if more
than one, the "Respondent") shall within fifteen (15) business days after the
date of the Arbitration Request designate a second elector by notice to the
Petitioner (copies of which shall be furnished to the other parties), but if it
or they shall fail to do so within such period the Petitioner may designate an
elector on Respondent's behalf. The electors chosen by the Petitioner and the
Respondent shall attempt to agree upon an arbitrator (the "Arbitrator"), but if
they are unable to do so within twenty (20) business days after the designation
of the second elector, then either elector thereafter may apply to the American
Arbitration Association (the "Association") for the selection of the Arbitrator
in accordance with the Commercial Arbitration Rules of such Association. The
Arbitrator so selected shall have full power to decide any dispute referred to
in this Section 5.07. The arbitration proceedings shall be conducted in the
English language, and the place of arbitration and the making of the Award (as
defined below) shall be the City of New York. The UNCITRAL rules of commercial
arbitration shall apply to any arbitration commenced pursuant to this Section
5.07, as modified by the following procedure:
(i) Within ten (10) business days of the selection of the
Arbitrator (the "Commencement Date"), the Respondent shall deliver its
Statement regarding the dispute to the Arbitrator and to the
Petitioner.
(ii) Within twenty (20) business days from the
Commencement Date, each of the Petitioner and Respondent shall deliver
to the Arbitrator and to the other party, a response ("Response") to
the other party's Statement setting forth opposing facts and
arguments and limited in length to ten (10) typed, single spaced
pages (excluding any evidentiary exhibits included therein).
31
28
(iii) Within thirty (30) business days from the
Commencement Date, each of the Petitioner and the Respondent may
deliver to the Arbitrator and to the other party, a reply to the
Response limited to setting forth facts and arguments in rebuttal to
the Statement and Response of the other party and limited in length to
five (5) typed, single spaced pages (excluding any evidentiary
exhibits included therein).
(iv) Within forty (40) business days from the Commencement
Date, each of the Petitioner and Respondent shall present an oral
summation of its position to the Arbitrator in the presence of the
other party in accordance with such rules of procedure including,
without limitation, length of presentation and right of
cross-examination, as the Arbitrator shall determine in writing and
deliver to the parties not less than five (5) business days prior to
such hearing; provided, however, that such hearing shall not exceed
eight (8) hours in total and may not be adjourned except for
extraordinary circumstances beyond the control of the parties.
(v) The Arbitrator shall either issue his decision and
award ("Award") or request a further meeting of the parties within
fifteen (15) days of the hearing.
(vi) Any such further meeting of the parties shall take
place within fifteen (15) business days of the request therefor and
shall be conducted as determined by the Arbitrator. The Arbitrator
shall issue his Award no later than fifteen (15) days after any such
further meeting of the parties.
(vii) The Award shall be in writing and shall be limited to
a decision either completely in favor of Petitioner's request for
relief or completely in favor of Respondent's request for relief. The
Award shall be final and binding upon the parties hereto and judgment
may be entered thereon in any court of competent jurisdiction and the
costs and expenses of such arbitration shall be borne by the party
losing such arbitration.
(viii) In the event that the Arbitrator fails to render his
Award within the time limits contained in Sections 5.07(v) or (vi),
the Aribitrator shall, nonetheless, retain jurisdiction over the
dispute for a reasonable period of time.
This Section 5.07 shall in no way affect the right of any
party to seek such interim relief, and only such relief, as may be required to
maintain the status quo in aid of the arbitration in any court of competent
jurisdiction.
SECTION 5.08. Changes to Non-Competition Agreement. The
Company shall not amend the provisions of any Non-Competition Agreement unless
such amendment is offered to each of the other Persons that are then parties to
a Non-Competition Agreement with the Company. The Company shall not enter into
a non-competition agreement after the
32
29
date hereof that differs in any material respect from the terms of the form
attached hereto as Exhibit A (as such form may be amended in accordance with
this Section 5.08) unless (i) the terms of such proposed non-competition
agreement are offered to each of the other Persons that are then parties to a
Non-Competition Agreement with the Company, or (ii) such action is approved by
at least four Original Owners; provided, however, that for purposes of this
clause (ii), the approval of an Original Owner and any Affiliate of such
Original Owner shall be deemed to constitute the approval of only one Original
Owner.
SECTION 5.09. Termination. Except for this Article V, this
Agreement shall terminate and be of no further force and effect, automatically
and without any required actions of the parties hereto, on the tenth
anniversary of the date hereof.
SECTION 5.10. Miscellaneous. This Agreement, the
Registration Rights Agreement and the Restated Certificate of Incorporation of
the Company set forth the entire agreement and understanding among the parties
hereto, and supersede all prior agreements and understandings, relating to the
subject matter hereof. All representations and warranties contained herein
shall survive the execution and delivery of this Agreement, regardless of any
investigation made by any party hereto or on such party's behalf. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one instrument.
SECTION 5.11. Tax Treatment. For U.S. federal, state and
local income tax purposes, the parties agree to treat the Merger and
consummation of the IPO as a transfer described in Section 351(a) of the Code.
For U.S. federal, state and local income tax purposes, the parties agree to
report the formation of the Company in a manner that is consistent with such
treatment described in the previous sentence and shall not take any position or
action contrary thereto unless required to do so by applicable tax laws
pursuant to a final determination under Section 1313(a) of the Code (or a
similar provision of state or local laws, as the case may be).
SECTION 5.12. Tax Opinion. Prior to the consummation of the
IPO, the Company shall have received a written opinion of a nationally
recognized U.S. tax counsel substantially to the effect that, based on
appropriate representations and assumptions, the Merger and consummation of the
IPO will constitute a transfer described in Section 351(a) of the Code, and as
such will not result in the recognition of gain or loss by the partners or the
Company.
33
IN WITNESS WHEREOF, the parties hereto have duly caused this
Agreement to be executed as of the date first above written above by their
respective officers thereunto duly authorized.
GALILEO INTERNATIONAL, INC.
By /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President &
Chief Executive Officer
UNITED AIR LINES, INC.
By /s/ Xxxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Financial Analysis and Controller
COVIA LLC
By United Airlines, Inc.
By /s/ Authorized Signatory
----------------------------------------
Name:
Title:
AER LINGUS PLC
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: GM, MS
34
RETFORD LIMITED
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: GM, MS
US AIRWAYS, INC.
By /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President,
Finance and CFO
USAM CORPORATION
By /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director & Treasurer
AIR CANADA
By /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx
Title: Senior Vice President,
Finance & Chief Financial
Officer
RESNET HOLDINGS, INC.
By /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx
Title: President
35
BRITISH AIRWAYS PLC
By /s/ Xxxx Xxxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Assistant Company Secretary
DISTRIBUTION SYSTEM, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
SAIRGROUP LTD.
By /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President Finance
By /s/ Georges Schorderet
-------------------------------------
Name: Georges Schorderet
Title: Executive VP
Chief Financial Officer
36
ROSCOR A.G.
By /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Chairman of the Board
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: General Manager
KONINKLIJKE LUCHTVAART
MAATSCHAPPIJ N.V.
KLM ROYAL DUTCH AIRLINES
By /s/ X.X. Van der Burg
-------------------------------------
Name: X.X. Van der Burg
Title: Senior V.P., Finance
By /s/ Authorized Signatory
-------------------------------------
Name:
Title: Senior V.P., Corporate
Development & Foreign
Relations
TRAVEL INDUSTRY SYSTEMS B.V.
By /s/ X.X. Van der Burg
-------------------------------------
Name: X.X. Van der Burg
Title: Senior V.P., Finance
By /s/ Authorized Signatory
-------------------------------------
Name:
Title: Senior V.P., Corporate
Development & Foreign
Relations
37
ALITALIA-LINEE AEREE
ITALIANE S.P.A.
By /s/ Vittorino Xxxxxxx Xxxxxxxxxx
--------------------------------------
Name: Vittorino Xxxxxxx Xxxxxxxxxx
Title: Special Attorney-in-Fact
RACOM TELEDATA S.p.A.
By /s/ Pierluigi Alemanni
--------------------------------------
Name: Pierluigi Alemanni
Title: President and CEO
AUSTRIAN AIRLINES
OESTERREICHISCHE
LUFTVERKEHRS
AKTIENGESELLSCHAFT
By /s/ Xxxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Executive Vice President
Network Management
TRAVIDATA INC.
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xx. Xxxxxx Xxxxxxx
Title: Vice President Passenger
System
38
OLYMPIC AIRWAYS S.A.
By /s/ Xxxxxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Chief Financial Group
Director
OLYNET, INC
By /s/ Xxxxxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Chief Financial Group
Director
TRANSPORTES AEREOS
PORTUGUESES S.A.
By /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Commercial Director
COPORGA, INC
By /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Representative
39
SCHEDULE A
Covia LLC, a Delaware limited liability company of which United Air Lines, Inc.
is the sole member ("Covia").
USAM Corp., a Delaware corporation and a wholly owned subsidiary of US Airways
("USAM").
Resnet Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of
Air Canada ("Resnet").
Distribution Systems Inc., a Delaware corporation and an indirect wholly owned
subsidiary of British Airways ("DSI").
Roscor A.G., a corporation organized under the laws of Switzerland and a wholly
owned subsidiary of SAirGroup ("Roscor").
Travel Industry Systems B.V., a corporation organized under the laws of the
Netherlands and a wholly owned subsidiary of KLM ("TIS").
Retford Limited, a corporation organized under the laws of Ireland and a wholly
owned subsidiary of Aer Lingus ("Retford").
Racom Teledata S&A, a corporation organized under the laws of Italy and a
majority owned subsidiary of Alitalia ("Racom").
Travidata Inc., a New York corporation and a wholly owned subsidiary of
Austrian Airlines ("Travidata").
Olynet Inc., a Delaware corporation and wholly owned subsidiary of Olympic
("Olynet").
Coporga, Inc., a Delaware corporation and wholly owned subsidiary of TAP
("Coporga").
40
SCHEDULE B
United Air Lines, Inc., a Delaware corporation ("United").
US Airways, Inc., a Delaware corporation ("USAW").
Air Canada, a corporation organized under the laws of Canada ("Air Canada").
British Airways PLC, a corporation organized under the laws of England and
Wales ("British Airways").
SAirGroup, a corporation organized under the laws of Switzerland ("SAirGroup").
KLM Royal Dutch Airlines, a corporation organized under the laws of the
Netherlands ("KLM").
Aer Lingus PLC, a corporation organized under the laws of Ireland ("Aer
Lingus").
Alitalia-Linee Aeree Italiane S.p.A., a corporation organized under the laws of
Italy ("Alitalia").
Austrian Airlines Oesterreichische Luftverkehrs Aktiengesellschaft, a
corporation organized under the laws of Austria ("Austrian Airlines").
Olympic Airways S.A., a corporation organized under the laws of Greece
("Olympic").
Transportes Aereos Portugueses S.A., a corporation organized under the laws of
Portugal ("TAP").
