EXHIBIT 10.37(b)
AMENDMENT NO. 1 TO
EXCHANGE AGREEMENT
This AMENDMENT NO. 1 TO EXCHANGE AGREEMENT (this "AMENDMENT"), is made and
entered into as of December 12, 2003, by and among Orbitz, Inc., a Delaware
corporation (the "CORPORATION"), Orbitz, LLC, a Delaware limited liability
company (the "OPERATING COMPANY"), American Airlines, Inc., a Delaware
corporation ("AMERICAN"), Continental Airlines, Inc., a Delaware corporation
("CONTINENTAL"), Omicron Reservations Management, Inc., a Delaware corporation
("DELTA"), Northwest Airlines, Inc., a Minnesota corporation ("NORTHWEST"), and
UAL Loyalty Services, Inc., a Delaware corporation ("UAL LOYALTY SERVICES"; and,
together with American, Continental, Delta and Northwest, the "AIRLINES").
WHEREAS, the Corporation, the Operating Company and the Airlines are
parties to that certain Exchange Agreement, dated as of November 25, 2003 (the
"EXCHANGE AGREEMENT"); and
WHEREAS, pursuant to Section 12(d) of the Exchange Agreement, the
Corporation, the Operating Company and the Airlines desire to amend the Exchange
Agreement as provided in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. AMENDMENTS TO THE EXCHANGE AGREEMENT.
1.1 The sixth "Whereas" clause in the Exchange Agreement is hereby amended
to read in its entirety as follows:
WHEREAS, in connection with the Public Offering, the Airlines desire
to exchange (the "SERIES A PREFERRED EXCHANGE") certain of their Class
A LLC Units, on a one-for-one basis, for Four Hundred Thirty Four
Thousand Seven Hundred Eighty Two (434,782) shares of Non-Voting
Convertible Preferred Stock;
1.2 Section 1(b) of the Exchange Agreement is hereby amended to read in
its entirety as follows:
(b) SERIES A PREFERRED EXCHANGE. Subject to the satisfaction of the
conditions set forth in this Agreement, at the Closing, the
Corporation and each Airline agree to exchange Class A LLC Units, on a
one-for-one basis, for the number of shares of Non-Voting Convertible
Preferred Stock equal to the whole number of shares rounded to the
nearest number of such
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Airline's Pro Rata Allotment (as such term is defined in Section 6(d)
of the Corporation's Amended and Restated Stockholders Agreement,
dated as of April 10, 2002, as amended (the "STOCKHOLDERS AGREEMENT")
by and among the Corporation, the Operating Company and the Airlines)
of Four Hundred Thirty Four Thousand Seven Hundred Eighty Two
(434,782) shares of Non-Voting Convertible Preferred Stock.
2. DEFINITIONS. Any capitalized terms used but not defined in this Amendment
shall have the meaning ascribed to such terms in the Exchange Agreement.
3. LIMITED AMENDMENT. This Amendment is limited by its terms and does not and
shall not serve to amend or waive any provision of the Exchange Agreement except
as expressly provided for in this Amendment. The Exchange Agreement, as amended
by this Amendment, is hereby ratified and confirmed and shall continue in full
force and effect.
4. COUNTERPARTS. This Amendment may be executed in one or more counterparts
(including by means of facsimile signature pages), each of which shall be
considered an original instrument, but all of which shall be considered one and
the same agreement, and shall become binding when one or more counterparts have
been signed by each of the parties hereto and delivered to each of the parties
hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1 to
Exchange Agreement as of the date first written above.
ORBITZ, INC. ORBITZ, LLC
By: /s/ XXXXXXX X. XXXX By: /s/ XXXXXXX X. XXXX
---------------------------- ---------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: President and Title: President and
Chief Executive Officer Chief Executive Officer
AMERICAN AIRLINES, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President--
Corporate Development and
Treasurer
CONTINENTAL AIRLINES, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
OMICRON RESERVATIONS
MANAGEMENT, INC.
By: /s/ XXXXXXX XXXXXXXX
--------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
NORTHWEST AIRLINES, INC.
By: /s/ J. XXXXXXX XXXXXXX
--------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Executive Vice
President Marketing and
Distribution
UAL LOYALTY SERVICES, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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