Exhibit 10.37
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (the "AGREEMENT") is made and entered into as
of November 25, 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 Airlines hold the Class A LLC Units and Class B LLC Units
(the "AIRLINE LLC UNITS") in the Operating Company as set forth on EXHIBIT A
hereto;
WHEREAS, the Corporation holds Class C LLC Units in the Operating
Company;
WHEREAS, the Corporation is contemplating the offer and sale of its
Class A common stock, par value $0.001 per share (the "CLASS A COMMON STOCK"),
to the public in an underwritten initial public offering, which includes a
secondary offering component (the "PUBLIC OFFERING");
WHEREAS, in connection with the Public Offering and pursuant to
Sections 6.3(b) and (c) of the Corporation's Certificate of Incorporation, as
amended (the "CERTIFICATE OF INCORPORATION"), the Airlines desire to exchange
(the "CLASS A EXCHANGE") certain of their Class A LLC Units, on a one-for-one
basis, for the number of shares of Class A Common Stock to be sold by the
Airlines in the Public Offering;
WHEREAS, the Board of Directors of the Corporation has determined that
the fair market value of one share of Series A non-voting convertible preferred
stock, par value $0.001 per share, of the Corporation (the "NON-VOTING
CONVERTIBLE PREFERRED STOCK") is equal to the fair market value of one Airline
LLC Unit to be exchanged hereby;
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 the whole number of shares of Non-Voting
Convertible Preferred Stock determined by dividing Ten Million Dollars
($10,000,000) by the price to the public of one share of Class A Common Stock in
the Public Offering;
WHEREAS, in connection with the Public Offering and pursuant to
Section 6.3(b) and (c) of the Certificate of Incorporation, the Airlines desire
to exchange (the "CLASS B EXCHANGE"; and, together with the Class A Exchange and
the Series A Preferred Exchange, the "EXCHANGE") the remainder of their Airline
LLC Units, on a one-for-one basis, for shares of Class B common stock, par value
$0.001 per share, of the Corporation (the "CLASS B COMMON STOCK"; and, together
with the Class A Common Stock and the Non-Voting Convertible Preferred Stock,
the "EXCHANGE SHARES");
WHEREAS, pursuant to an agreement dated as of the date hereof (the
"PREFERRED STOCK PURCHASE AGREEMENT"), the Airlines entered into a binding
commitment to sell the Non-Voting Convertible Preferred Stock to XXX Investments
LDC, a Cayman Islands company (the "INVESTOR");
WHEREAS, the Corporation and the Airlines have structured the Exchange
as a taxable exchange of the Airline LLC Interests for the Exchange Shares; and
WHEREAS, the Operating Company will timely file a Section 754 Election
following the Exchange.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. EXCHANGE.
(a) CLASS A EXCHANGE. Subject to the satisfaction of the conditions
set forth in this Agreement and pursuant to Sections 6.3(b) and (c) of the
Certificate of Incorporation, each Airline hereby notifies the Corporation that,
effective at the Closing, such Airline elects to exchange Class A LLC Units, on
a one-for-one basis, for the number of shares of the Class A Common Stock to be
sold by such Airline in the Public Offering, as specified in the Underwriting
Agreement, to be dated as of the effective date of the registration statement
with respect to the Public Offering (the "UNDERWRITING AGREEMENT"), to be
entered into among and between the Corporation, the Airlines and the
Underwriters party thereto.
(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 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 the whole number (rounded down) obtained by dividing Ten
Million Dollars ($10,000,000) by the price to the public of one share of Class A
Common Stock in the Public Offering.
(c) CLASS B EXCHANGE. Subject to the satisfaction of the conditions
set forth in this Agreement and pursuant to Sections 6.3(b) and (c) of the
Certificate of Incorporation, each Airline hereby notifies the Corporation that,
effective at the Closing, such Airline elects to exchange all of such Airline's
remaining Airline LLC Units (after giving effect to the Class A Exchange and the
Series A Preferred Exchange), on a one-for-one basis, for shares of the series
of Class B Common Stock to which it is entitled pursuant to Section 6.3(b) of
the Certificate of Incorporation.
2. THE CLOSING. The closing (the "CLOSING") of the transactions
contemplated hereby shall be held at the offices of Xxxxxx & Xxxxxxx LLP, 000
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 at the time and date on
which all the conditions set forth in SECTION 5 have been satisfied or waived,
or at such later time and date as the Airlines and the Corporation
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shall agree in writing (such time and date, the "CLOSING DATE").
3. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. As of the date of
this Agreement and as of the Closing Date, the Corporation hereby represents and
warrants to each Airline as follows:
(a) ORGANIZATION; GOOD STANDING; QUALIFICATION. The Corporation is
a corporation duly organized and validly existing under the laws of the State of
Delaware and is in good standing under such laws. The Corporation has the
requisite power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted and as proposed to be conducted.
The Corporation is in good standing and qualified to do business in every
jurisdiction where the failure to so qualify would have a material adverse
effect on the Corporation's business, properties, financial condition or results
of operations.
(b) CORPORATE POWER; AUTHORIZATION. The Corporation has all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery
and performance by the Corporation of this Agreement and each of the
transactions contemplated hereby have been duly and validly authorized by the
Corporation. Except for actions that have been completed or will be completed
prior to Closing, no corporate act or proceeding on the part of the Corporation,
its board of directors, or its stockholders, is necessary to authorize the
execution, delivery or performance by the Corporation of this Agreement. This
Agreement constitutes a valid and binding obligation of the Corporation
enforceable against it in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
(c) CAPITALIZATION. Attached as SCHEDULE 3(c) hereto is a table the
("CAP TABLE") that sets forth a true and correct listing of the holders and
numbers of shares of capital stock or membership units outstanding on a fully
diluted basis, as applicable, of each of the Corporation and the Operating
Company as of the date of this Agreement; PROVIDED, that (i) the Cap Table gives
effect to a 1-for-3 reverse split, contemplated to be effective on the date of
this Agreement, with respect to the capital stock of the Corporation and the
membership units of the Operating Company, (ii) the Cap Table does not give
effect to the Exchange or the Public Offering, (iii) the Cap Table does not list
the holders of options to acquire the Corporation's capital stock, but only the
aggregate number of outstanding options and (iv) the Cap Table does not list as
outstanding on a fully-diluted basis (x) shares of Common Stock issuable or
reserved for issuance by the Corporation upon the exchange of membership units
of the Operating Company pursuant to the terms of the Certificate of
Incorporation, or (y) shares of Class A Common Stock issuable or reserved for
issuance by the Corporation upon conversion of shares of Class B Common Stock or
Class C Common Stock pursuant to the terms of the Certificate of Incorporation.
At or prior to the Closing, the Corporation will prepare and deliver to the
Airlines an updated Cap Table, which will be true and correct as of the Closing
Date, giving effect to the Exchange and the Public Offering. Except as described
on SCHEDULE 3(c) or as described in the proviso to the first sentence of this
SECTION 3(c), as of the date of this Agreement, neither the Corporation nor the
Operating Company has any other equity securities of any class issued, reserved
for issuance or outstanding. Except as described on SCHEDULE 3(c), as
contemplated by
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this Agreement, or as provided in the Certificate of Incorporation, the
Stockholders Agreement and the LLC Agreement (as defined below), as of the date
of this Agreement, there are (i) no outstanding options, warrants, conversion
rights, contracts, commitments, binding arrangements, or other rights to
subscribe for or to purchase from the Corporation or the Operating Company, or
contracts, commitments or binding arrangements by the Corporation or the
Operating Company to issue, transfer or sell shares of capital stock or other
securities of the Corporation or the Operating Company (whether debt, equity or
a combination thereof) or obligating the Corporation or the Operating Company to
grant, extend or enter into any such contract, commitment or binding arrangement
and (ii) no contracts, commitments or binding arrangements which require or may
require the Corporation or the Operating Company to repurchase or otherwise
acquire or retire any of its respective capital stock or membership units, as
the case may be. Except as contemplated by this Agreement, or as provided in the
Certificate of Incorporation, the Stockholders Agreement and the LLC Agreement,
as of the date of this Agreement, there are no pre-emptive or similar rights
with respect to the Corporation's capital stock or the Operating Company's
membership units. Except as described in the Certificate of Incorporation and
the Stockholders Agreement, the Corporation is not a party to, and to its
knowledge, no shareholder of the Corporation is a party to, any voting
agreements, voting trusts, proxies or any other agreement for the voting of any
shares of the capital stock of the Corporation, or any agreement with respect to
the transferability, purchase or redemption of any shares of capital stock of
the Corporation.
(d) CONSENTS. Except as has been obtained or will be obtained prior
to Closing, no consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority or other third party on
the part of the Corporation is required in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
(e) VALID ISSUANCE OF EXCHANGE SHARES. The Exchange Shares, when
issued in compliance with the provisions of this Agreement, the Certificate of
Incorporation and the Certificate of Designations, will be validly issued, fully
paid and nonassessable, and will be free of any liens or encumbrances or
preemptive or other similar rights of the stockholders of the Corporation or
others; PROVIDED, HOWEVER, that the Exchange Shares may be subject to
restrictions on transfer (i) under state and/or federal securities laws or
otherwise required by such laws at the time a transfer is proposed, (ii) as
provided in the Certificate of Incorporation, or (iii) as set forth herein or in
the Stockholders Agreement.
4. REPRESENTATIONS AND WARRANTIES OF AIRLINES. As of the date of this
Agreement and as of the Closing Date, each Airline represents and warrants,
severally and not jointly, to the Corporation as follows:
(a) ORGANIZATION; GOOD STANDING; QUALIFICATION. Such Airline is a
corporation duly organized and validly existing under the laws of the state of
its incorporation and is in good standing under such laws. Such Airline has the
requisite corporate power and authority to own and operate its properties and
assets, and to carry on its business as presently conducted and as proposed to
be conducted. Such Airline is in good standing and qualified to do business in
every jurisdiction where the failure to so qualify would have a material adverse
effect on its ability to enter into this Agreement or to consummate the
transactions contemplated hereby.
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(b) CORPORATE POWER; AUTHORIZATION. Such Airline has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by such Airline of this Agreement and each of the transactions
contemplated hereby have been duly and validly authorized by such Airline.
Except for actions that have been completed or will be completed prior to
Closing, no corporate act or proceeding on the part of such Airline, its board
of directors, or its stockholders, is necessary to authorize the execution,
delivery or performance by such Airline of this Agreement. This Agreement
constitutes a valid and binding obligation of such Airline enforceable against
it in accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as limited by
laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
(c) CONSENTS. Except as has been obtained or will be obtained prior
to Closing, no consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority or other third party on
the part of such Airline is required in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
(d) OWNERSHIP OF AIRLINE LLC UNITS. Such Airline has, and at the
Closing will deliver to the Corporation, good and valid title to all Airline LLC
Units set forth opposite such Airline's name on EXHIBIT A hereto (as such
Exhibit may be adjusted on or prior to the Closing to account for any membership
interest split, reverse membership interest split, membership interest
distribution or the like) free and clear of all liens, charges, encumbrances, or
other security interests or claims of right to title by any third party of any
kind whatsoever, except pursuant to the terms of the Stockholders Agreement and
the Sixth Amended and Restated Limited Liability Company Agreement of Orbitz,
LLC (the "LLC AGREEMENT"), dated as of April 10, 2002 and as amended from time
to time, by and among the Airlines and the Corporation. The Airline LLC Units
listed opposite such Airline's name on EXHIBIT A hereto represent all Airline
LLC Units beneficially owned by such Airline and its affiliates.
(e) PREFERRED STOCK PURCHASE AGREEMENT. Attached as EXHIBIT B
hereto is a true and correct copy of the Preferred Stock Purchase Agreement,
which has not been amended or modified since the date thereof. Such Airline has
all requisite corporate power and authority to execute and deliver the Preferred
Stock Purchase Agreement and to consummate the transactions contemplated
thereby. The execution, delivery and performance by such Airline of the
Preferred Stock Purchase Agreement and each of the transactions contemplated
thereby have been duly and validly authorized by such Airline. Except for
actions that have been completed or will be completed prior to Closing, no other
corporate act or proceeding on the part of such Airline, its board of directors,
or its stockholders, is necessary to authorize the execution, delivery or
performance by such Airline of the Preferred Stock Purchase Agreement. The
Preferred Stock Purchase Agreement is in full force and effect and constitutes a
valid and binding obligation of such Airline enforceable against it in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as limited by
laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
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(f) NEGOTIATIONS WITH INVESTOR. Such Airline has, together with the
other Airlines or its or their representatives and counsel, engaged in
arms-length negotiations with the Investor over the terms of the Preferred Stock
Purchase Agreement. The Investor is not in any way affiliated with or related to
such Airline, by virtue of common ownership or otherwise. The Preferred Stock
Purchase Agreement sets forth all of the terms regarding the sale of the
Non-Voting Convertible Preferred Stock, and there are no other agreements,
understandings or arrangements with respect to such sale.
(g) CERTAIN EXCHANGE SHARES ARE RESTRICTED SECURITIES. Such Airline
understands that the Exchange Shares (other than the Class A Common Stock to be
registered and sold in the Public Offering) to be received by it in the Exchange
have not been, and will not be, registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), by reason of an exemption from the registration
provisions of the Securities Act. Such Airline is acquiring such Exchange Shares
for investment purposes only, and not with a view to the resale or distribution
thereof in any manner not permitted by applicable law. Such Airline understands
that such Exchange Shares received by it in the Exchange are "restricted
securities" under applicable U.S. federal and state securities laws and that,
pursuant to these laws, such Airline must hold such Exchange Shares indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. Such Airline acknowledges that, except
as set forth in the Stockholders Agreement, the Corporation has no obligation to
register or qualify the Exchange Shares for resale.
5. CONDITIONS TO CLOSING.
(a) CONDITIONS TO OBLIGATIONS OF ALL PARTIES. The obligations of
the parties under this Agreement are subject to the fulfillment or waiver of the
following conditions:
(i) There shall not have been issued and be in effect any
order, decree or judgment of, or in, any court, tribunal of competent
jurisdiction or governmental authority which makes the Exchange or any of the
other transactions contemplated by this Agreement illegal or invalid.
(ii) The Certificate of Designations, Preferences and Rights
of Series A Non-Voting Convertible Preferred Stock (par value $0.001 per share)
of Orbitz, Inc., in substantially the form attached hereto as EXHIBIT C (the
"CERTIFICATE OF DESIGNATIONS"), shall have been filed with the Secretary of
State of the State of Delaware and shall be in full force and effect.
(iii) The Preferred Stock Purchase Agreement shall be in full
force and effect (without amendment or modification thereof) and all conditions
to the consummation thereof shall have been satisfied, except for conditions to
be satisfied at the closing thereof and the condition relating to the
consummation of the Exchange.
(iv) The Corporation shall have received an opinion from
Xxxxxx & Xxxxxxx LLP, dated as of the Closing Date and in form reasonably
satisfactory to the
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Corporation, to the effect that the Exchange should be a taxable exchange for
Tax purposes.
(v) The Corporation and the Airlines shall have entered
into the Underwriting Agreement with respect to the Public Offering and all
conditions to the consummation thereof shall have been, or will
contemporaneously be, satisfied, except for conditions to be satisfied at the
Closing and the conditions relating to the consummation of the Exchange and the
Preferred Stock Purchase Agreement.
(b) CONDITIONS TO OBLIGATIONS OF EACH AIRLINE. The obligations of
each Airline under this Agreement are subject to the fulfillment or waiver of
the following conditions:
(i) All covenants, agreements and conditions contained in
this Agreement to be performed by the Corporation on or prior to the Closing
shall have been performed or complied with in all material respects.
(ii) The representations and warranties of the Corporation
shall have been accurate, true and correct in all material respects on and as of
the date hereof, and except to the extent that any such representation or
warranty is made solely as of the date hereof or as of another date earlier than
the Closing Date shall also be accurate, true and correct in all material
respects, on and as of the Closing Date with the same force and effect as though
made by the Corporation on and as of the Closing Date.
(c) CONDITIONS TO OBLIGATIONS OF THE CORPORATION. The obligations
of the Corporation under this Agreement are subject to the fulfillment or waiver
of the following conditions:
(i) All covenants, agreements and conditions contained in
this Agreement to be performed by each Airline on or prior to the Closing shall
have been performed or complied with in all material respects.
(ii) The representations and warranties of each Airline
shall have been accurate, true and correct in all material respects on and as of
the date hereof, and except to the extent that any such representation or
warranty is made solely as of the date hereof or as of another date earlier than
the Closing Date shall also be accurate, true and correct in all material
respects, on and as of the Closing Date with the same force and effect as though
made by such Airline on and as of the Closing Date.
(iii) Each Airline shall have delivered to the Corporation
instruments of transfer, in form and substance reasonably satisfactory to the
Corporation, to effect the transfer of the Airline LLC Units to the Corporation.
6. TERMINATION. If the conditions set forth in SECTION 5 hereof are not
satisfied or waived on or before February 1, 2004, or if the registration
statement with respect to the Public Offering is withdrawn for any reason prior
to that date, this Agreement shall become null and void and be of no further
force or effect whatsoever and none of the Airlines, the Operating Company or
the Corporation shall have any further obligations hereunder or with respect
hereto.
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7. FURTHER ASSURANCES. From time-to-time and after the date hereof, each
Airline shall deliver or cause to be delivered to the Corporation and the
Operating Company such further documents and instruments and shall do and cause
to be done such further acts as the Corporation and the Operating Company shall
reasonably request to carry out more effectively the provisions and purposes of
this Agreement.
8. NO INCONSISTENT ARRANGEMENTS. Each Airline hereby covenants and agrees
that, except as contemplated by this Agreement (including SECTION 13 hereof), it
shall not (a) except to the Corporation, transfer (which shall include, without
limitation, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Airline LLC Units held by it or any interest
therein, (b) except with the Corporation, enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all of
the Airline LLC Units held by it or any interest therein, (c) grant any proxy,
power-of-attorney or other authorization in or with respect to the Airline LLC
Units held by it, or (d) take any other action that would in any way restrict,
limit or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or which would make any representation or
warranty of such Airline hereunder untrue or incorrect; PROVIDED, that prior to
the time that an Airline has entered into the Underwriting Agreement with
respect to the Public Offering, such Airline may transfer any or all of the
Airline LLC Units to a Qualified Affiliate (as such term is defined in the LLC
Agreement) if the transferee thereof, effective upon completion of, and as a
condition to, such transfer, executes and delivers a joinder to this Agreement,
in form and substance satisfactory to the Corporation, and a joinder to the
Stock Purchase Agreement, in form and substance satisfactory to the Corporation
and the other Airlines, in each case, pursuant to which such transferee assumes
all of rights and obligations of such Airline under, and agrees to be bound in
all respects by, this Agreement and the Stock Purchase Agreement as if the
transferee were an original signatory hereto and thereto; PROVIDED, FURTHER,
that such transfer shall be prohibited if the Corporation reasonably determines
that such transfer is likely to adversely affect the tax treatment of the
Exchange. This SECTION 8 shall not preclude UAL Loyalty Services, UAL Corp., a
Delaware corporation ("UAL CORP."), or any of their affiliates from making any
pledge of Airline LLC Units reasonably necessary in connection with (a) any exit
financing subject to requisite approvals by the United States Bankruptcy Court
for the Northern District of Illinois or (b) UAL Loyalty Services', UAL Corp.'s
or any of their affiliates' successful emergence from Chapter 11, including, but
not limited to, a pledge given to support one or more pension funding waivers
granted by the U.S. Department of Labor or the Internal Revenue Service or to
support any non-cash contributions in lieu of pension funding that may be
permitted by the Department of Labor, Internal Revenue Service or Pension
Benefit Guaranty Corporation; PROVIDED, that the instrument establishing such
pledge shall provide that (i) the pledgee acknowledges the obligations of the
pledgor hereunder and consents to the release of any interest it may have in the
Airline LLC Units upon the Closing and (ii) if the pledgee seeks to foreclose
upon the pledge, the pledgee shall give the Company notice prior to doing so
and, as a condition to such foreclosure, shall execute and deliver a joinder to
this Agreement, in form and substance satisfactory to the Corporation, and a
joinder to the Stock Purchase Agreement, in form and substance satisfactory to
the Corporation and the other Airlines, in each case, pursuant to which such
pledgee assumes all rights and obligations of the pledgor under, and agrees to
be bound in all respects by, this Agreement and the Stock Purchase Agreement as
if the pledgor were an original signatory hereto. The parties acknowledge and
agree that UAL Loyalty Services has
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pledged the Airline LLC Units owned by it to support the guaranty of
Debtor-in-Possession financing facilities of UAL Corp. and that such existing
pledge does not constitute a violation of this SECTION 8.
9. TAX TREATMENT OF THE EXCHANGE. The Corporation, the Operating Company
and the Airlines have structured the Exchange as a taxable exchange of the
Airline LLC Interests for the Exchange Shares for Tax purposes. The Operating
Company will timely file the Section 754 Election following the Exchange. The
Exchange is not intended to qualify as a non-taxable exchange pursuant to
Section 351 of the Code.
10. LEGENDS. The certificates evidencing the Exchange Shares (other than
the Class A Common Stock to be registered and sold in the Public Offering) will
be stamped or otherwise imprinted with a legend substantially in the following
form (unless no longer required in the opinion of counsel for the Corporation):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS
IN COMPLIANCE THEREWITH.
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
OF SUCH PREFERENCES AND/OR RIGHTS.
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO AN AGREEMENT BY AND AMONG
THE CORPORATION AND CERTAIN STOCKHOLDERS OF THE CORPORATION (A COPY OF
WHICH MAY BE OBTAINED FROM THE CORPORATION), AND BY ACCEPTING ANY
INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE
DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF
SAID AGREEMENT.
11. DEFINED TERMS. As used in this Agreement, capitalized terms used but
not defined shall have the following meanings:
"CODE" means the United States Internal Revenue Code of 1986, as
amended.
"SECTION 754 ELECTION" shall mean an election made by the Operating
Company pursuant to Section 754 of the Code with respect to the portion of its
assets represented by the Airline LLC Units transferred to the Corporation in
the Exchange.
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"TAX" means any charges, fees, levies, imposts, duties, or other
assessments of a similar nature, including income, alternative or add-on
minimum, gross receipts, profits, lease, service, service use, wage, wage
withholding, employment, workers compensation, business occupation, occupation,
premiums, environmental, estimated, excise, employment, sales, use, transfer,
license, payroll, franchise, severance, stamp, occupation, windfall profits,
withholding, social security, unemployment, disability, ad valorem, highway use,
commercial rent, capital stock, paid up capital, recording, registration,
property, real property gains, value added, business license, custom duties, or
other tax or governmental fee of any kind whatsoever, imposed or required to be
withheld by any Tax authority including any interest, or penalties applicable or
related thereto.
12. MISCELLANEOUS.
(a) GOVERNING LAW; JURISDICTION. This Agreement and the rights and
obligations of the parties hereto shall be interpreted and enforced in
accordance with and governed by the laws of the State of Delaware applicable to
agreements made and to be performed wholly within that jurisdiction. In
addition, each of the parties hereto (i) irrevocably consents to submit itself
to the exclusive jurisdiction of any Federal court located in the District of
Delaware or any state court located in the State of Delaware in the event any
dispute arises out of this Agreement, (ii) agrees that it will not bring any
action relating to this Agreement in any court other than any Federal court
sitting in the District of Delaware or any state court sitting in the State of
Delaware and (iii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
or to assert any rights it may have to transfer or change the venue of any
action relating to this Agreement brought in accordance with this SECTION 12(a).
(b) SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any of the
parties hereto and the closing of the transactions contemplated hereby.
(c) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
(d) ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
documents to be delivered pursuant hereto at the Closing constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
- 10 -
(f) SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
(g) TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
(h) BENEFITS OF AGREEMENT. Nothing in this Agreement, express or
implied, shall give to any person, other than the parties hereto and their
successors hereunder any benefit or any legal or equitable right, remedy or
claim under this Agreement. Notwithstanding the forgoing, Xxxxxx & Xxxxxxx LLP
shall be entitled to rely on the representations and warranties of the Airlines
set forth in SECTION 4 of this Agreement in connection with the opinion to be
issued to the Corporation related to the Tax treatment of the Exchange.
(i) NOTICES. Any notice pursuant to this Agreement shall be in
writing and shall be made in accordance with SECTION 10.2 of the LLC Agreement,
as the same has been and may be amended from time to time.
13. UAL LOYALTY TRANSFER. It is acknowledged and agreed that, prior to the
Closing, UAL Loyalty Services shall transfer by dividend the Airline LLC Units
owned by it to UAL Corp., which shall transfer by a contribution to capital such
Airline LLC Units to United Air Lines, Inc., a Delaware corporation ("UNITED").
Effective upon completion of, and as a condition to, such transfers, United
shall execute and deliver a Joinder to this Agreement in the form attached as
EXHIBIT D hereto (the "JOINDER"), pursuant to which United shall assume all of
rights and obligations of UAL Loyalty Services under, and agree to be bound in
all respects by, this Agreement as if the undersigned were an original signatory
hereto. Upon execution and delivery of the Joinder, all references herein to,
representations or warranties of, or covenants to be performed by UAL Loyalty
Services shall be deemed to be references to, representations and warranties of,
and covenants to be performed by United.
[SIGNATURE PAGE FOLLOWS]
- 11 -
IN WITNESS WHEREOF, the parties have duly executed this Exchange Agreement
as of the date first written above.
ORBITZ, INC. ORBITZ, LLC
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx X. Xxxx
-------------------------- --------------------------
Name: Xxxx X. Xxxx Name: Xxxx X. Xxxx
Title: Chief Financial Officer Title: Chief Financial Officer
AMERICAN AIRLINES, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx 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 X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
NORTHWEST AIRLINES, INC.
By: /s/ J. Xxxxxxx Xxxxxxx
--------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: EVP Marketing and
Distibution
UAL LOYALTY SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and General
Counsel
[SIGNATURE PAGE TO EXCHANGE AGREEMENT]
EXHIBIT A
AIRLINE LLC UNITS
AIRLINE CLASS A UNITS CLASS B UNITS TOTAL
------- ------------- ------------- -----
American Airlines, Inc. 9,387,615 159 9,387,774
Continental Airlines, Inc. 4,948,572 84 4,948,656
Omicron Reservations
Management, Inc. 6,566,253 111 6,566,364
Northwest Airlines, Inc. 5,587,099 95 5,587,194
UAL Loyalty Services, Inc. 9,387,615 159 9,387,774
TOTAL: 35,877,154 608 35,877,762
EXHIBIT B
PREFERRED STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT
by and among
AMERICAN AIRLINES, INC.,
CONTINENTAL AIRLINES, INC.,
OMICRON RESERVATIONS MANAGEMENT, INC.,
NORTHWEST AIRLINES, INC.,
UAL LOYALTY SERVICES, INC.
AND
[INVESTOR]
DATED AS OF ___________, 2003
TABLE OF CONTENTS
PAGE
----
1. Purchase and Sale of the Shares.............................................................................2
1.01 Purchase of the Shares from the Stockholders...........................................................2
1.02 Purchase Price for the Shares..........................................................................2
1.03 Closing................................................................................................2
2. Representations and Warranties of the Stockholders..........................................................2
2.01 Organization; Good Standing; Qualification.............................................................2
2.02 Corporate Power; Authorization.........................................................................2
2.03 Consents...............................................................................................3
2.04 Ownership of Stockholder LLC Units.....................................................................3
2.05 Ownership of Shares....................................................................................3
3. Representations and Warranties of the Buyer.................................................................3
3.01 Organization; Good Standing; Qualification.............................................................3
3.02 Corporate Power; Authorization.........................................................................3
3.03 Consents...............................................................................................4
3.04 Investment Purpose.....................................................................................4
3.05 Investor Status........................................................................................4
3.06 Reliance on Exemptions.................................................................................4
3.07 Receipt of Information.................................................................................4
3.08 Suitability and Sophistication.........................................................................4
3.09 Governmental Review....................................................................................5
3.10 Transfer or Resale.....................................................................................5
3.11 Legends................................................................................................5
3.12 Residency..............................................................................................6
4. Covenants of the Buyer......................................................................................6
4.01 Purchase of Class A Common Stock.......................................................................6
4.02 Lock-Up Agreement; Certain Other Covenants.............................................................6
5. Conditions to Obligations of the Buyer......................................................................6
5.01 Representations and Warranties of the Stockholders.....................................................6
5.02 Performance by the Stockholders........................................................................7
5.03 Qualifications.........................................................................................7
i
TABLE OF CONTENTS
(continued)
PAGE
----
5.04 Corporate Proceedings..................................................................................7
5.05 Adverse Proceedings....................................................................................7
6. Conditions to Obligations of the Stockholders...............................................................7
6.01 Representations and Warranties of the Buyer............................................................7
6.02 Performance by the Buyer...............................................................................7
6.03 Qualifications.........................................................................................7
6.04 Corporate Proceedings..................................................................................7
6.05 Adverse Proceedings....................................................................................7
6.06 Exchange of LLC Units..................................................................................8
6.07 Purchase Price.........................................................................................8
7. Termination.................................................................................................8
8. Miscellaneous...............................................................................................8
8.01 Entire Agreement.......................................................................................8
8.02 Survival...............................................................................................8
8.03 Successors and Assigns.................................................................................8
8.04 Specific Performance...................................................................................9
8.05 Governing Law..........................................................................................9
8.06 Counterparts...........................................................................................9
8.07 Titles and Subtitles...................................................................................9
8.08 Notices................................................................................................9
8.09 Finder's Fees..........................................................................................9
8.10 Expenses..............................................................................................10
8.11 Attorneys' Fees.......................................................................................10
8.12 Amendments and Waivers................................................................................10
8.13 Disclosures...........................................................................................10
8.14 Severability..........................................................................................10
8.15 Benefits of Agreement.................................................................................10
Schedule I Selling Stockholders
ii
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of this 25th
day of November, 2003 by and among 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"), UAL
Loyalty Services, Inc., a Delaware corporation ("UAL Loyalty Services" and,
together with American, Continental, Delta and Northwest, the "Stockholders"),
and [ ] (the "Buyer").
WHEREAS, the Stockholders hold Class A LLC Units and Class B LLC Units
(collectively, the "LLC Units") in Orbitz, LLC, a Delaware limited liability
company (the "Operating Company");
WHEREAS, Orbitz, Inc., a Delaware corporation (the "Company"), holds Class
C LLC Units in the Operating Company;
WHEREAS, the Company is contemplating the offer and sale of its Class A
common stock, par value $0.001 per share (the "Class A Common Stock"), to the
public in an underwritten initial public offering (the "IPO") pursuant to the
Company's Registration Statement on Form S-1, as amended (Registration No.
333-88646) (the "Registration Statement");
WHEREAS, in connection with the IPO, the Stockholders will exchange (the
"Exchange") their LLC Units for shares of Class A Common Stock, Class B common
stock, par value $0.001 per share (the "Class B Common Stock"), of the Company
and Series A Non-Voting Convertible Preferred Stock, par value $0.001 per share,
having the rights, preferences and designations set forth in the form of
Certificate of Designations, Preferences and Rights attached hereto as EXHIBIT A
(the "Preferred Stock"), of the Company pursuant to an
Exchange Agreement, dated
as of November 25, 2003, by and among the Company, the Operating Company and the
Stockholders (the "
Exchange Agreement");
WHEREAS, upon consummation of the Exchange, each of the Stockholders will
own its Pro Rata Percentage of the whole number of shares (collectively, the
"Shares") of Preferred Stock determined by dividing $10,000,000 by the public
offering price of one share of Class A Common Stock in the IPO. Each
Stockholder's "Pro Rata Percentage" shall be the percentage set forth opposite
such Stockholder's name on SCHEDULE I attached hereto; and
WHEREAS, the Buyer desires to purchase, and the Stockholders desire to
sell, the Shares for the aggregate consideration set forth below, subject to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
1.01 PURCHASE OF THE SHARES FROM THE STOCKHOLDERS. Subject to and upon
the terms and conditions of this Agreement, at the closing of the transactions
contemplated by this Agreement (the "Closing"), each Stockholder shall sell,
transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase,
acquire and accept from each Stockholder, all the Shares owned by such
Stockholder. At the Closing, upon receipt of the Purchase Price (as defined
below), each Stockholder shall deliver to the Buyer certificates evidencing the
Shares owned by such Stockholder duly endorsed in blank or with stock powers
duly executed by such Stockholder.
1.02 PURCHASE PRICE FOR THE SHARES.
(a) The aggregate purchase price to be paid by the Buyer for
the Shares shall be $10,000,000 in cash (the "Purchase Price"). The Purchase
Price shall be payable in the manner described in paragraph (b) of this Section
1.02.
(b) At the Closing, the Buyer shall deliver to each
Stockholder its Pro Rata Percentage of the Purchase Price, by wire transfer of
immediately available funds to the bank accounts designated by the Stockholders.
1.03 CLOSING. The Closing shall take place at the offices of Xxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
immediately following the consummation of the Exchange (such time and date, the
"Closing Date").
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS.
As of the date of this Agreement and as of the Closing Date, each
Stockholder, severally and not jointly, represents and warrants to the Buyer as
follows:
2.01 ORGANIZATION; GOOD STANDING; QUALIFICATION. Such Stockholder is a
corporation duly organized and validly existing under the laws of the state of
its incorporation and is in good standing under such laws. Such Stockholder has
the requisite corporate power and authority to own and operate its properties
and assets, and to carry on its business as presently conducted. Such
Stockholder is in good standing and qualified to do business in every
jurisdiction where the failure to so qualify would have a material adverse
effect on its ability to enter into this Agreement or to consummate the
transactions contemplated hereby.
2.02 CORPORATE POWER; AUTHORIZATION. Such Stockholder has all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery
and performance by such Stockholder of this Agreement and the transactions
contemplated hereby have been duly and validly authorized by such Stockholder.
No other corporate act or proceeding on the part of such Stockholder, its board
of directors or its stockholders is necessary to authorize the execution,
delivery or performance by such Stockholder of this Agreement or to consummate
the transactions contemplated hereby. This Agreement constitutes a valid and
binding obligation of such Stockholder, enforceable against it in accordance
with its terms, except as limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general
2
application affecting enforcement of creditors' rights generally and (ii) laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies.
2.03 CONSENTS. No consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority or other
third party on the part of such Stockholder is required in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby, except such filings or approvals as have been or will be
made or obtained prior to the Closing or such post-closing filings as may be
required under applicable federal or state securities laws, which will be timely
filed within the applicable periods therefor.
2.04 OWNERSHIP OF STOCKHOLDER LLC UNITS. Except as set forth on
SCHEDULE I attached hereto, as of the date of this Agreement, such Stockholder
has, and at the time of the Exchange will have, good and valid title to all
Stockholder LLC Units set forth opposite such Stockholder's name on SCHEDULE I
attached hereto, free and clear of all liens, charges, encumbrances or other
security interests or claims of right to title by any third party of any kind
whatsoever.
2.05 OWNERSHIP OF SHARES. Except as set forth on SCHEDULE I attached
hereto, as of the Closing Date, such Stockholder will have good and valid title
to the Shares that are to be sold to the Buyer by such Stockholder pursuant to
the terms of this Agreement, free and clear of all liens, charges, encumbrances
or other security interests or claims of right to title by any third party of
any kind whatsoever.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
As of the date of this Agreement and as of the Closing Date, the Buyer
represents and warrants to each Stockholder as follows:
3.01 ORGANIZATION; GOOD STANDING; QUALIFICATION. The Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of the State of _________. The Buyer has the requisite corporate power
and authority to own and operate its properties and assets, and to carry on
its business as presently conducted. The Buyer is in good standing and
qualified to do business in every jurisdiction where the failure to so
qualify would have a material adverse effect on its ability to enter into
this Agreement or to consummate the transactions contemplated hereby.
3.02 CORPORATE POWER; AUTHORIZATION. The Buyer has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by the Buyer of this Agreement and the transactions contemplated
hereby have been duly and validly authorized by the Buyer. No other corporate
act or proceeding on the part of the Buyer, its board of directors or its
stockholders is necessary to authorize the execution, delivery or performance by
the Buyer of this Agreement or to consummate the transaction contemplated
hereby. This Agreement constitutes a valid and binding obligation of the Buyer,
enforceable against it in accordance with its terms, except as limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors' rights generally and
3
(ii) laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
3.03 CONSENTS. No consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority or other
third party on the part of the Buyer is required in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
3.04 INVESTMENT PURPOSE. The Buyer is acquiring the Shares from each
Stockholder for its own account for investment and not with a view to, or for
sale in connection with, any distribution thereof. The Buyer understands that
the Buyer must bear the economic risk of this investment indefinitely, unless
the Shares are registered pursuant to the Securities Act of 1933 (the
"Securities Act") and any other applicable securities or blue sky laws or an
exemption from such registration is available.
3.05 INVESTOR STATUS. (a) The Buyer is (A) an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act and (B) a "qualified institutional buyer" as that term is defined
in Rule 144A promulgated under the Securities Act.
(b) The Buyer is not an "Affiliate" (as that term is defined
in Rule 405 of the Securities Act) of the Company, the Operating Company, any of
the Stockholders or any of the underwriters of the IPO (the "Underwriters") and
does not have any ownership interest in, and is not otherwise related to, any of
the foregoing persons or any of their respective Affiliates (except in
connection with acquisitions of up to 1% of the (i) outstanding publicly-traded
equity securities or (ii) all outstanding series of debt securities, in each
case, of any of the Stockholders in connection with ordinary course trading or
investment activities).
3.06 RELIANCE ON EXEMPTIONS. The Buyer understands that the Shares are
being offered and sold to the Buyer in reliance upon specific exemptions from
the registration requirements of United States federal and state securities laws
and that each Stockholder is relying upon the truth and accuracy of, and the
Buyer's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Buyer set forth herein for tax
planning purposes and to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Shares.
3.07 RECEIPT OF INFORMATION. The Buyer has received and been given an
opportunity to review the Registration Statement, as amended through the date
hereof, and the Buyer believes it has received all other information the Buyer
considers necessary or appropriate for deciding whether to purchase the Shares.
The Buyer further represents that it has had an opportunity to ask questions of,
and receive answers from, the Company regarding the business, properties,
prospects and financial condition of the Company and to obtain additional
information the Buyer deemed necessary to verify the accuracy of any information
furnished to the Buyer or to which the Buyer had access.
3.08 SUITABILITY AND SOPHISTICATION. (a) The Buyer has such knowledge
and experience in financial and business matters that it is capable of
independently evaluating the risks and
4
merits of purchasing the Shares; (b) the Buyer has independently evaluated the
risks and merits of purchasing the Shares; and (c) the Buyer has sufficient
funds to bear the loss of its entire investment in the Shares.
3.09 GOVERNMENTAL REVIEW. The Buyer understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Shares.
3.10 TRANSFER OR RESALE. The Buyer understands that (a) the Shares
have not been and are not being registered under the Securities Act or any state
securities laws, and may not be transferred unless (i) subsequently registered
thereunder, (ii) the Buyer shall have delivered to the Company an opinion of
counsel to the Buyer (which opinion shall be reasonably satisfactory in form and
substance) stating that the Shares to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration or (iii) sold under
Rule 144; and (b) none of the Company, the Stockholders or any other person is
under any obligation to register such Shares under the Securities Act or any
other securities laws or to comply with the terms and conditions of any
exemption thereunder.
3.11 LEGENDS. The Buyer understands that the Shares and, until such
time as the Shares have been registered under the Securities Act or otherwise
may be sold by the Buyer under Rule 144, the certificates for the Shares will
bear a restrictive legend in substantially the following form, in addition to
any legend imposed or required by the Company's organizational documents or
other applicable securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT
OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE COMPANY IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK. THE
COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS THE
POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any security upon which it is
stamped, if, unless otherwise required by state securities laws, (a) the sale of
such security is registered under the Securities Act, (b) such holder provides
the Company with an opinion of counsel reasonably satisfactory in form,
substance and scope stating that a public sale or transfer of such security may
be made without registration under the Securities Act or (c) such holder
provides the Company with reasonable assurances that such security can be sold
under Rule 144.
5
3.12 RESIDENCY. The Buyer is a resident of the State of _________.
4. COVENANTS OF THE BUYER.
4.01 PURCHASE OF CLASS A COMMON STOCK. None of the Buyer or any of its
Affiliates will purchase or otherwise acquire any shares of the capital stock of
the Company (including, without limitation, the Class A Common Stock) or any
interest therein, concurrently with or in the IPO from the Company, the
Stockholders, the Underwriters or any Affiliate of any such persons, other than
the purchase of the Shares pursuant to this Agreement. Except as set forth in
the preceding sentence, neither Buyer nor any of its Affiliates has any plans or
commitments to acquire any such shares of capital stock.
4.02 LOCK-UP AGREEMENT; CERTAIN OTHER COVENANTS. (a) During the period
beginning from the Closing Date and continuing to and including the date 21 days
after the Closing Date, the Buyer will not offer, sell, contract to sell,
pledge, grant any option to purchase, make any short sale or otherwise dispose
of any shares of Class A Common Stock or other securities of the Company that
are substantially similar to the Class A Common Stock, or any securities that
are convertible into or exchangeable for, or that represent the right to
receive, shares of Class A Common Stock or any such substantially similar
securities, without the prior written consent of the Company and the
Stockholders. This restriction is expressly agreed to preclude the Buyer from
engaging in any hedging or other transaction that is designed to or that
reasonably could be expected to lead to or result in a sale or disposition of
shares of Class A Common Stock or such other securities even if such Class A
Common Stock or other securities would be disposed of by someone other than the
Buyer. Such prohibited hedging or other transactions would include, without
limitation, any short sale or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with respect to any
shares of Class A Common Stock or such other securities or with respect to any
security that includes, relates to or derives any significant part of its value
from such Class A Common Stock or other securities.
(b) The Buyer agrees not to, and will cause its Affiliates
not to, (i) utilize the services of any of the Underwriters or their
Affiliates to execute transactions as broker or principal (other than as
market-maker if executed through a different broker) in connection with the
establishment of any hedged position following the 21-day lock-up set forth
in Section 4.02(a) or (ii) permit any person, in establishing such hedged
position for the account of the Buyer following the 21-day lock-up set forth
in Section 4.02(a), to borrow any of the capital stock of the Company from
(A) the Underwriters, if the distribution of shares of Class A Common Stock
in the IPO by the Underwriters to unaffiliated third parties has not been
completed, or (B) the Company, the Stockholders or any Affiliate thereof.
5. CONDITIONS TO OBLIGATIONS OF THE BUYER.
The obligations of the Buyer under this Agreement are subject to the
fulfillment, at the Closing Date, of the following conditions precedent, each of
which may be waived in writing in the sole discretion of the Buyer:
5.01 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The
representations and warranties of the Stockholders contained in Section 2 of
this Agreement shall be true and correct on and as of the Closing Date with the
same effect as though such representations and warranties had been made on and
as of the Closing Date, except for representations and warranties that
6
expressly speak as of or with respect to a specific date or time other than the
Closing Date, which representations and warranties need only be true and correct
as of such specified date or time.
5.02 PERFORMANCE BY THE STOCKHOLDERS. The Stockholders shall have
performed and complied with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by them on
or before the Closing.
5.03 QUALIFICATIONS. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body that are required in connection
with the sale of the Shares pursuant to this Agreement shall be duly obtained
and effective as of the Closing.
5.04 CORPORATE PROCEEDINGS. All corporate and other proceedings
required to be taken on the part of each of the Stockholders to authorize or
carry out this Agreement shall have been taken.
5.05 ADVERSE PROCEEDINGS. No action or proceeding by or before any
court or other governmental body shall have been instituted or threatened by any
governmental body or person whatsoever that shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement or that could
reasonably be expected to adversely affect the ability of the Buyer to acquire
the Shares.
6. CONDITIONS TO OBLIGATIONS OF THE STOCKHOLDERS.
The obligations of the Stockholders under this Agreement are subject to the
fulfillment, at the Closing Date, of the following conditions precedent, each of
which may be waived in writing in the sole discretion of all of the
Stockholders:
6.01 REPRESENTATIONS AND WARRANTIES OF THE BUYER. The representations
and warranties of the Buyer contained in Section 3 of this Agreement shall be
true and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of the Closing Date,
except for representations and warranties that expressly speak as of or with
respect to a specific date or time other than the Closing Date, which
representations and warranties need only be true and correct as of such
specified date or time.
6.02 PERFORMANCE BY THE BUYER. The Buyer shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
6.03 QUALIFICATIONS. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body that are required in connection
with the sale of the Shares pursuant to this Agreement shall be duly obtained
and effective as of the Closing.
6.04 CORPORATE PROCEEDINGS. All corporate and other proceedings
required to be taken on the part of the Buyer to authorize or carry out this
Agreement shall have been taken.
6.05 ADVERSE PROCEEDINGS. No action or proceeding by or before any
court or other governmental body shall have been instituted or threatened by any
governmental body or person whatsoever that shall seek to restrain, prohibit or
invalidate the transactions contemplated by this
7
Agreement or that could reasonably be expected to adversely affect the ability
of the Stockholders to transfer the Shares.
6.06 EXCHANGE OF LLC UNITS. The Exchange shall have been consummated
pursuant to the terms of the
Exchange Agreement.
6.07 PURCHASE PRICE. The Buyer shall have delivered to the
Stockholders the full purchase price for the Shares as contemplated by Section
1.02 of this Agreement.
7. TERMINATION.
If the Exchange has not been consummated on or before February 1, 2004 or
if the
Exchange Agreement is terminated for any reason, this Agreement shall
become null and void and be of no further force or effect whatsoever and none of
the Stockholders or the Buyer shall have any further obligations hereunder or
with respect hereto.
8. MISCELLANEOUS.
8.01 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein constitute the entire agreement among the parties, and no party shall
have any obligations to any other party whatsoever by virtue of any warranties,
representations or covenants contained herein, except as specifically set forth
herein or therein.
8.02 SURVIVAL. The warranties, representations and covenants of the
Stockholders and the Buyer contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the Closing.
8.03 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Buyer, on the one hand, and the Stockholders, on the
other hand, may not assign their respective obligations hereunder without the
prior written consent of the Buyer or the Stockholders, as the case may be;
PROVIDED, HOWEVER, that it is acknowledged and agreed that, prior to the Closing
Date, UAL Loyalty Services may transfer by dividend all of its interests in the
Company and the Operating Company, including the LLC Units and Class B Common
Stock owned by it, to UAL Corp., a Delaware corporation, which shall transfer,
by a contribution to capital, such interests, including such LLC Units and Class
B Common Stock, to United Air Lines, Inc., a Delaware corporation ("United");
and effective upon completion of such transfers, United shall execute and
deliver a joinder to this Agreement in a form mutually satisfactory to United
and each of the other Stockholders, pursuant to which United shall assume all of
rights and obligations of UAL Loyalty Services under, and agree to be bound in
all respects by, this Agreement as if United were an original signatory hereto.
Upon execution and delivery of such joinder, all references herein to,
representations or warranties of, or obligations to be performed by UAL Loyalty
Services shall be deemed to be references to, representations and warranties of
and obligations to be performed by United, and United shall be one of the
Stockholders hereunder. Any purported assignment in contravention of this
provision shall be void and no assignment shall release the Buyer or the
Stockholders from any obligation or liability under this Agreement.
8
8.04 SPECIFIC PERFORMANCE. The Buyer agrees that irreparable damage
would occur in the event any provision of this Agreement to be performed by the
Buyer was not performed in accordance with the terms hereof and that the
Stockholders shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
8.05 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to the
conflicts of laws principles thereof. All parties hereto hereby submit to the
exclusive jurisdiction of the federal or state courts in the State of Delaware
with respect to any matters arising out of this Agreement or related thereto.
8.06 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.07 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.08 NOTICES. All notices or other communications required or
permitted to be made under this Agreement shall be in writing and shall be
deemed to have been duly given (i) when received if (A) personally delivered or
(B) transmitted by telecopy; (ii) on the delivery date specified on the shipping
manifest if sent by a recognized overnight delivery service (e.g., Federal
Express); or (iii) upon receipt, if sent by certified or registered mail, return
receipt requested. In each case notice shall be sent to:
To the Buyer:
To each Stockholder:
At the address set forth below its name on the signature
pages hereof.
or such other address as any party most recently may have designated in writing
to the other parties in accordance with this Section 8.08.
8.09 FINDER'S FEES. (a) Each of the parties represents that it neither
is nor will be obligated for any finder's fee or commission in connection with
the consummation of the transactions contemplated by this Agreement.
9
(b) The Buyer agrees to indemnify and to hold harmless each of
the Stockholders from and against any liability for any commission or
compensation in the nature of a finder's fee (and the cost and expenses of
defending against such liability or asserted liability) for which the Buyer or
any of its officers, partners, employees or representatives is responsible.
8.10 EXPENSES. Except as otherwise expressly provided herein, the
Buyer, on the one hand, and the Stockholders, on the other hand, will pay all
fees and expenses (including, without limitation, legal fees and expenses)
incurred by them in connection with the transactions contemplated hereby.
8.11 ATTORNEYS' FEES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which such party may be entitled.
8.12 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Buyer and all of the Stockholders. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each
holder of any securities purchased under this Agreement at the time outstanding,
each future holder of all such securities and the Stockholders.
8.13 DISCLOSURES. Except as required by law, none of the parties,
without the prior written consent of the other parties, will make any public
announcement or other disclosure of the transactions contemplated hereto;
PROVIDED, HOWEVER, the parties understand and acknowledge that this Agreement
(including the exhibits and schedules hereto) will be filed as an exhibit to the
Registration Statement and consent to such filing.
8.14 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
8.15 BENEFITS OF AGREEMENT. Nothing in this Agreement, express or
implied, shall give to any person, other than the parties hereto and their
successors hereunder any benefit or any legal or equitable right, remedy or
claim under this Agreement. Notwithstanding the foregoing, (a) Xxxxxx & Xxxxxxx
LLP shall be entitled to rely on the representations and warranties of the Buyer
set forth in this Agreement in connection with the opinion to be issued to the
Company related to the tax treatment of the Exchange and (b) the Company and the
Underwriters are express third-party beneficiaries of the lock-up agreement of
the Buyer set forth in Section 4.02 hereof.
[Signature pages follow]
10
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
STOCKHOLDERS:
AMERICAN AIRLINES, INC.
By:
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President - Corporate Development and
Treasurer
Address: American Airlines, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx
Mail Drop 5566
Xxxx Xxxxx, Xxxxx 00000
Attention: Vice President - Corporate
Development and Treasurer
Facsimile: (000) 000-0000
[Signature Page to Stock Purchase Agreement]
CONTINENTAL AIRLINES, INC.
By:
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Address: Continental Airlines, Inc.
0000 Xxxxx Xxxxxx - XXXXX
Xxxxxxx, XX 00000
Attention: Executive Vice President
Facsimile: 000-000-0000
[Signature Page to Stock Purchase Agreement]
OMICRON RESERVATIONS
MANAGEMENT, INC.
By:
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
Address: Omicron Reservations Management, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile: 000-000-0000
[Signature Page to Stock Purchase Agreement]
NORTHWEST AIRLINES, INC.
By:
---------------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: EVP Marketing and Distribution
Address: Northwest Airlines, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, XX 00000
Attention: Xx Xxxxx, Vice President-
Distribution Planning
Facsimile: 000-000-0000
[Signature Page to Stock Purchase Agreement]
UAL LOYALTY SERVICES, INC.
By:
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and General Counsel
Address: UAL Loyalty Services, Inc.
c/o United Air Lines, Inc.
World Headquarters
X.X. Xxx 00000
Xxxxxxx, XX 00000
Attention: Senior Vice-President, Secretary and
General Counsel
Facsimile: 000-000-0000
and
Attention: Managing Director, UAL Loyalty
Services, Inc.
Facsimile: 000-000-0000
[Signature Page to Stock Purchase Agreement]
BUYER:
By:
---------------------------------------------
Name:
Title:
[Signature Page to Stock Purchase Agreement]
EXHIBIT A
[FORM OF CERTIFICATE OF DESIGNATIONS -- ATTACHED]
SCHEDULE I
SELLING STOCKHOLDERS
NUMBER OF
AIRLINE STOCKHOLDER LLC UNITS PERCENTAGE
--------------------------------------------------------------------------------------------------------
American Airlines, Inc. 9,387,774 26.17%
Continental Airlines, Inc. 4,948,656 13.79
Omicron Reservations Management, Inc. 6,566,364 18.30
Northwest Airlines, Inc. 5,587,194 15.57
UAL Loyalty Services, Inc. 9,387,774 26.17
TOTAL: 35,877,762 100.0%
EXHIBIT C
CERTIFICATE OF DESIGNATIONS OF NON-VOTING CONVERTIBLE PREFERRED STOCK
[SEE ATTACHED]
EXHIBIT D
[FORM OF] JOINDER TO
EXCHANGE AGREEMENT
The undersigned, as the owner of 9,387,615 Class A Interests of Orbitz,
LLC, a Delaware limited liability company (the "COMPANY"), and 159 Class B
Interests of the Company, hereby joins in the execution and delivery of that
certain
Exchange Agreement, dated as of _________, 2003 (the "EXCHANGE
AGREEMENT"), and assumes all of the rights and obligations of UAL Loyalty
Services, Inc., a Delaware corporation, thereunder, and agrees to be bound in
all respects by, the Exchange Agreement as if the undersigned were an original
signatory thereto.
Dated: _________ ___, 2003
UNITED AIR LINES, INC.
By:
-----------------------------
Name:
Its:
SCHEDULE 3(C)
CAP TABLE
ORBITZ, INC. SHARES
------------------------------------------------------------------------------------------
CLASS B COMMON STOCK
--------------------
OWNERSHIP
HOLDER CLASS A COMMON STOCK SHARES SERIES CLASS C COMMON STOCK TOTAL %
------ -------------------- ------ ------ -------------------- ----- ---------
AMERICAN AIRLINES, INC. -- 1,787.000 B-AA -- 1,787.000 0.027%
CONTINENTAL AIRLINES, INC. -- 942.000 B-CO -- 942.000 0.014%
OMICRON RESERVATIONS MANAGEMENT, INC. -- 1,250.000 B-DL -- 1,250.000 0.019%
NORTHWEST AIRLINES, INC. -- 1,063.000 B-NW -- 1,063.000 0.016%
UAL LOYALTY SERVICES, INC. -- 1,787.000 B-UA -- 1,787.000 0.027%
XXXXXXX XXXX -- -- -- 150,000.000 150,000.000 2.300%
XXXX XXXX -- -- -- 27,913.000 27,913.000 0.428%
XXXX XXXXXXX (Xxxxx) -- -- -- 14,368.000 14,368.000 0.220%
XXXX XXXXXXX (Bonus) -- -- -- 9,052.000 9,052.000 0.139%
XXXXX XXXXXX -- -- -- 2,968.000 2,968.000 0.046%
XXXXX XXXXXXX -- -- -- 54,080.000 54,080.000 0.829%
XXXXXXX XXXXX -- -- -- 14,077.000 14,077.000 0.216%
XXXXX XXXXX -- -- -- 33,333.000 33,333.000 0.511%
XXXX XXXXXX -- -- 33,333.000 33,333.000 0.511%
Xxxxxxxx Xxxxx Addimando -- -- 11,933.000 11,933.000 0.183%
ORBITZ, INC. SHARES
------------------------------------------------------------------------------------------
CLASS B COMMON STOCK
--------------------
OWNERSHIP
HOLDER CLASS A COMMON STOCK SHARES SERIES CLASS C COMMON STOCK TOTAL %
------ -------------------- ------ ------ -------------------- ----- ---------
Xxxxxxx Xxxxx Xxxxxxxx -- -- 6,833.000 6,833.000 0.105%
Xxxxxxx Xxxxxxx -- -- 3,083.000 3,083.000 0.047%
Xxxxxxx Xxxxxx -- -- 1,111.000 1,111.000 0.017%
Xxxx X Xxxx -- -- 2,333.000 2,333.000 0.036%
Xxxxxxxxx Xx Xxxxxx -- -- 12,804.000 12,804.000 0.196%
Xxxx De La Hoz -- -- 10,905.000 10,905.000 0.167%
Xxxxxxx Xxxxxx -- -- 666.000 666.000 0.010%
Xxxxxxx X'Xxxx -- -- 1,111.000 1,111.000 0.017%
Xxxx X. Xxxxxx -- -- 33,333.000 33,333.000 0.511%
Xxxx Xxxx -- -- 1,111.000 1,111.000 0.017%
Xxxxxxx Xxx Xxxxxxx -- -- 333.000 333.000 0.005%
Xxxxx Xxxxxxxx -- -- 12,833.000 12,833.000 0.197%
Xxxxxxxx Xxxxx -- -- 5,006.000 5,006.000 0.077%
Xxxxxx X Xxxx -- -- 4,860.000 4,860.000 0.075%
Xxxxxxx Xxxxxxx -- -- 642.000 642.000 0.010%
Xxxxx Xxx -- -- 9,000.000 9,000.000 0.138%
Xxxxx Xxx -- -- 902.000 902.000 0.014%
Xxxx X. Xxxxxx -- -- 1,293.000 1,293.000 0.020%
Xxxxxx Xxxxxxxxx -- -- 1,833.000 1,833.000 0.028%
ORBITZ, INC. SHARES
------------------------------------------------------------------------------------------
CLASS B COMMON STOCK
--------------------
OWNERSHIP
HOLDER CLASS A COMMON STOCK SHARES SERIES CLASS C COMMON STOCK TOTAL %
------ -------------------- ------ ------ -------------------- ----- ---------
Xxxxxx Xxxxxxx -- -- 451.000 451.000 0.007%
Xxx Xxxxx -- -- 1,000.000 1,000.000 0.015%
Xxxxxx Xxxxxxxxx -- -- 333.000 333.000 0.005%
Xxxx X. Xxxxxxx -- -- 868.000 868.000 0.013%
Xxxxx X. Xxxxxxx -- -- 6,666.000 6,666.000 0.102%
Xxxxxxxxxx Super -- -- 900.000 900.000 0.014%
Xxxxxxx X. Xxxxxx -- -- 1,841.000 1,841.000 0.028%
Xxxxx Xxx Xxxxxx -- -- 14,583.000 14,583.000 0.224%
WAG Group -- -- 18,055.000 18,055.000 0.277%
WAG Group -- -- 2,666.000 2,666.000 0.041%
Xxxx Xxxxx Xxxxx -- -- 4,513.000 4,513.000 0.069%
Xxxxxx Xxxxxxx -- -- 8,333.000 8,333.000 0.128%
Xxxxx XxXxxx -- -- 15,833.000 15,833.000 0.243%
Xxxxx Xxxxx -- -- 5,333.000 5,333.000 0.082%
Xxxxx Xxxxx -- -- 1,333.000 1,333.000 0.020%
Trust -- -- 66,666.000 66,666.000 1.022%
Shares reserved for issuance under
options granted -- -- 5,905,815.000 5,905,815.000 90.537%
-------------------------------------------------------------------------------------------
Totals: -- 6,829.000 6,516,238.000 6,523,067.000 100.000%
===========================================================================================
ORBITZ, LLC UNITS
-----------------------------------------------------------------------------------
HOLDER CLASS A UNITS CLASS B UNITS CLASS C UNITS TOTAL %
------ ------------- ------------- ------------- ----- ---
AMERICAN AIRLINES, INC. 9,387,615.000 159.000 -- 9,387,774.000 21.715%
CONTINENTAL AIRLINES, INC. 4,948,572.000 84.000 -- 4,948,656.000 11.447%
OMICRON RESERVATIONS MANAGEMENT, INC. 6,566,253.000 111.000 -- 6,566,364.000 15.189%
NORTHWEST AIRLINES, INC. 5,587,099.000 95.000 -- 5,587,194.000 12.924%
UAL LOYALTY SERVICES, INC. 9,387,615.000 159.000 -- 9,387,774.000 21.715%
ORBITZ, INC. -- -- 7,353,333.000 7,353,333.000 17.009%
-----------------------------------------------------------------------------------
Total: 35,877,154.000 608.000 7,353,333.000 43,231,095.000 100.000%
===================================================================================
