EXHIBIT 99.5
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
This VOTING AGREEMENT AND IRREVOCABLE PROXY (this "Agreement"), dated
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as of January 22, 2002, by and between Expedia, Inc., a Washington corporation
("Expedia") and GV Investment LLC, a Delaware limited liability company
("Stockholder").
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W I T N E S S E T H:
WHEREAS, as a condition to and contemporaneously with this Agreement,
Classic Vacation Group, Inc., a New York corporation (the "Company"), Classic
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Custom Vacations, a California corporation and a wholly owned subsidiary of the
Company ("CCV") and Expedia are entering into an Asset Purchase Agreement (the
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"Asset Purchase Agreement"), dated as of the date hereof, pursuant to which
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Expedia has agreed to acquire certain of the assets, and assume certain of the
liabilities, of CCV, all on the terms and subject to the conditions more
particularly set forth therein;
WHEREAS, as a condition to and contemporaneously with this Agreement,
the Company, Expedia, ▇▇▇▇▇▇ Equity Investors III, L.P., a Delaware limited
partnership ("▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ are entering into an Liquidation
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and Indemnification Agreement (the "Liquidation and Indemnification Agreement"),
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dated as of the date hereof, pursuant to which, among other things, after the
consummation of the transactions contemplated by the Asset Purchase Agreement,
(i) the Company shall effect a liquidating distribution to its stockholders in
accordance with the NYBCL, (ii) Expedia shall use commercially reasonable
efforts to cause ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to be available to assist the Company with
effecting such liquidating distribution, and (iii) each of the Company and
▇▇▇▇▇▇ shall indemnify and hold harmless Expedia and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for any
losses suffered by either Expedia or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in connection with the
winding up of the Company and such liquidating distribution, all on the terms
and subject to the conditions more particularly set forth therein;
WHEREAS, as of the date hereof, Stockholder beneficially owns the
number of Voting Shares (as defined herein) of the Company set forth on
Attachment A hereto (the "Owned Shares");
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WHEREAS, the Company intends to hold a special meeting of its
stockholders in March 2002 for the purposes of, among other things, having such
stockholders consider and vote on proposals to approve (i) the Asset Purchase
Agreement and the transactions contemplated thereby and (ii) the Liquidation and
Indemnification Agreement and the transactions contemplated thereby; and
WHEREAS, in connection with the Asset Purchase Agreement, Stockholder
has agreed to vote all of the Owned Shares, together with any shares of common
stock of the Company, par value, $0.01 per share ("Company Common Stock")
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acquired after the date of this Agreement, whether upon the exercise of options,
conversion of convertible securities or otherwise, and any other voting
securities of the Company (whether acquired heretofore or hereafter) that are
beneficially owned by Stockholder or over which Stockholder has, directly or
indirectly, the
right to vote (collectively, the "Voting Shares"), in favor of the approval of
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(i) the Asset Purchase Agreement and the transactions contemplated thereby and
(ii) the Liquidation and Indemnification Agreement and the transactions
contemplated thereby.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. AGREEMENT TO VOTE; IRREVOCABLE PROXY.
1.1 AGREEMENT TO VOTE. Stockholder hereby agrees that, during the time
this Agreement is in effect, at any meeting of the stockholders of the Company,
however called, or any adjournment thereof, or by written consent, Stockholder
shall be present (in person or by proxy) and vote (or cause to be voted) all of
its Voting Shares in favor of the approval of (i) the Asset Purchase Agreement
and the transactions contemplated thereby and (ii) the Liquidation and
Indemnification Agreement and the transactions contemplated thereby.
1.2 IRREVOCABLE PROXY. Solely with respect to the matters described in
Section 1.1, for so long as this Agreement has not been terminated pursuant to
its terms, Stockholder hereby irrevocably appoints Expedia as its proxy (which
proxy is irrevocable and which appointment is coupled with an interest,
including for purposes of Section 609 of the NYBCL) to vote solely on the
matters described in Section 1.1, and in accordance therewith. Stockholder
agrees to execute any further agreement or form reasonably necessary or
appropriate to confirm and effectuate the grant of the proxy contained herein.
2. TERMINATION.
2.1 TERMINATION OF THIS AGREEMENT. This Agreement shall (i) terminate
automatically on the termination of the Asset Purchase Agreement in accordance
with its terms and (ii) be deemed satisfied in full and terminated upon the
consummation of all of the transactions contemplated by the Asset Purchase
Agreement, PROVIDED, HOWEVER, that the provisions of Section 6.5 and Section 6.6
shall survive in accordance with their terms.
2.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement pursuant to Section 2.1, this Agreement shall become void and of no
effect with no liability on the part of any party hereto; PROVIDED, HOWEVER, no
such termination shall relieve any party hereto from any liability for any
breach of this Agreement occurring prior to such termination; PROVIDED FURTHER,
that Section 6.5 and Section 6.6 shall not be void and the parties shall
continue to be liable in connection therewith.
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder hereby represents
and warrants to Expedia as follows:
3.1 DUE ORGANIZATION. Stockholder is a limited liability company duly
organized and validly existing under the laws of the State of Delaware.
3.2 POWER; DUE AUTHORIZATION; BINDING AGREEMENT. Stockholder has full
legal capacity, power and authority to execute and deliver this Agreement, to
perform its
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obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Stockholder
and constitutes a valid and binding agreement of Stockholder, enforceable
against Stockholder in accordance with its terms, except that enforceability may
be subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors rights generally and to general principles of equity.
3.3 OWNERSHIP OF SHARES. On the date hereof, the Owned Shares set forth
opposite Stockholder's name on Attachment A hereto are owned of record or
beneficially by Stockholder or such entity and constitute all of the Voting
Shares owned of record or beneficially by Stockholder, free and clear of any
claims, liens, encumbrances, and security interests, including, for greater
certainty, any right in favor of a third party to exercise voting rights with
respect to such shares. As of the date hereof, Stockholder has, and as of the
date of the stockholder meeting of the Company (or action by written consent) in
connection with (i) the Asset Purchase Agreement and the transactions
contemplated thereby and (ii) the Liquidation and Indemnification Agreement and
the transactions contemplated thereby, Stockholder will have (except as
otherwise permitted by this Agreement), sole voting power and sole dispositive
power with respect to all of the Owned Shares.
3.4 NO CONFLICTS. Subject to the filings being made pursuant to Section
3.04 of the Asset Purchase Agreement and the effectiveness and/or receipt of
consents or approvals in connection with such filings, the execution and
delivery of this Agreement by Stockholder does not, and the performance of the
terms of this Agreement by Stockholder will not, (a) require Stockholder or any
of its affiliates to obtain the consent or approval of, or make any filing with
or notification to, any governmental or regulatory authority, domestic or
foreign, (b) require the consent or approval of any other person pursuant to any
material agreement, obligation or instrument binding on Stockholder or its
properties and assets, (c) conflict with or violate any organizational document
or law, rule, regulation, order, judgment or decree applicable to Stockholder or
pursuant to which any of its or its affiliates' respective properties or assets
are bound or (d) violate any other agreement to which Stockholder or any of its
affiliates is a party including, without limitation, any voting agreement,
stockholders agreement, irrevocable proxy or voting trust, except for any
consent, approval, filing or notification which has been obtained as of the date
hereof or the failure of which to obtain, make or give would not, or any
conflict or violation which would not, prevent, delay or materially adversely
affect the consummation of the transactions contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF EXPEDIA. Expedia hereby represents and
warrants to Stockholder as follows: Expedia is a corporation duly organized and
validly existing under the laws of the State of Washington. Expedia has full
corporate power and authority to execute and deliver this Agreement and the
Liquidation and Indemnification Agreement, to perform its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Liquidation and
Indemnification Agreement and the consummation by Expedia of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate action on the part of Expedia, and no other proceedings on
the part of Expedia are necessary to authorize this Agreement or the Liquidation
and Indemnification Agreement or to consummate the transactions contemplated
hereby or thereby. Each of this
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Agreement and the Liquidation and Indemnification Agreement has been duly and
validly executed and delivered by Expedia and constitutes a valid and binding
agreement of Expedia, except that enforceability may be subject to the effect of
any applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of creditors rights
generally and to general principles of equity.
5. CERTAIN COVENANTS OF STOCKHOLDER. Stockholder hereby covenants and agrees
with Expedia as follows:
5.1 PROXIES AND NON-INTERFERENCE. Except as contemplated herein,
Stockholder hereby agrees, while this Agreement is in effect, not to (a) grant
any proxies or powers of attorney, deposit any Voting Shares into a voting trust
or enter into a voting agreement with respect to any Voting Shares, other than
to controlled affiliates, (b) take any action that would cause any
representation or warranty of Stockholder contained herein to become untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing its obligations under this Agreement or (b) commit or agree to take
any of the actions prohibited by this sentence.
5.2 ADDITIONAL SHARES. Stockholder hereby agrees, while this Agreement is
in effect, to promptly notify Expedia of the number of any new Voting Shares
acquired by Stockholder, if any, after the date hereof. Any such shares shall be
subject to the terms of this Agreement.
5.3 FURTHER ASSURANCES. From time to time, at the request of Expedia or
Stockholder and without further consideration, Stockholder or Expedia,
respectively, shall execute and deliver such additional documents and take all
such further action as may be necessary or desirable to consummate and make
effective the transactions contemplated by this Agreement.
6. MISCELLANEOUS.
6.1 NON-SURVIVAL. The representations and warranties made herein shall not
survive the termination of this Agreement.
6.2 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. This Agreement shall not be assigned by operation of law or
otherwise and shall be binding upon and inure solely to the benefit of each
party hereto.
6.3 AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by each of the Stockholder and Expedia.
6.4 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received
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if so given) by hand delivery, by facsimile transmission or by mail (registered
or certified mail, postage prepaid, return receipt requested) or by any courier
service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to Stockholder:
GV Investment LLC
c/o Three Cities Research, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to Expedia:
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.5 GOVERNING LAW
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
(b) Each party hereto irrevocably submits to the jurisdiction of
any New York state court or any federal court sitting in the State of New York
in any action arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action
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may be heard and determined in such New York state or federal court. Each party
hereto hereby irrevocably waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. The parties hereto further agree, to the extent permitted by law,
that final and unappealable judgment against any of them in any action or
proceeding contemplated above shall be conclusive and may be enforced in any
other jurisdiction within or outside the United States by suit on the judgment,
a certified copy of which shall be conclusive evidence of the fact and amount of
such judgment.
(c) To the extent that any party hereto has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, each party hereto hereby irrevocably waives such immunity in respect
of its obligations with respect to this Agreement.
(d) Each party hereto waives, to the fullest extent permitted by
applicable laws, any right it may have to a trial by jury in respect of any
action, suit or proceeding arising out of or relating to this Agreement. Each
party hereto certifies that it has been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications set forth above in
this Section.
6.6 REMEDIES. Each of Stockholder and Expedia recognize and acknowledge
that a breach by it of any covenants or agreements contained in this Agreement
will cause the other party to sustain irreparable injury and damages, for which
money damages would not provide an adequate remedy, and therefore each of
Stockholder and Expedia agrees that in the event of any such breach by the
other, Stockholder or Expedia, as the case may be, shall be entitled to the
remedy of specific performance of such covenants and agreements and injunctive
and other equitable relief.
6.7 COUNTERPARTS. This Agreement may be executed by facsimile and in two
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same Agreement.
6.8 DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
6.9 SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
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SIGNATURE PAGE--VOTING AGREEMENT AND IRREVOCABLE PROXY
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EXPEDIA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
GV INVESTMENT LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
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Attachment A
386,300 shares of Company Common Stock
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