Exhibit 2.7
STOCKHOLDER AGREEMENT
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STOCKHOLDER AGREEMENT (this "Agreement"), dated September
29, 2004, by and among Cendant Corporation, a Delaware corporation ("Parent"),
▇▇▇▇▇▇▇▇▇ Acquisition Corporation, a Delaware corporation and an indirect
wholly-owned subsidiary of Parent (the "Purchaser") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
("Stockholder").
WHEREAS, Stockholder is, as of the date hereof, the record
and beneficial owner of the number of shares of Series A Common Stock, par
value $0.001 (the "Class A Common Stock" and, together with the class B common
stock par value $0.001 ("Class B Common Stock") of Orbitz Inc., a Delaware
corporation (the "Company"), the "Common Stock")), of the Company, set forth
opposite the name of Stockholder on Schedule I hereto;
WHEREAS, Parent, the Purchaser and the Company have entered
into an Agreement and Plan of Merger, dated as of the date hereof, in the form
attached hereto as Exhibit A (the "Merger Agreement"), which provides, among
other things, for the Purchaser to conduct tender offers for all of the issued
and outstanding shares of the Class A Common Stock (the "Class A Offer") and
all of the issued and outstanding shares of the Class B Common Stock (the
"Class B Offer") and the merger of the Purchaser with and into the Company
with the Company continuing as the surviving corporation (the "Merger") upon
the terms and subject to the conditions set forth in the Merger Agreement
(capitalized terms used herein without definition shall have the respective
meanings specified in the Merger Agreement);
WHEREAS, simultaneously with the execution of this
Agreement, each of American Airlines, Inc., Continental Airlines, Inc., Delta
Air Lines, Inc., Northwest Airlines, Inc. and United Air Lines, Inc.
("United") (each, an "Other Stockholder") are entering into a Stockholder
Agreement with Parent and Purchaser, dated as of the date hereof, in the forms
attached hereto as Exhibits B(aa), B(co), B(dl), B(nw) and B(ua), as
applicable (each such Stockholder Agreement, an "Other Stockholder
Agreement"); and
WHEREAS, as a condition to the willingness of Parent and the
Purchaser to enter into the Merger Agreement and as an inducement and in
consideration therefor, Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein and in the Merger Agreement,
and intending to be legally bound hereby, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the
Stockholder. Stockholder hereby represents and warrants to Parent and the
Purchaser as follows:
(a) Stockholder (i) is the record and beneficial owner
of the shares of Common Stock (collectively with any shares of Common Stock
which such Stockholder may acquire at any time in the future during the term
of this Agreement are collectively referred to herein as the "Shares") set
forth opposite Stockholder's name on Schedule I to this Agreement and (ii)
neither holds nor has any beneficial ownership interest in any option
(including any granted pursuant to a Company Option Plan), or warrant to
acquire shares of Common Stock or other right or security convertible into or
exercisable or exchangeable for shares of Common Stock.
(b) Stockholder has the legal capacity to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
(c) This Agreement has been validly executed and
delivered by Stockholder and constitutes the valid and binding obligation of
Stockholder, enforceable against such Stockholder 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) that the availability of
the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be brought.
(d) Neither the execution and delivery of this
Agreement nor the consummation by Stockholder of the transactions contemplated
hereby will result in a violation of, or a default under, or conflict with,
any contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which Stockholder is a party or by which
Stockholder or Stockholder's assets are bound. The consummation by Stockholder
of the transactions contemplated hereby will not (i) violate any provision of
any judgment, order, decree applicable to Stockholder or (ii) require any
consent, approval, or notice under any statute, law, rule or regulation
applicable to Stockholder other than (x) as required under the Exchange Act
and the rules and regulations promulgated thereunder and (y) where the failure
to obtain such consents or approvals or to make such notifications, would not,
individually or in the aggregate, prevent or materially delay the performance
by Stockholder of any of its obligations under this Agreement.
(e) The Shares and the certificates, if any,
representing the Shares owned by Stockholder are now, and at all times during
the term hereof will be, held by Stockholder, by a nominee or custodian for
the benefit of Stockholder or by the depository under the Offers, free and
clear of all liens, claims, security interests, proxies, voting trusts or
agreements, options, rights, understandings or arrangements or any other
encumbrances or restrictions whatsoever on title, transfer, or exercise of any
rights of a shareholder in respect of such Shares (collectively,
"Encumbrances"), except for (i) any such Encumbrances arising hereunder (in
connection therewith any restrictions on transfer or any other Encumbrances
have been waived by appropriate consent), (ii) any rights, agreements,
understandings or arrangements which represent a financial interest in cash
received upon sale of the Shares and (iii) Encumbrances imposed by federal or
state securities laws (collectively, "Permitted Encumbrances").
SECTION 2. Representations and Warranties of Parent and the
Purchaser. Each of Parent and the Purchaser hereby, jointly and severally,
represents and warrants to Stockholder as follows:
(a) Each of Parent and the Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and each of Parent and the Purchaser has all requisite
corporate power and authority to execute and deliver this Agreement , each
Other Stockholder Agreement and the Merger Agreement and to consummate the
transactions contemplated hereby and thereby, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement, each Other Stockholder Agreement and the Merger Agreement.
(b) This Agreement, each Other Stockholder Agreement
and the Merger Agreement have been duly authorized, executed and delivered by
each of Parent and the Purchaser, and constitute the valid and binding
obligations of each of Parent and the Purchaser, enforceable against each of
them in accordance with their 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) the
availability of the remedy of specific performance or injunctive or other
forms of equitable relief may be subject to equitable defenses and would be
subject to the discretion of the court before which any proceeding therefor
may be brought.
(c) Neither the execution and delivery of this
Agreement, the Merger Agreement or any Other Stockholder Agreement by each of
Parent and Purchaser nor the consummation by Parent and Purchaser of the
transactions contemplated hereby or thereby will result in a violation of, or
a default under, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which either Parent or Purchaser is
a party or by which either Parent or Purchaser or their respective assets are
bound. The consummation by Parent and Purchaser of the transactions
contemplated by this Agreement, the Merger Agreement and any Other Stockholder
Agreement will not (i) violate any provision of any judgment, order or decree
applicable to Parent or Purchaser or (ii) require any consent, approval or
notice under any statute, law, rule or regulation applicable to either Parent
or Purchaser, other than (x) filings under the Exchange Act and the rules and
regulations promulgated thereunder and (y) where the failure to obtain such
consents or approvals or to make such notifications, would not, individually
or in the aggregate, prevent or materially delay the performance by either
Parent or Purchaser of any of their obligations under this Agreement, each
Other Stockholder Agreement and the Merger Agreement.
SECTION 3. Tender of the Shares.
(a) Stockholder hereby agrees that it shall irrevocably
tender (and deliver any certificates evidencing) its Shares, or cause its
Shares to be irrevocably tendered, into the Class A Offer promptly following,
and in any event no later than the first business day following, the
commencement of the Class A Offer pursuant to Section 1.1 of the Merger
Agreement (the "Offer Documents") in accordance with the procedures set forth
in the Offer Documents, free and clear of all Encumbrances (other than
Permitted Encumbrances); provided that Parent and Purchaser agree that
Stockholder may withdraw its Shares from the Class A Offer at any time
following the termination of this Agreement or as otherwise provided pursuant
to Section 9 hereof.
(b) If the Offers are terminated or withdrawn by the
Purchaser, or the Merger Agreement is terminated prior to the purchase of
Shares in the Offers, Parent and Purchaser shall promptly return, and shall
cause any depository or paying agent, including the Paying Agent, acting on
behalf of Parent and Purchaser, to return all tendered Shares to the
registered holders of the Shares tendered in the Offers.
SECTION 4. [INTENTIONALLY LEFT BLANK]
SECTION 5. Transfer of the Shares; Other Actions.
(a) Prior to the termination of this Agreement, except
as otherwise provided herein (including pursuant to Section 3 or Section 6) or
in the Merger Agreement, Stockholder shall not, and shall cause each of its
subsidiaries not to: (i) transfer, assign, sell, gift-over, pledge or
otherwise dispose (whether by sale, liquidation, dissolution, dividend or
distribution) of, create or suffer to exist any Encumbrances (other than
Permitted Encumbrances) on or consent to any of the foregoing ("Transfer"),
any or all of the Shares or any right or interest therein; (ii) enter into any
contract, option or other agreement, arrangement or understanding with respect
to any Transfer; (iii) grant any proxy, power-of-attorney or other
authorization or consent with respect to any of the Shares with respect to any
matter that is, or that is reasonably likely to be exercised in a manner,
inconsistent with the transactions contemplated by the Merger Agreement or the
provisions thereof; (iv) deposit any of the Shares into a voting trust, or
enter into a voting agreement or arrangement with respect to any of the
Shares; or (v) knowingly, directly or indirectly, take or cause the taking of
any other action that would restrict, limit or interfere with the performance
of such Stockholder's obligations hereunder or the transactions contemplated
hereby, excluding any bankruptcy filing.
(b) Upon receipt of payment in full for all of its
Shares, Stockholder agrees that any and all rights incident to its ownership
of Shares (including any rights to recover amounts, if any, that may be
determined to be due to any stockholder or former stockholders of Company),
including but not limited to rights arising out of a such Stockholder's
ownership of Shares prior to the transfer of such Shares to Purchaser or
Parent pursuant to the Class A Offer or pursuant to the Merger Agreement,
shall be transferred to Purchaser and Parent upon the transfer to Purchaser or
Parent of such Stockholder's Shares.
SECTION 6. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Without in any way limiting Stockholder's right to
vote the Shares in its sole discretion on any other matters that may be
submitted to a stockholder vote, consent or other approval, Stockholder hereby
irrevocably grants to, and appoints, Parent and any designee thereof,
Stockholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of such Stockholder, to attend any
meeting of the stockholders of the Company on behalf of such Stockholder, to
include such Shares in any computation for purposes of establishing a quorum
at any meeting of stockholders of the Company, and to vote all Shares
beneficially owned or controlled by such Stockholder (the "Vote Shares"), or
to grant a consent or approval in respect of the Vote Shares, in connection
with any meeting of the stockholders of the Company or any action by written
consent in lieu of a meeting of stockholders of the Company (i) in favor of
the Merger or any other transaction pursuant to which Parent proposes to
acquire the Company, whether by tender offer or merger, in which stockholders
of the Company would receive cash consideration per share of Common Stock
equal to or greater than the consideration to be received by such stockholders
in the Offer and the Merger and otherwise on the same terms as the Offers and
the Merger and/or (ii) against any action or agreement which would in any
material respect impede, interfere with or prevent the Merger, including, but
not limited to, any other extraordinary corporate transaction, including, a
merger, acquisition, sale, consolidation, reorganization or liquidation
involving the Company and a third party, or any other proposal of a third
party to acquire the Company or all or substantially all of the assets
thereof.
(b) Stockholder hereby represents that any proxies
heretofore given in respect of the Shares, if any, are revocable, and hereby
revokes such proxies.
(c) Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 6 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of Stockholder under this Agreement. Stockholder
hereby further affirms that the irrevocable proxy is coupled with an interest
and, except as set forth in this Section or in Section 9, is intended to be
irrevocable in accordance with the provisions of Section 212 of the DGCL. If
during the term of this Agreement for any reason the proxy granted herein is
not irrevocable, then such Stockholder agrees that it shall vote its Shares in
accordance with Section 6(a) above as instructed by Parent in writing. The
parties agree that the foregoing shall be a voting agreement created under
Section 218 of the DGCL.
SECTION 7. Acquisition Proposals; Non-Solicitation.
(a) Acquisition Proposals
(i) Stockholder will notify Parent and the
Purchaser immediately if any Acquisition Proposals are received by,
or, in connection with any Acquisition Proposal, any information is
requested from or any negotiations or discussions are sought to be
initiated or continued with, Stockholder or Stockholder's officers,
directors, employees, investment bankers, attorneys, accountants or
other agents, if any, which notice shall include the identity of the
Person making such information request or Acquisition Proposal and
the material terms and conditions of such Acquisition Proposal or
information request. Stockholder agrees that it will immediately
cease and terminate any of its existing activities, discussions,
negotiations or communications with any parties with respect to any
Acquisition Proposal.
(b) Non-Solicitation.
(i) Stockholder shall not and shall not authorize
or permit its representatives to directly or indirectly (i)
initiate, solicit encourage, or take any action to facilitate the
making of, any offer or proposal which constitutes or is reasonably
likely to lead to any Acquisition Proposal, (ii) enter into any
agreement with respect to any Acquisition Proposal, or (iii) in the
event of an unsolicited Acquisition Proposal for the Company or
otherwise, engage in negotiations or discussions with, or provide
any information or data to, any Person (other than Parent or any of
its affiliates or representatives) relating to any Acquisition
Proposal. It is understood that this Section 8 limits the rights of
Stockholder only to the extent that Stockholder is acting in
Stockholder's capacity as a stockholder of the Company. Nothing
herein shall be construed as preventing Stockholder, as an officer
or director of the Company, from fulfilling the obligations of such
office (including, subject to the limitations contained in Sections
5.2 and 5.3 of the Merger Agreement, the performance of obligations
required by the fiduciary obligations of Stockholder acting solely
in his or her capacity as an officer or director).
SECTION 8. Further Assurances. Each party shall execute and
deliver any additional documents and take such further actions as may be
reasonably necessary or desirable to carry out all of the provisions hereof,
including all of the parties' obligations under this Agreement, including
without limitation to vest in Parent the power to vote the Shares to the
extent contemplated by Section 6.
SECTION 9. Termination.
(a) This Agreement, and all rights and obligations of
the parties hereunder, shall terminate immediately upon termination of the
Merger Agreement.
(b) Sections 10 and 12(e) shall survive the termination
of this Agreement.
SECTION 10. Expenses. All fees, costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such fees, costs and expenses.
SECTION 11. Public Announcements. Stockholder (in his
capacity as a stockholder of the Company and/or signatory to this Agreement)
shall not make any public announcement regarding this Agreement and the
transactions contemplated hereby, without the prior written consent of Parent.
SECTION 12. Miscellaneous.
(a) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or sent by a nationally recognized
overnight courier service, such as Federal Express (providing proof of
delivery), to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to Stockholder, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
c/o Orbitz, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Orbitz, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Parent or the Purchaser, to:
Cendant Corporation
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇, Esq.
(b) Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed
manually or by facsimile by the parties hereto in any number of counterparts,
each of which shall be considered one and the same agreement and shall become
effective when a counterpart hereof shall have been signed by each of the
parties and delivered to the other parties.
(d) Entire Agreement. This Agreement (together with the
Merger Agreement and any other documents and instruments referred to herein
and therein or entered into by the parties in connection with the Merger or
this Agreement) constitutes the entire agreement among the parties with
respect to the subject matter hereof and thereof and supersedes all other
prior agreements and understandings, both written and oral, among the parties
or any of them with respect to the subject matter hereof and thereof.
(e) Governing Law, Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflicts of law thereof.
Each of the parties hereby irrevocably and unconditionally consents to submit
to the exclusive jurisdiction of the Court of Chancery of the State of
Delaware, and any appellate court thereof, for any litigation arising out of
or relating to this Agreement or the agreements delivered in connection
herewith or the transactions contemplated hereby or thereby, to the extent the
Court of Chancery has jurisdiction over the claims alleged in such litigation,
or, if the Court of Chancery does not have jurisdiction over the claims
alleged in such litigation, the courts of the State of Delaware and of the
United States of America located in the State of Delaware, and each of the
parties hereby irrevocably and unconditionally (i) agrees not to commence any
such litigation except in such courts, (ii) waives any objection to the laying
of venue of any such litigation in such Delaware courts and (iii) agrees not
to plead or claim in any Delaware court that such litigation brought therein
has been brought in an inconvenient forum. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices
in Section 12(a). Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
(f) Waiver of Jury Trial. EACH PARTY IS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION
HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS,
(B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT
MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 12(f).
(g) Assignment. Prior to the earlier to occur of (i)
the termination of the Merger Agreement or (ii) the consummation of the
Merger, neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (other than in the
case of a merger or consolidation where the successor assumes the obligations
hereunder) without the prior written consent of the other parties except that
Parent and the Purchaser may assign, in their sole discretion and without the
consent of any other party, any or all of their rights, interests and
obligations hereunder to each other or to one or more direct or indirect
wholly-owned subsidiaries of Parent (each, an "Assignee"); provided that no
such assignment shall relieve Parent or Purchaser of any of their respective
obligations under this Agreement. Any such Assignee may thereafter assign, in
its sole discretion and without the consent of any other party, any or all of
its rights, interests and obligations hereunder to one or more additional
Assignees. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by, the parties and their
respective successors and permitted assigns, and the provisions of this
Agreement are not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(h) Severability of Provisions. If any term or
provision of this Agreement is invalid, illegal or incapable of being enforced
by rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated by this Agreement
is not affected in any manner adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions are
fulfilled to the extent possible.
(i) Specific Performance. It is recognized and
expressly agreed by the parties hereto that monetary damages would be
inadequate to compensate for breach of this Agreement and that rights which
are subject to this Agreement are unique and are of such a nature as to be
inherently difficult or impossible to value monetarily. Accordingly,
notwithstanding any other provision of this Agreement, the Merger Agreement or
the Other Stockholder Agreements, the parties agree that any violation or
alleged violation of this Agreement shall cause irreparable injury, and that,
in addition to any other remedy available under this Agreement, the parties
hereto shall be entitled immediately to obtain injunctive relief, preliminary
or otherwise, to enjoin such breach or the continuation of any such breach,
without the necessity of proving actual damages, and the terms of this
Agreement shall be enforceable in court by a decree of specific performance.
Such remedies shall be cumulative and not exclusive, and shall be in addition
to any other remedies that the parties hereto may have hereunder. To the
extent permitted by applicable law, each party waives any objection to the
imposition of such decree of specific performance or any requirement for a
posting of a bond.
(j) Amendment. No amendment or modification of this
Agreement shall be effective unless it shall be in writing and signed by each
of the parties hereto, and no waiver or consent hereunder shall be effective
against any party unless it shall be in writing and signed by such party.
(k) Binding Nature. This Agreement is binding upon and
is solely for the benefit of the parties hereto and their respective
successors, legal representatives and assigns.
(l) FIRPTA Certificates. Prior to the purchase of
Shares pursuant to Section 3 hereof, Stockholder shall provide to Parent,
Purchaser or the Paying Agent (as defined in the Merger Agreement), as the
case may be, a certificate of non-foreign status as provided in Treasury
Regulation Section 1.1445-2(b) (the "FIRPTA Certificate"). If a Stockholder
fails to deliver the FIRPTA Certificate, Parent, Purchaser or the Paying
Agent, as the case may be, shall be entitled to withhold the amount required
to be withheld pursuant to Section 1445 of the Code from amounts otherwise
payable to Stockholder pursuant to the Merger Agreement or this Agreement.
(m) No Recourse. Purchaser and Parent agree that
Stockholder (in his capacity as a stockholder of the Company) will not be
liable for claims, losses, damages, liabilities or other obligations resulting
from the Company's breach of the Merger Agreement.
IN WITNESS WHEREOF, Parent, the Purchaser and the
Stockholders have caused this Agreement to be duly executed and delivered as
of the date first written above.
CENDANT CORPORATION
/s/▇▇▇▇ ▇. ▇▇▇▇
By: _____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President,
Law and Corporate Secretary
▇▇▇▇▇▇▇▇▇ ACQUISITION CORPORATION
/s/▇▇▇▇ ▇. ▇▇▇▇
By: _____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President,
Secretary and Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: ______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
SCHEDULE I
Class A Class B Common Total Shares
-------- --------------- +
Name and Address Common Stock Stock Vested Options Vested Options
---------------- ------------ ----- -------------- --------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 150,000 1,481,249 1,631,249
TOTAL