Stockholder Agreement - Cendant Corp. and Cheap Tickets Inc.
STOCKHOLDER AGREEMENT
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STOCKHOLDER AGREEMENT (this "Agreement"), dated August 13, 2001, by and
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among Cendant Corporation, a Delaware corporation ("Parent"), Diamondhead
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Acquisition Corporation, a Delaware corporation and an indirect wholly-owned
subsidiary of Parent (the "Purchaser"), Cheap Tickets, Inc., a Delaware
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corporation (the "Company") and certain stockholders of the Company set forth on
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Schedule I hereto (each a "Stockholder" and, collectively the "Stockholders").
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WHEREAS, each Stockholder is, as of the date hereof, the record and
beneficial owner of the number of shares of common stock, par value $0.001 (the
"Common Stock"), of the Company set forth opposite the name of such Stockholder
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on Schedule 1 hereto; and
WHEREAS, Parent, the Purchaser and the Company have entered into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
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Agreement"), which provides, among other things, for the Purchaser to commence a
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tender offer for all of the issued and outstanding shares of the Common Stock
(the "Offer") and the merger of the Purchaser with and into the Company with the
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Company continuing as the surviving corporation (the "Merger") upon the terms
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and subject to the conditions set forth in the Merger Agreement (capitalized
terms used herein without definition having the respective meanings specified in
the Merger 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, and in exchange for the consideration described herein , the
Stockholders have agreed, severally and not jointly, 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 Stockholders. Each
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Stockholder hereby represents and warrants to Parent and the Purchaser,
severally and not jointly, as follows:
(a) Such Stockholder (i) is the record and beneficial owner of the
shares of Common Stock (such shares, as they may be adjusted from time to time
pursuant to Section 8, collectively with any shares of Common Stock which such
Stockholder may acquire at any time in the future during the term of this
Agreement, being referred to herein as the "Shares") set forth opposite such
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Stockholder's name on Schedule 1 to this Agreement and (ii) neither holds nor
has any beneficial interest in any option (including any Company Stock Option),
warrant or other right or security convertible into or exercisable for shares of
Common Stock.
<PAGE>
(b) Such 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 such
Stockholder and constitutes the legal, valid and binding obligation of such
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 such 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 such Stockholder is a party or by which such Stockholder or such
Stockholder's assets are bound. The consummation by such Stockholder of the
transactions contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to such Stockholder (but the
foregoing representation does not include any such provision of any judgment,
order, decree, statute, law, rule or regulation to the extent applicable to the
Purchaser or the Parent).
(e) In the case of any Stockholder that is a corporation, limited
partnership or limited liability company, such stockholder is an entity duly
organized and validly existing under the laws of the state in which it is
incorporated or constituted, and such Stockholder has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement.
(f) The Shares and the certificates representing the Shares owned by
such Stockholder are now, and at all times during the term hereof will be, held
by such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, options, rights, understandings or arrangements or
any other encumbrances whatsoever on title, transfer, or exercise of any rights
of a stockholder in respect of such Shares (collectively, "Encumbrances"),
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except for any such Encumbrances arising hereunder.
SECTION 2. Representations and Warranties of Parent and the Purchaser.
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Each of Parent and the Purchaser hereby, jointly and severally, represents and
warrants to the Stockholders 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
<PAGE>
Agreement and to consummate the transactions contemplated hereby, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by each of Parent and the Purchaser, and constitutes the legal, valid and
binding obligation of each of Parent and the Purchaser, enforceable against each
of them 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.
(c) The Parent and the Purchaser confirm to each Stockholder each and
every representation and warranty made by the Parent to the Company in Article
IV of the Merger Agreement, in each instance as though such representation
and/or warranty were set forth in this Agreement as set forth in the Merger
Agreement and were directed to such Stockholder rather than to the Company.
[SECTION 3. Intentionally Omitted]
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SECTION 4. Tender of the Shares. Each Stockholder hereby agrees,
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severally and not jointly, that (a) he, she or it shall tender his, her or its
Shares into the Offer as promptly as practicable, and in any event no later than
the fifth business day, following the commencement of the Offer pursuant to
Section 1.1 of the Merger Agreement, and (b) he, she or it shall not withdraw
any Shares so tendered unless (i) the Offer is terminated or has expired without
Purchaser purchasing all shares of Common Stock validly tendered in the Offer or
(ii) this Agreement has terminated as provided in Section 11.
SECTION 5. Transfer of the Shares. Prior to the termination of this
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Agreement, except as otherwise provided or permitted herein, each Stockholder,
severally and not jointly, agrees not to: (a) transfer, assign, sell, gift-over,
pledge or otherwise dispose of, or consent to any of the foregoing ("Transfer"),
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any or all of the Shares or any right or interest therein; (b) enter into any
contract, option or other agreement, arrangement or understanding with respect
to any Transfer; (c) grant any proxy, power-of-attorney or other authorization
or consent with respect to any of the Shares; (d) 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 (e) take any other action that would in any way restrict,
limit or interfere with the performance of such Stockholder's obligations
hereunder or the transactions contemplated hereby.
<PAGE>
SECTION 6. Grant of Proxy; Appointment of Proxy.
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(a) Each Stockholder hereby grants to, and appoints, Parent and any
designee thereof, such Stockholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of such Stockholder, to
vote the Shares, or to grant a consent or approval in respect of the 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, merger, or otherwise, in which
stockholders of the Company would receive 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/or (ii) against any action or
agreement which would 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.
(b) Such Stockholder represents that any proxies heretofore given in
respect of the Shares, if any, are revocable, and hereby revokes such proxies.
(c) Such Stockholder hereby affirms that the proxy set forth in this
Section 6 is given in connection with the execution of the Merger Agreement, and
that such proxy is given to secure the performance of the duties of such
Stockholder under this Agreement. Such Stockholder hereby further affirms that
the proxy is coupled with an interest and, except as set forth in this Section
or in Section 11, is intended to be irrevocable in accordance with the
provisions of Section 212 of the Delaware General Corporations Law ("DGCL") for
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the period in which this Agreement is in effect, it being understood that if
this Agreement is terminated as provided in Section 11, then (and only then) the
proxy hereby granted shall be likewise ineffective and revoked thereafter. If
for any reason the proxy granted herein is not irrevocable, then such
Stockholder agrees during the term of this Agreement to vote his or its Shares
in accordance with Section 6(a) above as instructed by Parent in writing. The
parties agree that the foregoing is a voting agreement created under Section 218
of the DGCL.
SECTION 7. Option.
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(a) Grant of Option. Subject to the terms and conditions set forth
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herein, each Stockholder hereby grants to Parent an irrevocable and continuing
option (as to each such Stockholder, the "Option") to purchase for cash all ,
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but not less than all, of the Common Stock (including, without limitation, the
Shares) beneficially owned or controlled by such Stockholder as of the date
hereof, or beneficially owned or controlled by such Stockholder (with power to
dispose of the same) at any time hereafter (including, without limitation,
shares acquired by way of exercise of options, warrants or other rights to
purchase Common Stock or by way of dividend, distribution, exchange, merger,
consolidation, recapitalization, reorganization, stock split or otherwise) by
such Stockholder (as adjusted as set forth herein) (as to each such Stockholder,
such Stockholder's "Option Shares") at a purchase price of
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<PAGE>
$16.50 per Option Share, or any higher price that may be paid in the Offer or
the Merger (the "Purchase Price").
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(b) Parent's Exercise of Option.
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(i) Parent may exercise the Options of all Stockholders, by
notice given to any Stockholder at any time following (x) the failure of
such Stockholder to tender his, her or its Shares into the Offer no later
than the fifth business day, following the commencement of the Offer or (y)
any withdrawal of such Shares prior to the termination of this Agreement in
accordance with Section 11 hereof, but may not under any circumstances
exercise this option unless the events described in the preceding clause
(x) or (y) shall have occurred and be continuing. Additionally, if Parent
exercises the Option of any Stockholder it shall exercise the Options of
all Stockholders.
(ii) In the event Parent wishes to exercise the Options Parent
shall send to the Stockholders a written notice (a "Notice," the date of
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which is hereinafter referred to as the "Notice Date") specifying the a
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place and date at least three business days but not more than thirty days
following the Notice Date for the closing (the "Closing") of such purchase
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(the "Closing Date"); provided, however, that Parent may at any time before
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the Closing withdraw the Notice and decline to exercise the Option without
prejudice to its right to exercise the Option at any time thereafter during
the term of the Agreement; and provided further, that in the event that the
any filings, permits, authorizations, consents or approvals may be required
under the HSR Act and any comparable provisions under any antitrust or
competition laws or regulations of any foreign jurisdictions, Parent may
extend the Closing Date for such additional time as may be reasonably
necessary to prepare and file such filings, permits, authorizations,
consents or approvals as may be required by such laws and regulations, and
for such additional time as may be required for the expiration of any
waiting periods (as such period may be from time to time extended by any
Governmental Entity) or to obtain any such authorizations, consents or
approvals. Parent shall not be under any obligation to exercise the Option
as to any Stockholder, and may allow the Options to terminate without
purchasing any Common Stock hereunder from any Stockholder.
(c) Payment and Delivery of Certificates.
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(i) On each Closing Date, Parent shall pay to any Stockholder to
whom a Notice has been delivered and not withdrawn pursuant to clause (ii)
of subsection (b)(ii) of this Section 7, in immediately available funds by
wire transfer to a bank account designated by such Stockholder, an amount
equal to the Purchase Price multiplied by the number of Option Shares to be
purchased from such Stockholder on such Closing Date.
<PAGE>
(ii) At each Closing, simultaneously with the delivery of the
Purchase Price for the Option Shares to be purchased at such Closing, such
Stockholder shall deliver to Parent a certificate or certificates
representing the Option Shares to be purchased at such Closing, which
Option Shares shall be free and clear of all Encumbrances, other than
Encumbrances pursuant to this Agreement. If at any time during the term of
this Agreement the Company has issued rights pursuant to a rights
agreement, then each Option Share shall also be deemed to include and
represent such rights as are provided under such rights agreement then in
effect.
(d) Subsequent Obligations.
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In the event that the Parent exercises Options and purchases shares
from Stockholders, as provided above, Parent agrees to take any and all
commercially reasonable actions to offer to purchase, and to purchase, or
otherwise to acquire (by merger, tender offer or otherwise), as promptly as
shall be reasonably practicable under the circumstances all of the outstanding
equity securities of the Company at a price per share no less than that paid to
the Stockholders pursuant to the foregoing (subject to adjustment to reflect
intervening splits, distributions, dividends, stock dividends, recapitalizations
or other corporate actions or events); provided, however, that Parent shall not
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be required to (x) acquire, or expend any money with respect to, any Company
Stock Options or any outstanding warrants on terms that are less favorable to
Parent than those set forth in the Merger Agreement and the other transactions
contemplated in connection with the Offer and the Merger and (y) make any offer
on terms and conditions (including the conditions set forth in Annex I of the
Merger Agreement) that are less favorable to Parent than the terms and
conditions set forth in the Merger Agreement and in the other transactions
contemplated in connection with the Offer and the Merger; and provided, further,
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however, that the obligation of Parent so to acquire equity securities of the
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Company shall be subject to (i) compliance with applicable law, including
filings, waiting periods, consents, etc., to the extent required by law, (ii)
the rights, if any, of stockholders of the Company not to have their securities
so acquired, and (iii) compliance with any applicable court or governmental
orders or decrees, it being understood that the obligation of the Parent (A)
includes the obligation to take any and all commercially reasonable actions to
satisfy any such conditions and to complete the acquisition provided for above
but (B) does not include the obligation to maintain in existence any public
offer for such other outstanding equity securities for a period of longer than
20 business days; and provided, further, however, that, except in the event that
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the Merger Agreement has been terminated prior to the purchase by Parent of
Shares pursuant to this Section 7, compliance by Parent with all of its material
obligations under the Merger Agreement shall be deemed to satisfy the
obligations set forth in this Section 7(d). Notwithstanding the foregoing,
Parent shall have no obligation to initiate or defend against (or otherwise be
obligated to participate in) any suit, claim or other action arising out of
relating to the Company, its shareholders, the Merger Agreement or any attempt
of Parent to acquire the Company or any shares of its Common Stock, potential
acquirers of the Company or shares of its Common Stock, or otherwise.
<PAGE>
SECTION 8. Certain Events. In the event of any change in the Common Stock
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or Option by reason of a stock dividend, stock split, split-up,
recapitalization, reorganization, business combination, consolidation, exchange
of shares, or any similar transaction or other change in the capital structure
of the Company affecting the Common Stock or the acquisition of additional
shares of Common Stock or other securities or rights of the Company by any
Stockholder (whether through the exercise of any options, warrants or other
rights to purchase shares of Common Stock or otherwise): (a) the number of
Shares owned by such Stockholder shall be adjusted appropriately, (b) the type
and number of shares or securities subject to the Option, and the Purchase Price
therefor, shall be adjusted appropriately, and (c) this Agreement and the
obligations hereunder shall attach to any and all shares of Common Stock or
other securities or rights of the Company held by a Stockholder in lieu of, or
through or by reason of exchange for or conversion of, or issued in respect of,
the securities held by that Stockholder as described in Schedule I hereto.
SECTION 9. Acquisition Proposals; Non-Solicitation; Subsequent Agreements
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Relating to the Shares.
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(a) Acquisition Proposals. Each Stockholder will notify Parent, the
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Purchaser and the Company immediately (or will determine that Parent, the
Purchaser and the Company have been notified) if any proposals are received by,
any information is requested from, or any negotiations or discussions are sought
to be initiated or continued with such Stockholder in connection with any
Acquisition Proposal or Acquisition Proposal Interest indicating, in connection
with such notice, the name of the person indicating such Acquisition Proposal
Interest and the material terms and conditions of any proposals or offers. Each
Stockholder agrees, severally and not jointly, that he, she or it will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any Acquisition Proposal Interest. Such Stockholder will keep Parent, the
Purchaser and the Company fully informed, on a current basis, of the status and
terms of any Acquisition Proposal Interest.
(b) Non-Solicitation. Each Stockholder agrees, severally and not
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jointly, that he, she or it shall immediately cease and cause to be terminated
all existing discussions, negotiations and communications with any Persons with
respect to any Acquisition Proposal. Such Stockholder shall not and shall not
authorize or permit its representatives to directly or indirectly to (i)
initiate, solicit or knowingly encourage, or knowingly 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, 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 9 limits the rights of each
Stockholder only to the extent that such Stockholder is acting in such
Stockholder's capacity as a Stockholder. Nothing herein shall be construed as
preventing a Stockholder who is an officer or director of the Company from
fulfilling the obligations of such office (including, subject to the limitations
contained in Sections 5.3(a) and (b) of the Merger Agreement, the performance of
obligations required by
<PAGE>
the fiduciary obligations of such Stockholder acting solely in his or her
capacity as an officer or director).
(c) Each Stockholder agrees with respect to his, her or its Shares
that for a period of twelve months following the date hereof, in the event that
this Agreement is terminated in accordance with Section 11 hereof, he, she or it
shall not agree to (i) tender such Shares into any tender offer, (ii) vote such
Shares in favor of any Takeover Proposal, or (iii) grant any option in
connection with any Takeover Proposal, in any such case pursuant to any
agreement ("Subsequent Agreement") that does not provide as a term thereof that
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such Subsequent Agreement shall terminate in the event of the termination of any
agreement between the Company and any other party relating to a Takeover
Proposal.
SECTION 10. Further Assurances. Each Stockholder shall, upon request of
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Parent or the Purchaser, execute and deliver any additional documents and take
such further actions as may reasonably be deemed by Parent or the Purchaser to
be necessary or desirable to carry out the provisions hereof and to vest in
Parent the power to vote the Shares as contemplated by Section 6.
SECTION 11. Termination. This Agreement, and all rights and obligations
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of the parties hereunder, shall terminate immediately upon the earlier of (a)
the termination of the Merger Agreement in accordance with its terms (including,
but not limited to, Section 8.1(d) thereof) unless any Stockholder is in breach
of any material term hereof or (b) the Effective Time; provided, however, that
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in the event that, prior to the termination of this Agreement pursuant to the
terms hereof, Parent has delivered a Notice to any Stockholder pursuant to
Section 7(b)(ii), this Agreement shall not terminate until ten business days
following the Closing Date specified in such Notice, as such Closing Date may be
extended pursuant to Section 7(b)(ii); provided, further, however, that Sections
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9(c) and 12 and, to the extent that Parent shall have purchased Shares pursuant
to Section 7 hereof, Section 7(d) shall survive any termination of this
Agreement. Upon termination all provisions hereof other than in Sections 9(c)
and 12 and, to the extent that Parent shall have purchased Shares pursuant to
Section 7 hereof, 7(d) shall be null and void in their entirety and of no effect
whatsoever thereafter.
SECTION 12. Expenses. All fees, costs and expenses incurred in connection
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with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs and expenses.
SECTION 13. Public Announcements. Each of the Stockholders agrees,
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severally and not jointly, that he, she or it will not issue any press release
or otherwise make any public statement with respect to this Agreement or the
transactions contemplated hereby without the prior consent of the Purchaser;
provided, however, that such disclosure may be made without obtaining such prior
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consent if (i) the disclosure is required by law or is required by any
regulatory authority, including but not limited to any national securities
exchange, trading market or inter-dealer quotation system on which the Shares
trade and (ii) the party making
<PAGE>
such disclosure has first used its best efforts to consult with the other
parties about the form and substance of such disclosure.
SECTION 14. Miscellaneous.
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(a) Notices. All notices and other communications hereunder shall be
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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), (such delivery to be effective
at the time at which such notice is first sent and without regard to when it is
received) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to any of the Stockholders, at the address set forth opposite the
name of such Stockholder on Schedule 1 hereto:
with a copy to:
[DIAMONDHEAD], INC.
[Address]
[Address]
Telephone:
Facsimile:
Attention:
and a copy to:
Morrison & Foerster, LLP
555 West Fifth Street
Los Angeles, California 90013-1024
Telephone: (213) 892-5200
Facsimile: (213) 892-5454
Attention: Henry Fields, Esq.
and to
Munger, Tolles & Olson, LLP
355 South Grand Avenue
Los Angeles, California 90071-1560
Telephone: (213) 683-9100
Facsimile: (213) 687-3702
Attention: Simon M. Lorne, Esq.
and
<PAGE>
If to Parent or the Purchaser, to:
[PLATINUM] CORPORATION
[Address]
[Address]
Telephone:
Facsimile:
Attention:
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, California
Telephone: (650) 470-4500
Facsimile: (650) 470-4570
Attention: Kenton J. King, Esq.
(b) Headings. The headings contained in this Agreement are for
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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
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facsimile by the parties hereto, or xerographically or electronically by their
respective attorneys, 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
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Agreement and any other documents and instruments referred to herein and
therein) 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. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(f) Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) 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"). Any such Assignee may thereafter assign, in its sole discretion
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and without the consent of any other party, any or all of its rights, interests
and obligations hereunder to one or more additional
<PAGE>
Assignees. No such assignment or assignments shall relieve the Purchaser or the
Parent of its obligations hereunder (including obligations under and
responsibility for representations and warranties) which shall continue in full
force and effect as obligations of the Purchaser and the Parent, respectively,
notwithstanding such assignment or assignments. Subject to the preceding
sentences, this Agreement will be binding upon, inure to the benefit of and be
enforceable by, the parties and their respective successors and 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.
(g) Severability of Provisions. If any term or provision of this
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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 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.
(h) Specific Performance. The parties hereto acknowledge that money
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damages would be an inadequate remedy for any breach of this Agreement by any
party hereto, and that the obligations of the parties hereto shall be
enforceable by any party hereto through injunctive or other equitable relief.
(i) Amendment. No amendment, modification or waiver in respect of
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this Agreement shall be effective against any party unless it shall be in
writing and signed by such party.
(j) Binding Nature. This Agreement is binding upon and is solely for
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the benefit of the parties hereto and their respective successors, legal
representatives and assigns.
(k) Counterparts. This Agreement may be executed manually or by
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facsimile by the parties hereto, or xerographically or electronically by their
respective attorneys, 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 hereto and
delivered to the other parties hereto.
(l) Board Approval. Effectiveness of this Agreement is contingent
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upon the prior approval of the Company Board of Directors under Section 203 of
the Delaware General Corporation Law.
<PAGE>
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
By: /s/ Samuel L. Katz
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Name: Samuel L. Katz
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Title: Senior Executive Vice President
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Strategic and Business Development
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DIAMONDHEAD ACQUISITION CORPORATION
By: /s/ Eric Bock
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Name: Eric Bock
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Title: Vice President and Secretary
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CHEAP TICKETS, INC.
By: /s/ Sam E. Galeotos
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Name: Sam E. Galeotos
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Title: President and Chief Executive Officer
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MICHAEL J. HARTLEY REVOCABLE TRUST
DATED DECEMBER 21, 1988, AS AMENDED
By: /s/ Michael J. Hartley
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Michael J. Hartley, Trustee
SANDRA TATSUE HARTLEY REVOCABLE TRUST
DATED DECEMBER 21, 1988, AS AMENDED
By: /s/ Sandra T. Hartley
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Sandra T. Hartley, Trustee
HARTLEY INVESTMENTS LIMITED PARTNERSHIP
By: /s/ Michael J. Hartley
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Michael J. Hartley, General Partner
/s/ Michael J. Hartley
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Michael J. Hartley
/s/ Sandra Hartley
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Sandra Hartley
<PAGE>
SCHEDULE I
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Name and Address Shares
TOTAL