Certificate of Incorporation - Orbitz Inc.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ORBITZ, INC.,
a Delaware corporation
Orbitz, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "GENERAL CORPORATION LAW"), hereby
certifies as follows:
1. That this corporation was originally incorporated on May 4, 2000 under
the name DUNC, Inc.
2. That this corporation's Certificate of Incorporation was amended July
17, 2000 and June 19, 2001 pursuant to the General Corporation Law.
3. Pursuant to Section 251 of the General Corporation Law, on April 10,
2002, Orbitz, Inc. merged with CANDU, Inc., with Orbitz, Inc. being
the surviving corporation.
4. Pursuant to the Agreement and Plan of Merger, dated April 10, 2002, by
and between Orbitz, Inc. and CANDU, Inc. (the "MERGER AGREEMENT"), (i)
Orbitz, Inc. amended its Certificate of Incorporation and effected an
increase in authorized shares under such Certificate of Incorporation;
(ii) the outstanding shares of Series A Preferred Stock of Orbitz,
Inc. were cancelled, and each outstanding share of Common Stock of
Orbitz, Inc. was converted into the right to receive one share of
Class C Common Stock of Orbitz, Inc.; and (iii) shares of Class B
Common Stock of CANDU, Inc. were converted, as more specifically
provided in the Merger Agreement, into shares of a similar series of
Class B Common Stock of Orbitz, Inc.
5. That this corporation's Certificate of Incorporation was amended
November 25, 2003 pursuant to the General Corporation Law.
6. That this corporation's Certificate of Incorporation was amended
________, 2003 pursuant to the General Corporation Law.
7. Pursuant to Sections 242 and 245 of the General Corporation Law, this
Amended and Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Certificate of
Incorporation of this corporation.
8. The text of the Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
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"ARTICLE I
NAME
The name of this corporation is Orbitz, Inc. (hereinafter, the
"CORPORATION").
ARTICLE II
REGISTERED OFFICE
The address of the registered office of this Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, Delaware 19081. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
CORPORATE PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
Section 4.1 CAPITALIZATION.
(a) AUTHORIZED SHARES. The total number of shares of all classes
of capital stock which the Corporation shall have the authority to issue is
310,000,000 shares, of which (i) 275,000,000 shares, of a par value of $0.001
per share, shall be designated as classes of Common Stock (the "COMMON STOCK")
as set forth herein, and (ii) 35,000,000 shares, of a par value of $0.001 per
share, shall be designated Preferred Stock (the "PREFERRED STOCK").
(b) COMMON STOCK.
(i) The Common Stock shall consist of the following two
classes: (A) 175,000,000 shares, of a par value of $0.001 per share, shall
be designated Class A Common Stock (the "CLASS A COMMON STOCK") and (B)
100,000,000 shares, of a par value of $0.001 per share, shall be designated
Class B Common Stock (the "CLASS B COMMON STOCK"). Subject to any separate
approvals provided for in this Amended and Restated Certificate of
Incorporation (this "CERTIFICATE"), the Board of Directors of the
Corporation is hereby expressly authorized, by resolution or resolutions
thereof, to provide, out of the unissued shares of Class B Common Stock,
for series of Class B Common Stock and, with respect to each such series,
to fix the number of shares constituting such series and the designation of
such series, the Voting Powers (if any) of the shares of such series, and
the preferences and relative, participating, optional or other special
rights, if any, and any qualifications, limitations or restrictions
thereof, of the shares of such series. Subject to any separate approvals
required in this Certificate, the powers, preferences and relative,
participating, optional and other special rights of each
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series of Class B Common Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding.
(ii) Initially, the Class B Common Stock shall consist of
the following five series: (A) 20,000,000 shares, of a par value of $0.001
per share, designated Series B-AA Common Stock (the "SERIES B-AA COMMON
STOCK"), (B) 20,000,000 shares, of a par value of $0.001 per share,
designated Series B-CO Common Stock (the "SERIES B-CO COMMON STOCK"), (C)
20,000,000 shares, of a par value of $0.001 per share, designated Series
B-DL Common Stock (the "SERIES B-DL COMMON STOCK"), (D) 20,000,000 shares,
of a par value of $0.001 per share, designated Series B-NW Common Stock
(the "SERIES B-NW COMMON STOCK"), and (E) 20,000,000 shares, of a par value
of $0.001 per share, designated Series B-UA Common Stock (the "SERIES B-UA
COMMON STOCK"). For purposes of this Certificate, the Class A Common Stock,
Class B Common Stock and any other additional classes or series of Common
Stock designated hereafter shall be deemed to be Common Stock.
(c) PREFERRED STOCK. Initially, the Preferred Stock shall consist
of the following series: ____________ shares, of a par value of $0.001 per
share, shall be designated Series A Non-Voting Preferred Stock (the "SERIES A
PREFERRED STOCK"), which shall have the preferences and rights set forth in the
Certificate of Designations, Preferences and Rights of Series A Non-Voting
Convertible Preferred Stock (Par Value $0.001 Per Share) of Orbitz, Inc., a copy
of which is attached as EXHIBIT A hereto and incorporated herein by reference.
Subject to any separate approvals required in this Certificate, the Board of
Directors is hereby expressly authorized, by resolution or resolutions thereof,
to provide, out of the unissued shares of Preferred Stock, for series of
Preferred Stock and, with respect to each such series, to fix the number of
shares constituting such series and the designation of such series, the Voting
Powers (if any) of the shares of such series, and the preferences and relative,
participating, optional or other special rights, if any, and any qualifications,
limitations or restrictions thereof, of the shares of such series. Subject to
any separate approvals required in this Certificate, including, without
limitation, the approvals set forth in Section 4.3 hereof, the powers,
preferences and relative, participating, optional and other special rights of
each series of Preferred Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding.
Section 4.2 NUMBER OF AUTHORIZED SHARES. Subject to any additional or
separate approval expressly provided in this Certificate, including, without
limitation, the approvals set forth in Section 4.3 hereof, or required by law,
the number of authorized shares of any class or series of capital stock of the
Corporation may be increased or decreased by the affirmative vote of a majority
of the members of the entire Board of Directors (without regard to vacancies);
PROVIDED, that (i) the number of authorized shares of Class A Common Stock may
not be decreased below (A) the number of shares thereof then outstanding plus
(B) the number of shares of Class A Common Stock issuable upon conversion of
Class B Common Stock, plus (C) the number of shares of Class A Common Stock
issuable upon exercise of outstanding options; (ii) the number of authorized
shares of Class B Common Stock or that of any series thereof may not be
decreased below the number of shares thereof then outstanding and (iii) the
number of
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authorized shares of Preferred Stock may not be decreased below the number of
shares thereof then outstanding.
Section 4.3 APPROVALS REQUIRED FOR SECURITIES ISSUANCES.
(a) In addition to any other vote required by the Amended and
Restated Bylaws of the Corporation (the "BYLAWS") or by law or any approval
required by Sections 4.3(b) and 8.2(b) hereof, the approval of two-thirds of the
entire Board of Directors (without regard to vacancies) shall be required for
the Corporation or any of its Controlled Affiliates to issue any Securities.
(b) So long as any series of Class B Common Stock has its Voting
Power determined in accordance with Section 5.1(c) hereof and subject to any
approval required by Section 8.2(b) hereof, the Corporation and any of its
Controlled Affiliates shall not, without (i) the approval of the holders of
three-fourths of the Class B Common Stock then outstanding the Voting Power of
which is determined in accordance with Section 5.1(c) hereof and (ii) the
approval of two-thirds of the entire Board of Directors (without regard to
vacancies), issue any Securities other than Qualified Securities.
For purposes of this Certificate: (x) "QUALIFIED SECURITIES" shall
mean (i) Common Stock which entitles the holder thereof to no more than one vote
per share on any matter presented to the stockholders, (ii) Qualified Preferred
Stock which entitles the holder thereof to no more than one vote per share on
any matter presented to the stockholders, (iii) Qualified Preferred Stock which
is convertible into or exchangeable for Common Stock which entitles the holder
thereof to no more than one vote per share (on an as-converted or as-exchanged
basis) on any matter presented to the stockholders, (iv) a debt instrument or
debt instruments which are convertible into or exchangeable for Common Stock or
Qualified Preferred Stock described in (i) through (iii) above or (v) an option,
warrant or other right to acquire a Security described in (i) through (iv)
above, and (y) "QUALIFIED PREFERRED STOCK" shall mean any series of Preferred
Stock, PROVIDED such series votes together with the Common Stock as a single
class on all matters submitted for approval to the holders of such series of
Preferred Stock other than (i) a class or series vote on any proposed amendment
that would alter or change the powers, preferences or special rights of such
series so as to affect them adversely, (ii) any vote pertaining to an approval
afforded such series in respect of the issuance of any series of Preferred Stock
with rights PARI PASSU or senior to such series of Preferred Stock, or (iii) any
other matters expressly required by law.
ARTICLE V
COMMON STOCK VOTING RIGHTS AND POWERS
Section 5.1 COMMON STOCK VOTING RIGHTS. In addition to those voting rights
afforded such holders pursuant to Article VII hereof, the holders of shares of
Common Stock shall have the following voting rights:
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(a) Except as otherwise provided in this Certificate or the Bylaws
or by applicable law, the holders of shares of Common Stock shall vote together
as one class (or if any holders of shares of Preferred Stock are entitled to
vote together with the holders of Common Stock, as one class with such holders
of shares of Preferred Stock) on all matters submitted to a vote of stockholders
of the Corporation.
(b) Each record holder of Class A Common Stock shall be entitled,
with respect to each share of Class A Common Stock held by such holder as of the
applicable record date, to one (1) vote per share in person or by proxy on all
matters submitted to a vote of the holders of Class A Common Stock, whether
voting separately as a class or otherwise. For the avoidance of doubt, if a
holder holds shares of Class A Common Stock and shares of Class B Common Stock,
such holder's voting rights with respect to its shares of Class A Common Stock
shall be determined pursuant to this Section 5.1(b) and such holder's voting
rights with respect to his or her shares of Class B Common Stock shall be
determined pursuant to Section 5.1(c) hereof.
(c) (i) Subject to Sections 5.1(c)(ii), 5.1(d) and 5.1(e)
hereof, each record holder of Class B Common Stock shall be entitled, with
respect to each share of Class B Common Stock held by such holder as of the
applicable record date, to ten (10) votes per share in person or by proxy on all
matters submitted to a vote of stockholders of the Corporation on which they are
entitled to vote. For purposes of this Certificate, references to "Class B
Common Stock having Voting Power determined in accordance with Section 5.1(c)"
or similar language shall mean when such shares shall be entitled to ten (10)
votes per share hereunder.
(ii) Notwithstanding anything set forth in Section
5.1(c)(i) hereof, each record holder of Class B Common Stock shall be entitled,
with respect to each share of Class B Common Stock held by such holder as of the
applicable record date, to one (1) vote per share in person or by proxy on all
matters submitted to a vote of the holders of Class B Common Stock voting
separately as a class or voting separately as a series within such class.
(d) Notwithstanding anything set forth in Section 5.1(c) hereof,
upon and perpetually after the earlier of such time (such time being the
"TRIGGER DATE") as (i) the holders of Class B Common Stock, together with their
Affiliates, cease to have aggregate Deemed Ownership equal to or exceeding
twenty percent (20%) of the then Corporate Capitalization or (ii) either (x) by
the application of Section 5.1(e) hereof, fewer than two (2) series of Class B
Common Stock have Voting Power determined in accordance with Section 5.1(c)
hereof or (y) there are not at least two (2) Persons who are not Affiliates who
separately possess a majority of the Voting Power of shares of two (2) or more
separate series of Class B Common Stock which have their Voting Power determined
in accordance with Section 5.1(c) of this Certificate (each event in clauses (i)
and (ii), a "TRIGGERING EVENT"), then all holders of Class B Common Stock shall
be entitled, with respect to each share of Class B Common Stock held of record
by such holders on the applicable record date, to one (1) vote per share in
person or by proxy on all matters submitted to a vote of stockholders of the
Corporation on which they are entitled to vote.
(e) Notwithstanding anything set forth in Section 5.1(c) hereof,
upon and perpetually after such time as any holder of Class B Common Stock
(together with its Affiliates)
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has Deemed Ownership of less than 2,421,360 shares (as adjusted to give effect
to any stock split, stock dividend, reclassification, recapitalization or
similar event), in the aggregate, of (i) Class B Common Stock and (ii) Class A
Common Stock received pursuant to Section 6.1(a) hereof (an "INDIVIDUAL
TRIGGERING EVENT"), such holder of Class B Common Stock shall be entitled, with
respect to each share of Class B Common Stock held of record by such holder on
the applicable record date, to one (1) vote per share in person or by proxy on
all matters submitted to a vote of stockholders of the Corporation on which they
are entitled to vote.
Section 5.2 DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the preferences applicable to any series of
Preferred Stock, if any, outstanding at any time, the holders of shares of
Common Stock shall be entitled to receive such dividends and other distributions
in cash, property or shares of stock of the Corporation as may be declared
thereon by the Board of Directors from time to time out of assets or funds of
the Corporation legally available therefor; PROVIDED, that, subject to the
provisions of this Section 5.2, the Corporation shall not pay dividends or make
distributions to any holders of any class or series of Common Stock unless
simultaneously with such dividend or distribution, as the case may be, the
Corporation makes the same dividend or distribution with respect to each
outstanding share of Common Stock, regardless of class or series.
(b) In the case of dividends or other distributions on Common
Stock payable in Class A Common Stock or Class B Common Stock including, without
limitation, distributions pursuant to stock splits or divisions of Class A
Common Stock or Class B Common Stock, only shares of Class A Common Stock shall
be distributed with respect to Class A Common Stock, only shares of Series B-AA
Common Stock shall be distributed with respect to Series B-AA Common Stock, only
shares of Series B-CO Common Stock shall be distributed with respect to Series
B-CO Common Stock, only shares of Series B-DL Common Stock shall be distributed
with respect to Series B-DL Common Stock, only shares of Series B-NW Common
Stock shall be distributed with respect to Series B-NW Common Stock, and only
shares of Series B-UA Common Stock shall be distributed with respect to Series
B-UA Common Stock. In the case of any such dividend or distribution payable in
shares of Class A Common Stock or Class B Common Stock the number of shares of
each class and series of Common Stock payable per share of such class or series
of Common Stock shall be equal in number.
(c) The Corporation shall not, except as permitted by Section
5.2(b) or pursuant to dividends payable-in-kind of a Security issued in
compliance with Section 4.3 hereof, pay any dividends or other distributions
consisting of other Voting Securities of the Corporation or Voting Securities of
any of its Controlled Affiliates or pay any dividend or other distribution
consisting of Securities convertible into, or exchangeable for, other Voting
Securities of the Corporation or Voting Securities of any of its Controlled
Affiliates.
Section 5.3 STOCK SPLITS. The Corporation shall not in any manner
subdivide (by any stock split, stock dividend, reclassification,
recapitalization or similar event) or combine (by reverse stock split,
reclassification, recapitalization or similar event) the outstanding shares of
one class or series of Common Stock unless the outstanding shares of all classes
of Common Stock shall be proportionately subdivided or combined.
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Section 5.4 LIQUIDATION RIGHTS. In the event of any dissolution,
liquidation or winding-up of the affairs of the Corporation, whether voluntary
or involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation and after making provision for the holders of any
series of Preferred Stock entitled thereto, the remaining assets and funds of
the Corporation, if any, shall be divided among and paid ratably to the holders
of all classes of Common Stock in proportion to the number of shares held by
them.
Section 5.5 OPTIONS, RIGHTS OR WARRANTS. Subject to the other express
restrictions contained in this Certificate, including, without limitation,
Section 4.3 hereof, the Corporation shall have the power to create and issue,
whether or not in connection with the issue and sale of any shares of stock or
other Securities of the Corporation, options, exchange rights, warrants,
convertible rights, and similar rights permitting the holders thereof to
purchase from the Corporation any shares of its capital stock of any class or
classes at the time authorized, such options, exchange rights, warrants,
convertible rights and similar rights to have such terms and conditions and to
be evidenced by or in such instrument or instruments, as shall be approved by
the Board of Directors.
Section 5.6 MERGERS, CONSOLIDATION, ETC. In the event that the Corporation
shall enter into any consolidation, merger, combination or other transaction (in
each case other than incident to an exchange or a conversion of Common Stock
and/or other Securities for Common Stock pursuant to the terms of this
Certificate) in which shares of Common Stock are exchanged for or converted into
other stock or Securities, or the right to receive cash and/or any other
property, then, and in such event, the shares of each class of Common Stock
shall be entitled to be exchanged (subject to proration upon equitable terms in
the event of a merger or consolidation upon prorated terms) for or converted
into either (a) the same kind and amount of stock, Securities, cash and/or any
other property, as the case may be, into which or for which each share of any
other class of Common Stock is exchanged or converted; PROVIDED, HOWEVER, that
if shares of Common Stock are exchanged for or converted into shares of capital
stock, such shares received upon such exchange or conversion may differ in a
manner similar to the manner in which such classes or series of Common Stock
differ under this Certificate, or (b) if holders of any class or series of
Common Stock are to receive different kinds (other than as contemplated by the
preceding clause (a)) or amounts of stock, securities, cash and/or any other
property, an amount of stock, securities, cash and/or property per share having
a value, as determined by an independent investment banking firm of national
reputation selected by the Board of Directors, substantially equivalent to the
value per share into which or for which each share of any other class or series
of Common Stock is exchanged or converted; PROVIDED, HOWEVER, the foregoing
clause (b) shall not permit differential consideration of any nature amongst the
different series of Class B Common Stock. To the fullest extent permitted by
law, any construction, calculation or interpretation made by the Board of
Directors in determining the application of the provisions of this Section 5.6
in good faith shall be conclusive and binding on the Corporation and its
stockholders.
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ARTICLE VI
CONVERSION OF CLASS B COMMON STOCK;
TRANSFER OF CLASS B COMMON STOCK
Section 6.1 CONVERSION OF CLASS B COMMON STOCK.
(a) VOLUNTARY CONVERSION. Each holder of Class B Common Stock
shall be entitled to convert, at any time and from time to time, any or all of
the shares of such holder's Class B Common Stock on a one-for-one basis, into
the same number of fully paid and non-assessable shares of Class A Common Stock.
(b) VOLUNTARY CONVERSION PROCEDURES. At the time of a voluntary
conversion pursuant to Section 6.1(a) hereof, the record holder of shares of
Class B Common Stock shall deliver at any time during normal business hours to
the principal office of the Corporation or at the office of the Corporation's
transfer agent (the "TRANSFER AGENT") for shares of the Class A Common Stock (i)
the certificate or certificates representing the shares of Class B Common Stock
to be converted, duly endorsed in blank or accompanied by proper instruments of
transfer, in form satisfactory to the Corporation and to the Transfer Agent duly
executed by such holder or such holder's authorized attorney and (ii) written
notice to the Corporation stating that the record holder elects to convert such
share or shares and stating the name or names (with addresses) and denominations
in which the certificate or certificates representing the shares of Class A
Common Stock issuable upon the conversion are to be issued and including
instructions for the delivery thereof. All conversions under Section 6.1(a)
hereof may be subject to such additional conditions mutually agreed upon between
the Corporation and the holder of Class B Common Stock electing to convert such
shares of Class B Common Stock. Conversion shall be deemed to have been effected
at the time when delivery is made to the principal office of the Corporation or
the office of the Transfer Agent of such written notice and the certificate or
certificates representing the shares of Class B Common Stock to be converted,
and as of such time, each Person named in such written notice as the Person to
whom a certificate representing shares of Class A Common Stock is to be issued
shall be deemed to be the holder of record of the number of shares of Class A
Common Stock to be evidenced by that certificate. Upon such delivery, the
Corporation or the Transfer Agent shall promptly issue and deliver a certificate
or certificates representing the number of shares of Class A Common Stock to
which such Person is entitled by reason of such conversion, and shall cause such
shares of Class A Common Stock to be registered in the name of such Person.
(c) UNCONVERTED SHARES. In the event of the conversion of less
than all the shares of Class B Common Stock evidenced by a certificate
surrendered to the Corporation in accordance with the procedures of Section
6.1(b), the Corporation shall execute and deliver to, or upon the written order
of, the holder of such unconverted shares, without charge to such holder, a new
certificate evidencing the number of shares of the series of Class B Common
Stock not converted.
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(d) AUTOMATIC CONVERSION.
(i) In the event of any Transfer of any share of Class B
Common Stock to any Person, other than pursuant to a Qualified Transfer,
such share of Class B Common Stock shall automatically, without any further
action, convert into one (1) fully paid and non-assessable share of Class A
Common Stock.
(ii) In the event of a Triggering Default, each share of
Class B Common Stock held by the Breaching Party shall each automatically,
without any further action, convert into one (1) fully paid and
non-assessable share of Class A Common Stock and the right of such
Breaching Party to acquire shares of Class B Common Stock shall forever be
terminated.
(e) AUTOMATIC CONVERSION PROCEDURES. In the event of any automatic
conversion pursuant to the terms of Section 6.1(d) hereof, the conversion shall
be deemed to have been effected at the time the event triggering the automatic
conversion occurred (the "CLASS B AUTOMATIC CONVERSION TIME"). At the Class B
Automatic Conversion Time, the certificate or certificates that represented
immediately prior thereto the shares of Class B Common Stock that were so
converted (the "CONVERTED CLASS B COMMON STOCK") shall, automatically and
without further action, represent the same number of fully paid and
non-assessable shares of Class A Common Stock. Holders of Converted Class B
Common Stock shall deliver their certificates, duly endorsed in blank or
accompanied by proper instruments of transfer, in form satisfactory to the
Corporation and to the Transfer Agent duly executed by such holder or such
holder's authorized attorney to the principal office of the Corporation or the
office of the Transfer Agent, together with a written notice stating the name or
names (with addresses) and denominations in which the certificate or
certificates representing such shares of Class A Common Stock are to be issued
and including instructions for delivery thereof. Upon such delivery, the
Corporation or its Transfer Agent shall promptly issue and deliver at such
stated address to such holder of shares of Class A Common Stock a certificate or
certificates representing the number of shares of Class A Common Stock to which
such holder is entitled by reason of such conversion, and shall cause such
shares of Class A Common Stock to be registered in the name of such holder. The
Person entitled to receive the shares of Class A Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
of Class A Common Stock at and as of the Class B Automatic Conversion Time, and
the rights of such Person as a holder of shares of Class B Common Stock that
have been converted shall cease and terminate at and as of the Class B Automatic
Conversion Time, in each case without regard to any failure by such holder to
deliver the certificates or the notice required by this Section.
(f) RETIRED CLASS B COMMON STOCK. Shares of Class B Common Stock
that are converted into shares of Class A Common Stock as provided in this
Section 6.1 shall be retired and shall have the status of authorized but
unissued shares of Class B Common Stock. Such shares of Class B Common Stock may
only be reissued in accordance with the terms of this Certificate, including,
without limitation, Sections 4.3 and 5.5 hereof. Upon the conversion or
redemption of all outstanding shares of a series of Class B Common Stock, such
series of Class B Common Stock shall be retired and shall have the status of
authorized but unissued shares of Class B Common Stock and such series of Class
B Common Stock may not be reissued.
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Section 6.2 RECLASSIFICATION OR CONVERSION.
(a) In the event of a reclassification, conversion, or other
similar transaction as a result of which the shares of Class A Common Stock are
reclassified or converted into another security, then a holder of a series of
Class B Common Stock shall be entitled to receive upon conversion of Class B
Common Stock the amount of such security that such holder would have received if
such conversion had occurred immediately prior to the record date of such
reclassification, conversion or other similar transaction.
(b) No adjustments in respect of dividends (other than dividends
paid in Securities of the Corporation) shall be made upon the conversion of any
share of any series of Class B Common Stock; PROVIDED, HOWEVER, that if a share
of any series of Class B Common Stock shall be converted subsequent to the
record date for the payment of a dividend or other distribution on shares of any
series of Class B Common Stock but prior to such payment, then the registered
holder of such share at the close of business on such record date shall be
entitled to receive the dividend or other distribution payable on such share on
such date notwithstanding the conversion thereof or the default in payment of
the dividend or distribution due on such date.
Section 6.3 RESERVATION.
(a) The Corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Class A Common Stock, solely for
the purpose of issuance upon conversion of the outstanding shares of any series
of Class B Common Stock, such number of shares of Class A Common Stock that
shall be issuable upon the conversion of all such outstanding shares of any
series of Class B Common Stock; PROVIDED that nothing contained herein shall be
construed to preclude the Corporation from satisfying its obligations in respect
of the conversion of the outstanding shares of any series of Class B Common
Stock by delivery of purchased shares of Class A Common Stock which are held in
the treasury of the Corporation. If any shares of Class A Common Stock require
registration with or approval of any governmental authority under any federal or
state law before such shares of Class A Common Stock may be issued upon
conversion, the Corporation shall cause such shares to be duly registered or
approved, as the case may be. The Corporation shall cause such shares of Class A
Common Stock to be delivered upon conversion to be listed on each national
securities exchange or quotation system on which the outstanding Class A Common
Stock is listed or quoted at the time of such delivery. All shares of Class A
Common Stock that shall be issued upon conversion of the shares of any series of
Class B Common Stock will, upon issue, be validly issued, fully paid and
non-assessable.
Section 6.4 TAXES. The issuance of a certificate or certificates
representing shares of Class A Common Stock issued upon conversion or exchange
of shares of Class B Common Stock shall be made without charge to the holders of
such shares for any stamp or other similar tax in respect of such issuance;
PROVIDED, HOWEVER, that if any such certificate is to be issued in a name other
than that of the record holder of the share or shares of Class B Common Stock
converted, then the Person or Persons requesting the issuance thereof shall pay
to the Corporation the amount of any tax which may be payable in respect of any
transfer involved in
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such issuance or shall establish to the satisfaction of the Corporation that
such tax has been paid or is not required to be paid.
Section 6.5 DEFECTS WITH CONVERSION. With respect to any conversion
pursuant to Section 6.1(a) hereof in the event that there is any defect with
compliance by the holder of shares of Class B Common Stock of the procedures set
forth in Section 6.1(b) hereof, the Corporation shall not, until such defect is
remedied, be obligated to convert such shares of Class B Common Stock and shall
give notice to such holder of the defect as soon as reasonably practicable.
ARTICLE VII
BOARD OF DIRECTORS
Section 7.1 NUMBER OF DIRECTORS AND COMPOSITION OF BOARD.
(a) The Board of Directors of the Corporation (the "BOARD OF
DIRECTORS" or the "BOARD") shall initially consist of nine (9) directors and may
be increased or decreased from time to time in accordance with the provisions of
Section 7.1(b) and 7.2(a) hereof; PROVIDED that the number of directors shall
not be less than three (3) nor more than seventeen (17). Subject to Section 7.2
hereof, (i) the holders of Series B-AA Common Stock, voting separately as a
series, shall be entitled to elect one (1) director (the "SERIES B-AA
DIRECTOR"); (ii) the holders of Series B-CO Common Stock, voting separately as a
series, shall be entitled to elect one (1) director (the "SERIES B-CO
DIRECTOR"); (iii) the holders of Series B-DL Common Stock, voting separately as
a series, shall be entitled to elect one (1) director (the "SERIES B-DL
DIRECTOR"); (iv) the holders of Series B-NW Common Stock, voting separately as a
series, shall be entitled to elect one (1) director (each a "SERIES B-NW
DIRECTOR"); and (v) the holders of Series B-UA Common Stock, voting separately
as a series, shall be entitled to elect one (1) director (the "SERIES B-UA
DIRECTOR" and, together with the Series B-AA Director, Series B-CO Director,
Series B-DL Director and the Series B-NW Director, the "CLASS B DIRECTORS" ). In
addition, subject to Section 7.2 hereof, the holders of Class B Common Stock,
voting together as a single class, shall elect one (1) director (the "MANAGEMENT
DIRECTOR"). Subject to Section 7.2 hereof, notwithstanding any other provision
of this Certificate, including without limitation Section 5.1(a) hereof, holders
(i) of each series of Class B Common Stock shall have the exclusive right to
vote for the election of and the removal without cause of the Class B Director
elected by such series as described in this Section 7.1(a) and (ii) of Class B
Common Stock shall have the exclusive right to vote for the election of and the
removal without cause of the Management Director as described in this Section
7.1(a), and no other class or series of capital stock of the Corporation shall
be entitled to vote for or remove without cause such Class B Directors or the
Management Director.
(b) So long as shares of two (2) or more series of Class B Common
Stock have Voting Power determined in accordance with Section 5.1(c) hereof and
there are at least two (2) Persons who are not Affiliates who separately possess
shares of two (2) or more separate series of Class B Common Stock which have
their Voting Power determined in accordance with Section 5.1(c) of this
Certificate, the Board of Directors may be increased or decreased only pursuant
to a resolution adopted by the affirmative vote of a majority of the directors
then in office and the affirmative vote of two-thirds of the Class B Directors
then in office. Upon and perpetually following such time as (x) shares of fewer
than two (2) series of Class B Common
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Stock have Voting Power determined in accordance with Section 5.1(c) hereof or
(y) there are not at least two (2) Persons who are not Affiliates who separately
possess shares of two (2) or more separate series of Class B Common Stock which
have their Voting Power determined in accordance with Section 5.1(c) of this
Certificate, the Board of Directors may be increased or decreased pursuant to a
resolution adopted by the affirmative vote of two-thirds of the directors then
in office.
Section 7.2 LIMITATIONS ON THE RIGHT OF HOLDERS OF CLASS B COMMON STOCK TO
ELECT DIRECTORS; REDUCTION IN NUMBER OF CLASS B DIRECTORS. The right of the
holders of Class B Common Stock to elect the Class B Directors as provided for
in Section 7.1 hereto shall be subject to the following provisions:
(a) Notwithstanding anything set forth in Section 7.1(a) hereof,
in the event that (i) the holders of the Class B Common Stock, together with
their Affiliates, cease to have aggregate Deemed Ownership equal to or exceeding
twenty percent (20%) of the then Corporate Capitalization or (ii) either (x) by
the application of Section 5.1(e) hereof, fewer than two (2) series of Class B
Common Stock have their Voting Power determined in accordance with Section
5.1(c) hereof or (y) there are not at least two (2) Persons who are not
Affiliates who separately possess shares of two (2) or more separate series of
Class B Common Stock which have their Voting Power determined in accordance with
Section 5.1(c) of this Certificate (each event in clauses (i) and (ii), a "CLASS
B DIRECTORS TRIGGERING EVENT"), then subject to Sections 7.2(e) - (g) hereof,
the right of holders of each series of Class B Common Stock to elect a specified
director position pursuant to Section 7.1 shall forever be cancelled and (A)
such position shall be immediately terminated and (B) the number of Class A
Director positions shall be automatically increased by an amount equal to the
number of director positions so terminated. All newly created positions effected
by this Section 7.2(a) shall be filled as provided in Section 7.2(h).
(b) Notwithstanding anything set forth in Section 7.1(a) hereof,
upon and perpetually after such time as any holder of Class B Common Stock,
together with its Affiliates, has Deemed Ownership of less than 2,421,360 shares
(as adjusted to give effect to any stock split, stock dividend,
reclassification, recapitalization or similar event), in the aggregate, of (i)
Class B Common Stock and (ii) Class A Common Stock received pursuant to Section
6.1(a) hereof (an "INDIVIDUAL CLASS B DIRECTOR TRIGGERING EVENT"), the right of
such series of Class B Common Stock to elect a specified director position
pursuant to Section 7.1 shall forever be cancelled and (x) such position shall
be immediately terminated and (y) the number of Class A Director positions shall
be automatically increased by an amount equal to the number of director
positions so terminated. All newly created positions effected by this Section
7.2(b) shall be filled as provided in Section 7.2(h).
(c) Notwithstanding anything set forth in Section 7.1(a) or 7.2(b)
hereof, at such time as (i) the Voting Power of any series of Class B Common
Stock is possessed by two (2) or more holders (or their Affiliates) of Class B
Common Stock who are not Affiliates and (ii) the Person who held shares of such
series of Class B Common Stock on the Restatement Date, together with its
Affiliates, no longer holds a majority of the outstanding shares of such series,
then upon and perpetually after such time as fewer than 2,421,360 shares of such
series are
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issued and outstanding (as adjusted to give effect to any stock split, stock
dividend, reclassification, recapitalization or similar event), the right of
such series of Class B Common Stock to elect a specified director position
pursuant to Section 7.1 shall forever be cancelled and (x) such position shall
be immediately terminated and (y) the number of Class A Director positions shall
be automatically increased by an amount equal to the number of director
positions so terminated. All newly created positions effected by this Section
7.2(c) shall be filled as provided in Section 7.2(h).
(d) Notwithstanding anything set forth in Section 7.1(a) hereof,
if the majority of the Voting Power of each of two (2) or more separate series
of Class B Common Stock is possessed by any Person and its Affiliates and Voting
Power for any shares of one or more of such series was acquired after the
Restatement Date in a transaction not subject to Section 4.1 of the Stockholders
Agreement, then upon and perpetually after such time as such Person, together
with its Affiliates, has Deemed Ownership of less than 4,842,719 shares (as
adjusted to give effect to any stock split, stock dividend, reclassification,
recapitalization or similar event), in the aggregate, of (i) Class B Common
Stock and (ii) Class A Common Stock received pursuant to Section 6.1(a) hereof,
the right to elect a specified director position pursuant to Section 7.1 shall
forever be cancelled for each series of Class B Common Stock subject to this
Section 7.2(d), other than for the series of Class B Common Stock which, based
on the Corporate Capitalization, has the largest number of shares of such series
outstanding on such date, and (x) such position or positions, as applicable,
shall be immediately terminated and (y) the number of Class A Director positions
shall be automatically increased by an amount equal to the number of director
positions so terminated. All newly created positions effected by this Section
7.3(d) shall be filled as provided in Section 7.2(h).
(e) Notwithstanding anything set forth in Sections 7.2(a) - (d)
hereof and subject to Sections 7.2(f) and (g) hereof, so long as the holders of
any series of Class B Common Stock, together with their Affiliates, have Deemed
Ownership equal to or exceeding five percent (5%) of the Corporate
Capitalization, then the holders of shares of such series shall be entitled to
elect directors pursuant to Section 7.1(a) hereof. Upon and perpetually after
such time that (i) an Individual Class B Triggering Event has occurred with
respect to such series of Class B Common Stock or a Class B Triggering Event has
occurred and (ii) the holders of such series of Class B Common Stock, together
with their Affiliates, cease to have Deemed Ownership equal to or exceeding five
percent (5%) of the Corporate Capitalization, then the right of such series to
elect a specified director position pursuant to Section 7.1 shall forever be
cancelled and (x) such position shall be immediately terminated and (y) the
number of Class A Director positions shall be automatically increased by an
amount equal to the number of director positions so terminated. All newly
created positions effected by this Section 7.2(e) shall be filled as provided in
Section 7.2(h).
(f) Notwithstanding anything set forth in Sections 7.2(a) - (e)
hereof and subject to Section 7.2(g) hereof, at such time as (i) the Voting
Power of any series of Class B Common Stock is possessed by two (2) or more
holders (or their Affiliates) of Class B Common Stock who are not Affiliates and
(ii) the Person who held shares of either of such series of Class B Common Stock
on the Restatement Date no longer holds, together with its Affiliates, a
majority of the Voting Power of such series, then upon and perpetually after
such time as the
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outstanding shares of such series (based for such purpose on Deemed Ownership)
represents less than five percent (5%) of the Corporate Capitalization, the
right of such series to elect a specified director position pursuant to Section
7.1 shall forever be cancelled and (x) such position shall be immediately
terminated and (y) the number of Class A Director positions shall be
automatically increased by an amount equal to the number of director positions
so terminated. All newly created positions effected by this Section 7.2(f) shall
be filled as provided in Section 7.2(h).
(g) Notwithstanding anything set forth in Sections 7.2(a) - (f)
hereof, if a majority of the Voting Power of each of two (2) or more separate
series of Class B Common Stock is possessed by any Person and its Affiliates and
Voting Power for any shares of one or more of such series was acquired after the
Restatement Date in a transaction not subject to Section 4.1 of the Stockholders
Agreement, then upon and perpetually after such time as such Person ceases to
have Deemed Ownership equal to or exceeding ten percent (10%) of the Corporate
Capitalization, the right to elect a specified director position pursuant to
Section 7.1 shall forever be cancelled for each series of Class B Common Stock
subject to this Section 7.2(g), other than for the series of Class B Common
Stock which, based on the Corporate Capitalization, has the largest number of
shares of such series outstanding on such date, and (x) such position or
positions, as applicable, shall be immediately terminated and (y) the number of
Class A Director positions shall be automatically increased by an amount equal
to the number of director positions so terminated. All newly created positions
effected by this Section 7.2(g) shall be filled as provided in Section 7.2(h).
(h) Any Class A Director position created pursuant to this Section
7.2 shall be filled directly by the Class A Nominating Committee, as provided in
the Bylaws. The stockholders of the Corporation shall have no right to fill such
vacancies or newly-created positions.
(i) Upon and perpetually following such time as no series of Class
B Common Stock has the right to elect a specified director position pursuant to
Section 7.1 hereof, the Management Director shall be a Class A Director, and
such position shall be filled directly by the Class A Nominating Committee, as
provided in the Bylaws.
Section 7.3 CLASS A DIRECTORS. Each director position on the Board not
subject to election and removal by the Voting Power of a class or series of
Class B Common Stock shall be a Class A Director. The number of authorized
directors designated as Class A Directors (the "CLASS A DIRECTORS") shall
initially be three (3). Except as provided in Section 7.2(h), the holders of all
classes of Common Stock, voting together as one class (or if any holders of
shares of Preferred Stock are entitled to vote thereon together with the holders
of Common Stock, as one class with such holders of shares of Preferred Stock)
shall be entitled to elect all such Class A Directors.
Section 7.4 CLASSIFICATION OF THE CLASS A DIRECTORS. The Class A Directors
shall be divided into three classes, designated Class I, Class II and Class III.
Such positions shall be staggered amongst the Class I, II and III classes so as
to maintain the number of directors in each class being as nearly equal as
possible. Class I shall be initially elected for a term expiring at the first
annual meeting of stockholders following the Restatement Date, Class II shall be
initially
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elected for a term expiring at the second annual meeting of stockholders
following the Restatement Date, and Class III shall be initially elected for a
term expiring at the third annual meeting of stockholders following the
Restatement Date. The Class A Nominating Committee shall determine which Class A
Directors shall initially be appointed to each class, whether upon election or
the filling of a position created pursuant to Section 7.2 hereof. Members of
each class shall hold office until their successors are elected and qualified.
At each succeeding annual meeting of the stockholders of the Corporation, the
successors of the class of directors whose term expires at that meeting shall be
elected for a term expiring at the annual meeting of stockholders held in the
third year following the year of their election. In case of any increase or
decrease, from time to time, in the number of directors, other than those who
may be elected by the holders of any outstanding series of Preferred Stock or
any other series or class of stock as set forth in this Certificate, the number
of directors in each class shall be apportioned as nearly equal as possible.
Section 7.5 REMOVAL.
(a) CLASS B DIRECTORS. Except as provided in Section 7.2,
(i) The approval of the holders of a majority of the
outstanding Series B-AA Common Stock shall be required to remove without
cause (and with or without prior notice) the Series B-AA Director, and to
elect a successor therefor.
(ii) The approval of the holders of a majority of the
outstanding Series B-CO Common Stock shall be required to remove without
cause (and with or without prior notice) the Series B-CO Director, and to
elect a successor therefor.
(iii) The approval of the holders of a majority of the
outstanding Series B-DL Common Stock shall be required to remove without
cause (and with or without prior notice) the Series B-DL Director, and to
elect a successor therefor.
(iv) The approval of the holders of a majority of the
outstanding Series B-NW Common Stock shall be required to remove without
cause (and with or without prior notice) the Series B-NW Director, and to
elect a successor therefor.
(v) The approval of the holders of a majority of the
outstanding Series B-UA Common Stock shall be required to remove without
cause (and with or without prior notice) the Series B-UA Director, and to
elect a successor therefor.
(b) CLASS A DIRECTORS. Any Class A Director may be removed from
office only with cause by the affirmative vote of the holders of a majority of
the Voting Power of the then outstanding Common Stock, voting together as a
single class (or if any holders of shares of Preferred Stock are entitled to
vote together with the holders of Common Stock, as a single class with such
holders of shares of Preferred Stock).
Section 7.6 MANAGEMENT DIRECTOR. So long as the holders of Class B Common
Stock have the right to elect the Management Director pursuant to Section 7.1(a)
hereof, the approval
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of the holders of a majority of the issued and outstanding shares of Class B
Common Stock, voting together as a single class, shall be required to remove
without cause (and with or without prior notice) the Management Director, and to
elect a successor therefor.
Section 7.7 VACANCIES. Should a vacancy occur or be created for any Class
A Director other than in circumstances subject to Sections 7.2(a) - (g), the
Class A Director position shall be filled by the Class A Nominating Committee,
as provided in the Bylaws. The stockholders of the Corporation shall have no
right to fill such vacancies.
Section 7.8 REMOVAL. Notwithstanding any of the foregoing provisions of
this Article VII, each director shall serve until his successor is elected and
qualified or until his death, retirement, resignation or removal.
Section 7.9 WRITTEN BALLOT. The directors of the Corporation need not be
elected by written ballot unless the Bylaws so provide.
ARTICLE VIII
CORPORATE GOVERNANCE
The following provisions are inserted for the management of the business
and the conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of its directors
and stockholders.
Section 8.1 MANAGEMENT OF CORPORATION. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authority expressly conferred upon them
by law or by this Certificate or the Bylaws, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be exercised
or done by the Corporation.
Section 8.2 REQUIRED APPROVALS.
(a) QUALIFIED CLASS B APPROVAL. Notwithstanding anything contained in this
Certificate to the contrary, including, without limitation, Section 9.1 hereof,
at all times during which any series of Class B Common Stock has its Voting
Power determined in accordance with Section 5.1(c) hereof, the Corporation shall
not, and shall not permit its Controlled Affiliates to, without a Qualified
Class B Approval, (X) enter into any transaction or series of related
transactions involving (i) any merger, acquisition, consolidation,
reorganization, issuance of Securities or similar transaction(s) as a result of
which either (A) the holders of Common Stock immediately prior to such
transaction would own Voting Securities possessing Voting Power of the successor
or surviving entity immediately thereafter representing less than a majority of
the Voting Power of such successor or surviving entity or (B) any powers,
preferences or special rights of the holders of Class B Common Stock would be
adversely affected, PROVIDED that if, in the case of (A) or (B) of this clause
(i), the holders of any series of Class B Common Stock shall be treated
disproportionately and adversely in comparison to any other series of Class B
Common Stock in any such transaction then the approval of the holders of a
majority of the issued and outstanding shares of such series of Class B Common
Stock shall also be obtained; or
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(ii) (A) a sale of all or substantially all of the assets or business of the
Corporation or any contract for the lease or license of all or substantially
all of the assets or business of the Corporation, or (B) any sale, or any
contract for the lease or license, of all or a substantial portion of the
assets or business of any Controlled Affiliate of the Corporation, in one or
a series of related transactions, if the assets sold, leased or licensed
generate more than twenty percent (20%) of the consolidated net revenues or
consolidated net income of the Corporation and its Subsidiaries in the twelve
(12) months ended the most recently completed fiscal quarter or the fiscal
quarter immediately preceding such sale, lease or license, (Y) appoint or
consent to any managing member of Orbitz LLC, or any other Controlled
Affiliate that is a limited liability company, other than the Corporation or
otherwise amend or modify the Limited Liability Company Agreement of Orbitz
LLC or (Z) form any Holding Company of the Corporation. Notwithstanding
anything contained in this Section 8.2(a) or this Certificate to the
contrary, at all times during which any series of Class B Common Stock has
its Voting Power determined in accordance with Section 5.1(c) hereof, the
Corporation shall not, without a Reinforced Qualified Class B Approval, enter
into any transaction or series of related transactions described in
subparagraph (i) above involving the Corporation and any Person Controlled by
or under common Control with the Corporation if such transaction would have
an effect described in clauses (A) or (B) above.
(b) REINFORCED QUALIFIED CLASS B APPROVAL. Notwithstanding anything
contained in this Certificate to the contrary, including, without limitation,
Section 9.1 hereof, at all times during which any series of Class B Common Stock
has its Voting Power determined in accordance with Section 5.1(c) hereof, the
Corporation shall not, and shall cause its Controlled Affiliates not to, without
a Reinforced Qualified Class B Approval, enter into any transaction or series of
related transactions involving (x) any merger, acquisition, consolidation,
reorganization, issuance of Securities or similar transaction(s) or (y) a sale
of all or substantially all of the assets or business of the Corporation or any
of its Controlled Affiliates to, or any contract for the lease or license of all
or substantially all of the assets of the business of the Corporation or Orbitz
LLC or any Controlled Affiliate of either of them, in any case, with any holder
of Class B Common Stock or any of such holder's Affiliates.
(c) CLASS B APPROVALS RELATED TO BUSINESS PURPOSE.
(i) On or prior to May 8, 2010, in addition to any requirements of
law and any other provision of this Certificate or the Bylaws (and
notwithstanding the fact that a lesser percentage may be specified by law
or this Certificate or the Bylaws), at all times during which shares of any
series of Class B Common Stock are issued and outstanding, the approval of
each Qualifying Class B Holder shall be required (i) to take actions
described in Sections 9.2(b), 9.2(c), 14.2(c) and 14.2(d) hereof, or (ii)
for the Corporation, or for the Corporation to permit its Controlled
Affiliates, to enter into any transaction or a series of related
transactions involving (x) any merger, acquisition, consolidation,
reorganization or similar transaction or (y) a sale of all or substantially
all of the assets or business of the Corporation or any of its Controlled
Affiliates to, or any contract for the lease or license of all or
substantially all of the assets of the business of the Corporation or any
of its Controlled Affiliates with, a Person who (or whose Affiliates)
displays airline fares on a web site in other than an Unbiased Manner.
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(ii) After May 8, 2010, in addition to any requirements of law and
any other provision of this Certificate or the Bylaws (and notwithstanding
the fact that a lesser percentage may be specified by law or this
Certificate or the Bylaws), at all times during which shares of any series
of Class B Common Stock are issued and outstanding, the approval of each
holder of Class B Common Stock shall be required (i) to take actions
described in Sections 9.2(b), 9.2(c), 14.2(c) and 14.2(d) hereof, or (ii)
for the Corporation, or for the Corporation to permit its Controlled
Affiliates, to enter into any transaction or a series of related
transactions involving (x) any merger, acquisition, consolidation,
reorganization or similar transaction or (y) a sale of all or substantially
all of the assets or business of the Corporation or any of its Controlled
Affiliates to, or any contract for the lease or license of all or
substantially all of the assets of the business of the Corporation or any
of its Controlled Affiliates with, a Person who (or whose Affiliates)
displays airline fares on a web site in other than an Unbiased Manner;
PROVIDED, that such approval shall not be required if the holders of Class
B Common Stock, together with their Affiliates, cease to have aggregate
Deemed Ownership equal to or exceeding twenty percent (20%) of the then
Corporate Capitalization.
(d) UNANIMOUS CLASS B APPROVAL. In addition to any requirements of law and
any other provision of this Certificate or the Bylaws (and notwithstanding the
fact that a lesser percentage may be specified by law or this Certificate or the
Bylaws), at all times during which shares of any series of Class B Common Stock
are issued and outstanding, a Unanimous Class B Approval shall be required:
(i) for the Corporation to redeem or repurchase any outstanding
class or series of Common Stock or Preferred Stock from any holder of
either Class B Common Stock or Class A Common Stock unless (A) all shares
of such class or series of Common Stock or Preferred Stock may participate
ratably in any such redemption or repurchase, (B) such shares are
mandatorily redeemable pursuant to their terms and are redeemed in
accordance with such mandatory redemption terms, or (C) such shares are
repurchased pursuant to Rule 10b-18 under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder;
(ii) to reclassify any class or series of Common Stock or Preferred
Stock into any series of Class B Common Stock; or
(iii) (A) for the Corporation or its Controlled Affiliates or any of
their respective officers or representatives to terminate or attempt to
terminate, or provide notice declaring Worldspan, L.P. ("WORLDSPAN") in
breach or default of, the Amended and Restated Agreement for CRS Access and
Related Services between Worldspan and Orbitz LLC, dated as of December 23,
2002, as amended (the "WORLDSPAN AGREEMENT"), either unilaterally or in
connection with any litigation or proceeding referenced in clause (B) below
or otherwise, in each case based upon the pending dispute between Worldspan
and the Corporation or its Controlled Affiliates concerning service level
defaults which are alleged to have arisen in May, June and July 2003 (the
"DISPUTE"); or (B) for the Corporation or its Controlled Affiliates or any
of their respective officers or
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representatives to raise the issue of the Dispute in any litigation (or
similar prosecution of claims) involving Worldspan; PROVIDED that, if
Worldspan or its Affiliates initiate litigation (or similar prosecution of
claims) seeking damages, any form of injunction, or concerning any
interpretation of the Worldspan Agreement adverse to the interests of the
Corporation or its Controlled Affiliates, then the Corporation may raise
the issue of such Dispute solely in defense of any such matters asserted by
Worldspan (including, without limitation, as affirmative defenses, but
excluding any claim for damages or injunctive relief, cross-claim, or
counter-claim against Worldspan or any other party) against such litigation
(or similar prosecution of claims).
Section 8.3 STOCKHOLDER ACTION. Except as otherwise provided for in a
certificate of designation for any class or series of Preferred Stock, upon and
after the Trigger Date, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders.
Section 8.4 SPECIAL MEETINGS. Special meetings of stockholders of the
Corporation may be called only by the chairperson of the Board or the chief
executive officer, by the Board of Directors acting pursuant to a resolution
adopted by a majority of the members of the entire Board of Directors (without
regard to vacancies) or by the holders of a majority of the Voting Power of the
issued and outstanding shares of Class B Common Stock.
ARTICLE IX
BYLAWS
Section 9.1 AMENDMENTS. Subject to Section 9.2 hereof, the Board of
Directors shall have the power to adopt, alter, amend or repeal the Bylaws. The
stockholders of the Corporation may adopt, amend or repeal the Bylaws but only
by the affirmative vote of holders of at least a majority of the combined Voting
Power of the then-outstanding shares of capital stock of all classes and series
of the Corporation entitled to vote generally on matters requiring the approval
of stockholders, voting together as a single class, and subject to such
additional approvals provided for in Section 9.2 hereof.
Section 9.2 REQUIRED APPROVALS.
(a) In addition to any requirements of law and any other
provisions of the Bylaws and this Certificate (and notwithstanding the fact that
a lesser percentage may be specified by law, the Bylaws or this Certificate),
(i) at all times during which shares of one or more series of Class B Common
Stock shall have the right to elect a specified director position pursuant to
Section 7.1(a) hereof, then the approval of such series of Class B Common Stock
shall be required to alter, amend, waive or repeal, or adopt any provision of
the Bylaws which adversely affects the rights or expand the limitations
established under Section 3.14(c), Section 4.8, Section 4.13, Article V, Section
6.14 or Article XI(b) of the Bylaws or this Section 9.2(a)(i), or (ii) at all
times during which shares of any series of Class B Common Stock have their
Voting Power determined in accordance with Section 5.1(c) hereof, a Unanimous
Class B
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Approval shall be required to alter, amend, waive or repeal, or adopt any
provision of the Bylaws which adversely affects the rights established under
Section 3.3 of the Bylaws.
(b) On or prior to May 8, 2010, in addition to any requirements of
law and any other provision of this Certificate or the Bylaws (and
notwithstanding the fact that a lesser percentage may be specified by law or
this Certificate or the Bylaws), at all times during which shares of any series
of Class B Common Stock are issued and outstanding, the approval of each
Qualifying Class B Holder shall be required to alter, amend, repeal, waive or
adopt any provision of the Bylaws which would reduce the restrictions on the
authority of the Corporation, or for the Corporation to permit its Controlled
Affiliates, to market and sell airline travel products and services other than
in an Unbiased Manner or modify the limitations in Section 2.1 of the Bylaws
relating to the sale of airline tickets in an Opaque Manner or in Section 2.2 of
the Bylaws.
(c) After May 8, 2010, in addition to any requirements of law and
any other provision of this Certificate or the Bylaws (and notwithstanding the
fact that a lesser percentage may be specified by law or this Certificate or the
Bylaws), at all times during which shares of any series of Class B Common Stock
are issued and outstanding, the approval of each holder of Class B Common Stock
shall be required to alter, amend, repeal, waive or adopt any provision of the
Bylaws which would reduce the restrictions on the authority of the Corporation,
or the Corporation to permit its Controlled Affiliates, to market and sell
airline travel products and services other than in an Unbiased Manner or modify
the limitations in Section 2.1 of the Bylaws relating to the sale of airline
tickets in an Opaque Manner or in Section 2.2 of the Bylaws; PROVIDED, that such
approval shall not be required if the holders of Class B Common Stock, together
with their Affiliates, cease to have aggregate Deemed Ownership equal to or
exceeding twenty percent (20%) of the then Corporate Capitalization.
ARTICLE X
LIMITATION OF DIRECTORS' LIABILITY
The personal liability of the directors of the Corporation is hereby
eliminated to the fullest extent permitted by the provisions of paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law, as the same may be
amended and supplemented. Any amendment or repeal of this Article by the
stockholders of the Corporation shall be prospective only and shall not
adversely affect any right or protection of a director of the Corporation
existing with respect to any act or omission occurring prior to the time of such
repeal or modification.
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ARTICLE XI
INDEMNIFICATION
Section 11.1 RIGHT TO INDEMNIFICATION. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (a "COVERED PERSON") who was or
is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "PROCEEDING"), by reason of the fact that he, or a Person for
whom he is the legal representative, is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or
agent of an Affiliate or another corporation or of a partnership, limited
liability company, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys' fees) reasonably incurred
by such Covered Person. Notwithstanding the preceding sentence, except as
otherwise provided in Section 11.3, the Corporation shall be required to
indemnify a Covered Person in connection with a Proceeding (or part thereof)
commenced by such Covered Person only if the commencement of such Proceeding (or
part thereof) by the Covered Person was authorized by the Board of Directors of
the Corporation.
Section 11.2 PREPAYMENT OF EXPENSES. The Corporation shall pay the expenses
(including attorneys' fees) reasonably incurred by a Covered Person in defending
any proceeding in advance of its final disposition, PROVIDED, HOWEVER, that, to
the extent required by law, such payment of expenses in advance of the final
disposition of the Proceeding shall be made only upon receipt of an undertaking
by the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under this
Article XI or otherwise.
Section 11.3 CLAIMS. If a claim for indemnification (following the final
disposition of such action, suit or proceeding) or advancement of expenses under
this Article XI is not paid in full within thirty (30) days after a written
claim therefor by the Covered Person has been received by the Corporation, the
Covered Person may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden
of proving that the Covered Person is not entitled to the requested
indemnification or advancement of expenses under applicable law.
Section 11.4 NONEXCLUSIVITY OF RIGHTS. The rights conferred on any Covered
Person by this Article XI shall not be exclusive of any other rights which such
Covered Person may have or hereafter acquire under any statute, provision of
this Certificate, the Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 11.5 OTHER SOURCES. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
its request as a director, officer, employee or agent of an Affiliate or another
corporation, partnership, limited liability company, joint venture, trust,
enterprise or nonprofit entity shall be reduced by any amount such Covered
Person may collect as indemnification or advancement of expenses from such other
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corporation, partnership, limited liability company, joint venture, trust,
enterprise or nonprofit entity.
Section 11.6 AMENDMENT OR REPEAL. Any repeal or modification of the
foregoing provision of this Article XI shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
Section 11.7 OTHER INDEMNIFICATION AND PREPAYMENT OF EXPENSES. This Article
XI shall not limit the right of the Corporation, to the extent and in the manner
permitted by law, to indemnify and to advance expenses to persons other than
Covered Persons when and as authorized by a majority of the entire Board of
Directors (without regard to vacancies) or by the action of a committee of the
Board or designated officers of the Corporation established by or designated in
resolutions approved by a majority of the entire Board of Directors (without
regard to vacancies); PROVIDED, HOWEVER, that, to the extent required by law,
any payment of expenses in advance of the final disposition of a Proceeding
shall be made only upon receipt of an undertaking by the person to repay all
amounts advanced if it should be ultimately determined that the person is not
entitled to be indemnified under this Article XI or otherwise.
Section 11.8 To the extent any approval of the Corporation is required
under Delaware law with respect to indemnification of, or advancement of
expenses to, a Covered Person or other person, such approval may only be granted
by a majority of the entire Board of Directors (without regard to vacancies) or
by the action of a committee of the Board or designated officers of the
Corporation established by or designated in resolutions approved by a majority
of the entire Board of Directors (without regard to vacancies).
ARTICLE XII
SECTION 203 OF THE GENERAL CORPORATION LAW
The Corporation shall not be governed by Section 203 of the General
Corporation Law ("SECTION 203"), and the restrictions contained in Section 203
shall not apply to the Corporation; PROVIDED, HOWEVER, that the Corporation
elects to be governed by Section 203 from and after the Trigger Date, and the
restriction contained in Section 203 shall apply to the Corporation from and
after such date.
ARTICLE XIII
CERTAIN FIDUCIARY DUTIES OF CERTAIN STOCKHOLDERS
Section 13.1. FREEDOM OF ACTION; CORPORATE OPPORTUNITIES.
(a) Without limiting subsection (c) of this Section 13.1, each
holder of Class B Common Stock as of the Restatement Date (whether or not such
holders own shares of Class B Common Stock thereafter) and each other holder of
Class B Common Stock and its respective Affiliates and Related Parties (other
than a Related Party that is employed by, or seconded to, the Corporation)
(collectively, the "PERMITTED PERSONS") may have any other business interests
and may engage in any other business or trade, profession or employment
whatsoever, on its own
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account, or in partnership with, or as an employee, officer, director or
stockholder of any other Person, and no Permitted Person shall be required to
devote its or his entire time to the business of the Corporation. Without
limiting the generality of the foregoing, each Permitted Person may (i) engage
in the same or similar activities or lines of business as the Corporation or any
of its Controlled Affiliates or develop or market any products or services that
compete, directly or indirectly, with those of the Corporation or any of its
Controlled Affiliates; (ii) do business with any client or customer of the
Corporation or any of its Controlled Affiliates; and (iii) hold Beneficial
Ownership of Securities of, or develop a business relationship with, any Person
engaged in the same or similar activities or lines of business as, or otherwise
in competition with, the Corporation or any of its Controlled Affiliates
(collectively, the interests, activities and relationships described in this
clause (a) are referred to as "PERMITTED ACTIVITIES").
(b) Without limiting subsection (c) of this Section 13.1, neither
the Corporation nor any holder of Class B Common Stock as of the Restatement
Date (whether or not such holders own shares of Class B Common Stock thereafter)
nor any other holder of Class B Common Stock nor any Affiliate thereof by virtue
of this Certificate shall have any rights in or to any Permitted Activity or the
income or profits derived therefrom, regardless of whether or not such Permitted
Activity was presented to a Permitted Person as a direct or indirect result of
its or his connection with the Corporation. Without limiting subsection (c) of
this Section 13.1, no Permitted Person shall have any obligation to present any
Permitted Activity to the Corporation, even if the Permitted Activity is one
that the Corporation might reasonably be deemed to have pursued or had the
ability or desire to pursue if granted the opportunity to do so and no Permitted
Person shall be liable to the Corporation or any holder of Class B Common Stock
(or any Affiliate or Related Party thereof) for breach of any fiduciary or other
duty by reason of the fact that a Permitted Person pursues or acquires such
business opportunity, directs such business opportunity to another Person or
fails to present such business opportunity, or information regarding such
business opportunity, to the Corporation.
(c) Without limiting the foregoing clauses (a) and (b) of this
Section 13.1, in the event that a director or officer of the Corporation who is
also a director, officer or employee of a Permitted Person acquires knowledge of
a Permitted Activity which may be a corporate opportunity for both the
Corporation or any of its Controlled Affiliates and such Permitted Person or its
Affiliates, such director or officer shall have fully satisfied and fulfilled
his fiduciary duty with respect to such corporate opportunity, and the
Corporation hereby renounces its interest in such business opportunity and
waives any claim that such business opportunity constituted a corporate
opportunity that should have been presented to the Corporation or any of its
Affiliates, if such director or officer acts in a manner consistent with the
following policy: a corporate opportunity offered to any person who is an
officer or director of the Corporation, and who is also an officer, director or
employee of a Permitted Person, shall belong to such Permitted Person, unless
such opportunity was offered to such person in writing expressly and solely in
his or her capacity as a director or officer of the Corporation. Any person
purchasing or otherwise acquiring any interest in shares of the capital stock of
the Corporation shall be deemed to have notice of and to have consented to this
Section 13.1.
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ARTICLE XIV
AMENDMENTS
Section 14.1 AMENDMENTS. The Corporation reserves the right to adopt,
repeal, alter, waive or amend any provision of this Certificate, in the manner
now or hereafter prescribed by the laws of the State of Delaware and this
Certificate, and all rights, preferences and privileges conferred on
stockholders, directors, officers, employees, agents and other persons in this
Certificate, if any, are granted subject to this reservation.
Section 14.2 REQUIRED APPROVALS.
(a) In addition to any requirements of law and any other
provisions of this Certificate (and notwithstanding the fact that a lesser
percentage may be specified by law or this Certificate), at all times during
which shares of any series of Class B Common Stock have their Voting Power
determined in accordance with Section 5.1(c) hereof, a Unanimous Qualified Class
B Approval shall be required (x) to alter, amend, waive, repeal or adopt any
provision of this Certificate which is inconsistent with any provision of
Sections 4.3, 5.1, Article VII, Article VIII, 9.2(a)(ii), 11.7, 11.8, 13.1 or
14.2 hereof or any of the definitions set forth in Article XV hereof to the
extent of their use therein, or (y) to form any Holding Company for the
Corporation that does not contain the governance provisions represented by the
sections delineated in the preceding clause (x) in its organizational documents;
PROVIDED, that such Unanimous Qualified Class B Approval shall not require the
approval of the holders of a series of Class B Common Stock if the proposed
action does not adversely modify or affect the then existing powers, preferences
or special rights of such series of Class B Common Stock.
(b) In addition to any requirements of law and any other
provisions of this Certificate (and notwithstanding the fact that a lesser
percentage may be specified by law or this Certificate), at all times during
which shares of any series of Class B Common Stock are issued and outstanding, a
Unanimous Class B Approval shall be required (x) to alter, amend, repeal, waive
or adopt any provision of this Certificate which would permit the Corporation or
any of its Controlled Affiliates, as applicable, to take any action that is
inconsistent with the provisions of Section 8.2(d) hereof or any of the
definitions set forth in Article XV hereof to the extent of their use therein,
or (y) to form any Holding Company for the Corporation that does not contain the
governance provisions represented by the section delineated in the preceding
clause (x) in its organizational documents.
(c) On or prior to May 8, 2010, in addition to any requirements of
law and any other provisions of this Certificate (and notwithstanding the fact
that a lesser percentage may be specified by law or this Certificate), at all
times during which shares of any series of Class B Common Stock are issued and
outstanding, the approval of each Qualifying Class B Holder shall be required
(x) to alter, amend, repeal, waive or adopt any provision of this Certificate
which would permit the Corporation or any of its Controlled Affiliates, as
applicable, to take any action that is inconsistent with the provisions of
Sections 9.2(b) or (c) hereof or any of the definitions set forth in Article XV
hereof to the extent of their use therein, or (y) to form any Holding Company
for the Corporation that does not contain the governance provisions represented
by the sections delineated in the preceding clause (x) in its organizational
documents.
(d) After May 8, 2010, in addition to any requirements of law and
any other provisions of this Certificate (and notwithstanding the fact that a
lesser percentage may be specified by law or this Certificate), at all times
during which shares of any series of Class B
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Common Stock are issued and outstanding, the approval of each holder of Class B
Common Stock shall be required (x) to alter, amend, repeal, waive or adopt any
provision of this Certificate which would permit the Corporation or any of its
Controlled Affiliates, as applicable, to take any action that is inconsistent
with the provisions of Sections 9.2(b) or (c) hereof or any of the definitions
set forth in Article XV hereof to the extent of their use therein, or (y) to
form any Holding Company for the Corporation that does not contain the
governance provisions represented by the sections delineated in the preceding
clause (x) in its organizational documents; PROVIDED, that such approval shall
not be required if the holders of Class B Common Stock, together with their
Affiliates, cease to have aggregate Deemed Ownership equal to or exceeding
twenty percent (20%) of the then Corporate Capitalization.
(e) In addition to any requirements of law and any other
provisions of this Certificate (and notwithstanding the fact that a lesser
percentage may be specified by law or this Certificate), the approval of holders
of each adversely affected series of Class B Common Stock shall be required
(which approval shall be obtained by the holders of a majority of the issued and
outstanding shares of each such series) (x) to alter, amend, repeal or waive the
requirements or to adopt any provision of this Certificate which adversely
affects the powers, preferences or special rights of such series, including
without limitation, any adverse effect on the rights of any series of Class B
Common Stock to elect or otherwise act with respect to specified director
positions pursuant to Section 7.1(a) hereof or any of the definitions set forth
in Article XV hereof to the extent of their use therein, or (y) to form any
Holding Company for the Corporation that does not contain the governance
provisions represented by the section delineated in the preceding clause (x) in
its organizational documents.
ARTICLE XV
DEFINITIONS
For purposes of this Certificate, the following terms have the meanings set
forth below:
"AFFILIATE" shall mean, in respect of any specified Person, a Person that
directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, the Person specified; PROVIDED,
HOWEVER, that notwithstanding the foregoing, no holder of Class B Common Stock
shall be deemed to be an Affiliate of any other holder of Class B Common Stock
due solely to being a party to the Stockholders Agreement, and PROVIDED,
FURTHER, that notwithstanding the foregoing, no holder of Class B Common Stock
as of the date hereof, or any affiliate thereof, shall be deemed to be an
Affiliate of the Corporation or Orbitz LLC as a result of the existence or
continuation of the board positions, relationships with, or equity ownership of
the Corporation or any of its Controlled Affiliates as such exist on the date
hereof.
"AIRLINE" shall mean each of American Airlines, Inc., Continental Airlines,
Inc., Delta Air Lines, Inc., Northwest Airlines, Inc., United Air Lines, Inc. or
any of the respective corporate or non-corporate successors of any of the
foregoing whether by virtue of a merger, acquisition, consolidation,
reorganization, sale or other business combination or other type of transaction
or series of related transactions.
"AIR AFFILIATE" shall have the meaning set forth in the definition of
Qualifying Class B Holder."
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"AIRLINE INFORMATION" shall mean multiple airline schedules, fares, rules,
seat availability or other flight information.
"AIRLINE SPONSOR" has the meaning set forth in the definition of "Unbiased
Manner."
"BENEFICIAL OWNERSHIP" shall mean, in respect of any Securities, those
Securities that a Person or any of its Affiliates is deemed to "beneficially
own" within the meaning of Rule 13d-3 under the Securities and Exchange Act of
1934, as amended.
"BOARD" shall have the meaning set forth in Section 7.1(a) hereof.
"BOARD OF DIRECTORS" shall have the meaning set forth in Section 7.1(a)
hereof.
"BREACHING PARTY" shall have the meaning set forth in the definition of
"Triggering Default".
"BYLAWS" shall have the meaning set forth in Section 4.3(a) hereof.
"CERTIFICATE" shall have the meaning set forth in Section 4.1(b)(i) hereof.
"CHARTER ASSOCIATE AGREEMENTS" shall mean the Second Amended and Restated
Charter Associate Agreements entered into by and between the Corporation and
each holder of Class B Common Stock (or an Affiliate of such holder), as amended
from time to time.
"CLASS A COMMON STOCK" shall have the meaning set forth in Section
4.1(b)(i)(A) hereof.
"CLASS A DIRECTORS" shall have the meaning set forth in Section 7.3 hereof.
"CLASS B AUTOMATIC CONVERSION TIME" shall have the meaning set forth in
Section 6.1(e) hereto.
"CLASS B COMMON STOCK" shall have the meaning set forth in Section
4.1(b)(i)(B) hereof.
"CLASS B DIRECTORS" shall have the meaning set forth in Section 7.1(a)
hereof.
"CLASS B DIRECTORS TRIGGERING EVENT" shall have the meaning set forth in
Section 7.2(a) hereof.
"COMMON STOCK" shall have the meaning set forth in Section 4.1(a) hereof.
"CONTROL" shall mean, with respect to a particular Person, the possession,
directly or indirectly, of the power, whether or not exercised, to direct or
cause the direction of management or policies of such Person (whether through
ownership of Voting Securities, partnership interests or other ownership
interests, by contract or otherwise).
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"CONTROLLED" shall mean, with respect to a particular Person, a Person who
is under the Control of another Person.
"CONTROLLED AFFILIATE" shall mean, with respect to a specified Person, a
Person that directly or indirectly, through one or more intermediaries, is
Controlled by the Person specified. For the avoidance of doubt, the term
"Controlled Affiliate" shall include, with respect to the Corporation, all of
its Subsidiaries or any successor entities thereto.
"CONVERTED CLASS B COMMON STOCK" shall have the meaning set forth in
Section 6.1(e) hereof.
"CORPORATE CAPITALIZATION" shall mean the aggregate number of shares of all
classes or series of Common Stock of the Corporation issued and outstanding as
of such date.
"COVERED PERSON" shall have the meaning set forth in Section 11.1 hereof.
"CUSTOMER" shall mean any (i) individual consumer, (ii) business traveler
or (ii) entity that uses the Corporation's or any of its Controlled Affiliates'
Internet site to make travel decisions or purchase travel products or services
on behalf of its employees, agents, contractors or authorized representatives
for such entity's business travel purposes.
"CUSTOMER REQUEST" shall mean an informed affirmative request by a Customer
to receive information about a specific promotion or sale or certain fares or
rates of an airline carrier, to the exclusion of other airline carriers.
"DEEMED OWNERSHIP" shall mean the aggregate number of shares of any class
or series of Common Stock then held by such Person. For purposes of this
Certificate, the "deemed owner" of Common Stock shall mean (i) the Person whose
name or names in which shares are registered on the books of the Corporation or
(ii) in the case of a beneficial owner of such shares which is the customer of a
broker or dealer who is named (and/or whose intermediary is named) as the record
owner of such shares, the Person who is such beneficial owner.
"DISPUTE" shall have the meaning set forth in Section 8.2(d)(iii).
"HOLDING COMPANY" shall mean one or more corporations or other entities
that Controls the Corporation.
"INDIVIDUAL CLASS B DIRECTOR TRIGGERING EVENT" shall have the meaning set
forth in Section 7.2(b) hereof.
"INDIVIDUAL TRIGGERING EVENT" shall have the meaning set forth in Section
5.1(e) hereof.
"INSTITUTIONAL INVESTOR" shall mean a bank, investment company, insurance
company, as those terms are used in Rule 13(d)-1(b) of the Securities and
Exchange Act of 1934, as amended, or similar financial institution that does not
acquire Voting Securities for the purpose of or
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having the effect of changing the control of the Corporation or in connection
with or as a participant in any transaction having such purpose or effect.
"MAJORITY OF DISINTERESTED DIRECTORS" shall mean a number of directors
constituting not less than fifty and one-tenth percent (50.1%) of the number of
directors on the Board of Directors, as such number of directors may be adjusted
from time to time pursuant to Section 7.1(b) hereof, without taking into account
any vacancies thereon, and excluding from such calculation of the Board of
Directors, directors who are Related Parties of the Person (or any Affiliate of
such Person) that is a party to the particular agreement or type of transaction
being considered by the Board (other than solely as a result of such Person's or
its Affiliates' ownership of Securities of the Corporation or any of its
Controlled Affiliates).
"MANAGEMENT DIRECTOR" shall have the meaning set forth in Section 7.1(a)
hereof.
"O HOLDINGS INC." shall mean O Holdings Inc., a Delaware corporation.
"OPAQUE MANNER" shall mean the provision to a Person through the Internet
of information, reservations, booking and ticketing services concerning airlines
where the Person is unable to (i) identify the specific airline offering the
airline travel product or service or (ii) determine the specific arrival or
departure time until after the Person has purchased the airline travel product
or service.
"ORBITZ LLC" shall mean "Orbitz, LLC," a Delaware limited liability
company.
"PERMITTED ACTIVITIES" shall have the meaning set forth in Section 13.1(a)
hereof.
"PERMITTED PERSONS" shall have the meaning set forth in Section 13.1(a)
hereof.
"PERSON" shall mean any individual, entity, firm, corporation, partnership,
association, limited liability company, joint-stock company, trust, or
unincorporated organization.
"PLEDGE" shall mean to pledge, mortgage, grant a security interest in,
hypothecate or otherwise encumber assets of Securities (including, without
limitation, all or a portion of Class A Common Stock, any series of Class B
Common Stock, and Preferred Stock).
"PREFERRED STOCK" shall have the meaning set forth in Section 4.1(a)
hereof.
"PRIOR COMMERCIAL AGREEMENT" shall have the meaning set forth in the
definition of "Qualifying Class B Holder."
"PROCEEDING" shall have the meaning set forth in Section 11.1 hereof.
"QUALIFIED AFFILIATE" shall mean an Affiliate of such Person (i) which is,
directly or indirectly, the beneficial owner of not less than a majority of the
economic interest in such Person's fully diluted equity capitalization or (ii)
as to which such Person or its Affiliates is, directly or indirectly, the
beneficial owner of not less than a majority of the economic interest in such
Affiliate's fully diluted equity capitalization.
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"QUALIFIED CLASS B APPROVAL" shall mean the approval of the holders of
two-thirds of the Class B Common Stock then outstanding the Voting Power of
which is determined in accordance with Section 5.1(c) hereof.
"QUALIFIED IPO" shall mean the initial BONA FIDE, firm commitment
underwritten public offering of the Common Stock pursuant to a registration
statement declared effective under the Securities Act, PROVIDED that such
offering results in a public offering price of not less than $5.00 per share and
results in gross proceeds to the Corporation of not less than $50,000,000.
"QUALIFIED PREFERRED STOCK" shall have the meaning set forth in Section
4.3(c) hereof.
"QUALIFIED SECURITIES" shall have the meaning set forth in Section 4.3(c)
hereof.
"QUALIFIED TRANSFER" shall mean with respect to shares of Class B Common
Stock: (i) a Transfer (x) approved by a Majority of Disinterested Directors, (y)
to any Qualified Affiliate of the proposed transferor of Class B Common Stock
(so long as such holder of Class B Common Stock Transfers all but not less than
all of its outstanding shares of Class B Common Stock to such Qualified
Affiliate), or (z) subject to Section 4 of the Stockholders Agreement, by a
holder of Class B Common Stock to another holder of Class B Common Stock and
(ii) a bona fide pledge or hypothecation of Common Stock to an Institutional
Investor or a securities firm of national repute, PROVIDED the instrument
establishing such pledge or hypothecation provides that if the pledgee seeks to
foreclose upon the pledge or hypothecation or otherwise exercise Voting Power as
to such shares, the pledgee shall give the Corporation prior notice thereof.
Upon receipt of such notice by the Corporation (or the Corporation otherwise
becoming aware of such action), a Transfer of such Common Stock that is not a
Qualified Transfer shall be deemed to have occurred for purposes of this
Certificate including, without limitation, Section 6.1(d) hereof, as of the
earlier of (i) the date of such foreclosure or (ii) the exercise of Voting Power
as to such shares.
"QUALIFYING CLASS B HOLDER" shall mean a holder of Class B Common Stock
or its Affiliate which as of the Restatement Date is party to the Charter
Associate Agreement (its "Air Affiliate") (i) that is, or within the six (6)
months prior to the approval being sought was, a party to a commercial
agreement with the Corporation or its Subsidiaries whereby such holder of
Class B Common Stock or its Air Affiliate agreed to provide the Corporation
or its Subsidiaries with published fare and inventory information for air
transportation for inclusion and sale on the Corporation's or its Controlled
Affiliate's Internet site, PROVIDED, HOWEVER, this limitation will not apply
if such commercial agreement was terminated due to the occurrence of an event
of default with respect to the Corporation or its Subsidiary under such
commercial agreement and such event of default is not cured within forty-five
(45) days following written notice by the applicable holder of Class B Common
Stock or its Air Affiliate to the Corporation or the applicable Subsidiary,
identifying such breach, and following such 45th day (but in no event more
than thirty (30) days after such 45th day), the holder of Class B Common
Stock or its Air Affiliate determines to exercise its right of termination or
(ii) that (together with its Affiliates) has Deemed Ownership of at least
2,421,360 shares (as adjusted to give effect to any stock split, stock
dividend, reclassification, recapitalization or similar event), in the
aggregate, of (a) Class B Common Stock and (b) Class A Common Stock received
pursuant to Section 6.1(a) hereof. For the avoidance of doubt, the proviso
set forth in clause (i) above shall not be deemed to alter, amend, repeal or
waive any rights or remedies such holder of Class B Common Stock or its Air
Affiliate may be entitled to under such commercial agreement. Additionally,
prior to a holder of Class B Common Stock or its Air Affiliate being deemed
not to be a Qualifying Class B Holder by reason of noncompliance with clause
(i) above, such holder of Class B Common Stock or its Air Affiliate shall
have been given by the Corporation or its Subsidiary the opportunity to
re-enter into its most recently effective commercial agreement (the "PRIOR
COMMERCIAL AGREEMENT") with the Corporation or its Subsidiary whereby such
holder of Class B Common Stock or its Air Affiliate agreed to provide the
Corporation or such Subsidiary with published fare and inventory information
for air transportation for inclusion and sale on the Corporation's or its
Countrolled Affiliate's Internet site, and, such holder of Class B Common
Stock or its Air Affiliate shall be deemed to have accepted such opportunity
(and to be in compliance with clause (i) above for all purposes hereunder)
if, after being provided with a counterpart signature page to the Prior
Commercial Agreement already executed by the Corporation or such Subsidiary,
such holder of Class B Common Stock or its Air Affiliate executes and
delivers such signature page to the Corporation or such Subsidiary within ten
(10) days of such receipt from the Corporation or such Subsidiary.
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"REINFORCED QUALIFIED CLASS B APPROVAL" shall mean the approval of
two-thirds of the series of Class B Common Stock that then have shares
outstanding the Voting Power of which is determined in accordance with Section
5.1(c) hereof. An approval of each such series shall be obtained by the holders
of a majority of the issued and outstanding shares of such series (for example,
if there are five outstanding series of Class B Common Stock the Voting Power of
which is determined in accordance with Section 5.1(c) hereof, the approval of
the holders of a majority of the issued and outstanding shares of four series
must be obtained to constitute a Reinforced Qualified Class B Approval).
"RELATED PARTY" shall mean, with respect to any Person who is not an
individual, (i) a director, officer, employee of such Person, including with
respect to a director, any individual who is elected a director by such holder
of Class B Common Stock, or (ii) a partner, member or stockholder of such
Person, which partner, member or stockholder holds at least ten percent (10%) of
the Securities of such Person.
"RESTATEMENT DATE" shall mean the date of this Certificate, which is also
the date of the consummation of the Qualified IPO.
"SECTION 203" shall have the meaning set forth in Article XII hereof.
"SECURITIES" shall mean, with respect to: (a) any corporation, any of the
equity securities of such corporation and any obligations to purchase or
options, rights or warrants to acquire such equity securities, but excluding
debt instruments which are not convertible into or exchangeable for equity
securities; and (b) any partnership, limited liability company, association,
joint-stock company, trust, fund or any organized group or person whether
incorporated or not, any ownership interest or right or obligation to acquire
such ownership interest, whether or not evidenced by a written instrument, but
excluding debt instruments which are not convertible into or exchangeable for
such ownership instruments.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SERIES A PREFERRED STOCK" shall have the meaning set forth in Section
4.1(d) hereof.
"SERIES B-AA COMMON STOCK" shall have the meaning set forth in Section
4.1(b)(ii)(A) hereof.
"SERIES B-AA DIRECTOR" shall have the meaning set forth in Section 7.1(a)
hereof.
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"SERIES B-CO COMMON STOCK" shall have the meaning set forth in Section
4.1(b)(ii)(B) hereof.
"SERIES B-CO DIRECTOR" shall have the meaning set forth in Section 7.1(a)
hereof.
"SERIES B-DL COMMON STOCK" shall have the meaning set forth in Section
4.1(b)(ii)(C) hereof.
"SERIES B-DL DIRECTOR" shall have the meaning set forth in Section 7.1(a)
hereof.
"SERIES B-NW COMMON STOCK" shall have the meaning set forth in Section
4.1(b)(ii)(D) hereof.
"SERIES B-NW DIRECTOR" shall have the meaning set forth in Section 7.1(a)
hereof.
"SERIES B-UA COMMON STOCK" shall have the meaning set forth in Section
4.1(b)(ii)(E) hereof.
"SERIES B-UA DIRECTOR" shall have the meaning set forth in Section 7.1(a)
hereof.
"SERVICE FEE REDUCTION" has the meaning set forth in the definition of
"Unbiased Manner."
"STOCKHOLDERS AGREEMENT" shall mean that certain Amended and Restated
Stockholders Agreement dated as of the Restatement Date, by and among the
Corporation and the other signatories thereto, as amended from time to time.
"SUBSIDIARY" of any Person shall mean any other Person of which such Person
then has Beneficial Ownership, directly or indirectly, of a majority of such
other Person's Voting Securities. For the avoidance of doubt, the term
"Subsidiaries" shall include with respect to the Corporation, O Holdings Inc.
and Orbitz LLC or any successor entity thereto.
"TRANSFER" shall mean, with respect to assets or Securities (including,
without limitation, the Class A Common Stock, any series of Class B Common Stock
and Preferred Stock, to issue, sell, assign, transfer, lease, Pledge or dispose
of, including by merger, consolidation, liquidation, dissolution, dividend,
distribution or otherwise, (i) such assets or Securities or (ii) interests in
any Person that holds the subject assets or Securities such that such Person is
no longer a Qualified Affiliate of the transferor, in each case, whether made
directly or indirectly, voluntarily or involuntarily, absolutely or
conditionally, or by operation of law or otherwise.
"TRANSFER AGENT" shall have the meaning set forth in Section 6.1(b) hereof.
"TRIGGER DATE" shall have the meaning set forth in Section 5.1(d) hereof.
"TRIGGERING DEFAULT" shall mean the intentional and systematic breach by a
holder of Class B Common Stock or any of its Affiliates (a "BREACHING PARTY") of
any obligation under (i)
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Sections 2.1(a) or 2.1(b) of the Charter Associate Agreement or any analogous
sections of any other commercial agreement with the Corporation or its
Subsidiaries whereby such holder of Class B Common Stock or its Air
Affiliate agreed to provide the Corporation with published fare and inventory
information for air transportation for inclusion and sale on the Corporation's
Internet site, or (ii) Section 8 of the Stockholders Agreement, if such breach
is not cured within forty-five (45) days following written notice by the Board
of Directors to such holder at its address specified in the Corporation's stock
ledger, identifying such breach, and following such 45th day (but in no event
more than thirty (30) days after such 45th day), the Board of Directors
determines that such breach has not been cured. For purposes of this definition,
"cured" shall mean, in the case of clause (i) above, the discontinuation by the
Breaching Party of the actions or practice resulting in the noticed breach of
its obligations under Sections 2.1(a) and 2.1(b) of the Charter Associate
Agreement, and, in the case of clause (ii) above, cured in accordance with
Section 8 of the Stockholders Agreement.
"TRIGGERING EVENT" shall have the meaning set forth in Section 5.1(d)
hereof.
"UNANIMOUS CLASS B APPROVAL" shall mean the approval of the holders of each
series of Class B Common Stock that then has shares outstanding. An approval of
each such series shall be obtained by the holders of eighty-five percent (85%)
of the issued and outstanding shares of such series.
"UNANIMOUS QUALIFIED CLASS B APPROVAL" shall mean the approval of the
holders of each series of Class B Common Stock that then has shares outstanding
the Voting Power of which is determined in accordance with Section 5.1(c)
hereof. An approval of each such series shall be obtained by the holders of a
majority of the issued and outstanding shares of such series.
"UNBIASED MANNER" shall mean the display of Airline Information in an
integrated display, with the order of information in such integrated display
determined on the basis of service criteria that do not reflect airline
carrier identity and that are consistently applied to all airline carriers
and to all markets and, for the avoidance of doubt, such order of information
shall not be determined on the basis of any incentive payments or
arrangements, commissions, fees or other consideration received directly or
indirectly by or on behalf of the Corporation or its Controlled Affiliates;
PROVIDED, HOWEVER, that such order of information may take into account a
reduction to the service fee charged by the Corporation or its Controlled
Affiliates to Customers purchasing an airline travel product (the "SERVICE
FEE REDUCTION") if the Service Fee Reduction is paid or otherwise funded by
such airline (the "AIRLINE SPONSOR") pursuant to an agreement between the
Airline Sponsor and the Corporation or its Controlled Affiliates so long as
(a) the Airline Sponsor reimburses the Corporation or its Controlled
Affiliates for the full cost of the Service Fee Reduction; (b) all other
airline carriers have the same opportunity to provide the Service Fee
Reduction to their
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respective Customers; (c) in the air display, the Corporation or its
Controlled Affiliates notifies the Customer that the total fare displayed
reflects the Service Fee Reduction; and (d) Service Fee Reductions are not
eligible for credit toward the Airline Sponsor's marketing support
obligations as defined in the respective Charter Associate Agreement or
successor commercial agreement with the Corporation or any Controlled
Affiliate.
"VOTING POWER" shall mean the power to direct, directly or indirectly (by
contract, arrangement or understanding), the vote of a Security.
"VOTING SECURITIES" shall mean, with respect to a Person, all Securities of
such Person then outstanding and normally entitled to vote in the election of
directors or members of a similar governing body (irrespective of whether or not
at the time stock of any other class or classes shall have or might have Voting
Power by reason of the happening of any contingency).
"WORLDSPAN" shall have the meaning set forth in Section 8.2(d)(iii).
"WORLDSPAN AGREEMENT" shall have the meaning set forth in Section
8.2(d)(iii).
7. This Amended and Restated Certificate of Incorporation has been duly
adopted by the Board of Directors of the Corporation and consented to in writing
and authorized by the holders of the issued and outstanding stock entitled to
vote thereon.
8. This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the applicable provisions of Sections 228, 242 and
245 of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, Orbitz, Inc. has caused this Amended and Restated
Certificate of Incorporation to be executed by the following authorized officer
of said corporation on this ___ day of ________, 2003.
ORBITZ, INC., a Delaware corporation
------------------------------------
Gary R. Doernhoefer
Secretary
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