EXHIBIT 2.6 - STOCKHOLDER AGREEMENT

 

 

 

                                                                Exhibit 2.6

 

                             STOCKHOLDER AGREEMENT

 

         STOCKHOLDER AGREEMENT (this "Agreement"), dated September 29, 2004, by

and among Cendant Corporation, a Delaware corporation ("Parent"), Robertson

Acquisition Corporation, a Delaware corporation and an indirect wholly-owned

subsidiary of Parent (the "Purchaser") and United Air Lines, Inc.

("Stockholder" or "United").

 

         WHEREAS, Stockholder is, as of the date hereof, the record and

beneficial owner of the number of shares of Series B-UA Common Stock, par value

$0.001 (the "Class B Common Stock" and, together with the class A common stock

par value $0.001 ("Class A Common Stock") of Orbitz Inc., a Delaware

corporation (the "Company"), the "Common Stock"), of the Company, set forth

opposite the name of Stockholder on Schedule I hereto;

 

         WHEREAS, Parent, the Purchaser and the Company have entered into an

Agreement and Plan of Merger, dated as of the date hereof, in the form attached

hereto as Exhibit A (the "Merger Agreement"), which provides, among other

things, for the Purchaser to conduct tender offers for all of the issued and

outstanding shares of the Class A Common Stock (the "Class A Offer") and all of

the issued and outstanding shares of the Class B Common Stock (the "Class B

Offer") and the merger of the Purchaser with and into the Company with the

Company continuing as the surviving corporation (the "Merger") upon the terms

and subject to the conditions set forth in the Merger Agreement (capitalized

terms used herein without definition shall have the respective meanings

specified in the Merger Agreement as of the date hereof);

 

         WHEREAS, simultaneously with the execution of this Agreement, each of

American Airlines, Inc., Continental Airlines, Inc., Delta Air Lines, Inc. and

Northwest Airlines, Inc. (each, an "Other Stockholder") are entering into a

Stockholder Agreement with Parent and Purchaser, dated as of the date hereof,

in the forms attached hereto as Exhibits B(aa), B(co), B(dl) and B(nw), as

applicable (each such Stockholder Agreement, an "Other Stockholder Agreement");

 

         WHEREAS, simultaneously with the execution of this Agreement, Jeffrey

Katz is entering into a Stockholder Agreement with Parent and Purchaser, dated

as of the date hereof, in the form attached hereto as Exhibit C (the "Katz

Agreement"); and

 

         WHEREAS, as a condition to the willingness of Parent and the Purchaser

to enter into the Merger Agreement and as an inducement and in consideration

therefor, Stockholder has agreed to enter into this Agreement.

 

         NOW, THEREFORE, in consideration of the foregoing and the mutual

covenants and agreements set forth herein and in the Merger Agreement, and

intending to be legally bound hereby, the parties hereto agree as follows

 

         SECTION 1. Bankruptcy Court Approval. This Agreement shall not become

effective with respect to or binding upon Stockholder, and none of the

representations, warranties, covenants or agreements of Stockholder contained

in this Agreement shall be deemed to be given, true or correct (in the case of

representations and warranties) or made (in the case of covenants and

agreements), nor shall Stockholder be entitled to any benefits hereunder, until

the date on which this Agreement, Stockholder's merger consent and the

transactions and other consents and agreements contemplated hereby and thereby

have been approved pursuant to an order of the United States Bankruptcy Court,

Northern District of Illinois, Eastern Division (the "Bankruptcy Court") and

entered on the docket, with respect to the reorganization cases being jointly

administered under the caption In re: UAL Corporation, et al., Case No.

02-48191 (such approval, the "Bankruptcy Court Approval").

 

         SECTION 2. Representations and Warranties of the Stockholder.

Stockholder hereby represents and warrants to Parent and the Purchaser as

follows:

 

                  (a) Stockholder (i) is the record and beneficial owner of the

shares of Common Stock (collectively with any shares of Common Stock which such

Stockholder may acquire at any time in the future during the term of this

Agreement are collectively referred to herein as the "Shares") set forth

opposite Stockholder's name on Schedule I to this Agreement and (ii) neither

holds nor has any beneficial ownership interest in any option (including any

granted pursuant to a Company Option Plan), or warrant to acquire shares of

Common Stock or other right or security convertible into or exercisable or

exchangeable for shares of Common Stock. Stockholder does not beneficially own

any shares of Class A Common Stock.

 

                  (b) Each of this Agreement, the Written Consent of Holder of

Class B Common Stock of Stockholder approving the Merger under Section 8.2(a)

and Section 8.2(b) of the Company Certificate, the Written Consent Qualifying

Class B Holder of Stockholder approving the Merger under Section 8.2(c) of the

Company Certificate (collectively, the "Written Consents") and the Company

Stockholders Agreement Waiver (as defined in Section 7(c)) in each case

executed by Stockholder prior to or concurrently with this execution of this

Agreement has been validly executed and delivered by Stockholder and

constitutes the valid and binding obligation of Stockholder, enforceable

against such Stockholder in accordance with its terms, except that the

availability of the remedy of specific performance or injunctive or other forms

of equitable relief may be subject to equitable defenses and would be subject

to the discretion of the court before which any proceeding therefor may be

brought.

 

                  (c) Neither the execution and delivery of this Agreement, the

Written Consents or the Company Stockholders Agreement Waiver by Stockholder

nor the consummation by Stockholder of the transactions contemplated hereby or

thereby will result in a violation of, or a default under, or conflict with,

any contract, trust, commitment, agreement, understanding, arrangement or

restriction of any kind to which Stockholder is a party or by which Stockholder

or Stockholder's assets are bound, other than the Amended and Restated

Stockholders Agreement, dated December 19, 2003, as amended by Amendment No. 1

to the Amended and Restated Stockholder Agreement dated April 14, 2004(the

"Company Stockholders Agreement") (in connection therewith, assuming the

Bankruptcy Court Approval is obtained, any consent required thereunder has been

obtained pursuant to the Company Stockholder Agreement Waiver or otherwise on

or prior to the date hereof). The consummation by Stockholder of the

transactions contemplated hereby or by the Written Consents or the Company

Stockholders Agreement Waiver will not (i) violate any provision of any

judgment, order, decree applicable to Stockholder or (ii) require any consent,

approval, or notice under any statute, law, rule or regulation applicable to

Stockholder other than (x) as required under the Exchange Act and the rules and

regulations promulgated thereunder and (y) where the failure to obtain such

consents or approvals or to make such notifications, would not, individually or

in the aggregate, prevent or materially delay the performance by Stockholder of

any of its obligations under this Agreement.

 

                  (d) Stockholder is an entity duly organized and validly

existing under the laws of the state in which it is incorporated or

constituted, and such Stockholder has all requisite corporate power and

authority to execute and deliver this Agreement and to consummate the

transactions contemplated hereby, and has taken all necessary corporate action

to authorize the execution, delivery and performance by Stockholder of this

Agreement.

 

                  (e) The Shares and the certificates, if any, representing the

Shares owned by Stockholder are now, and at all times during the term hereof

will be, held by Stockholder, by a nominee or custodian for the benefit of

Stockholder or by the depository under the Offers, free and clear of all liens,

claims, security interests, proxies, voting trusts or agreements, options,

rights, understandings or arrangements or any other encumbrances or

restrictions whatsoever on title, transfer, or exercise of any rights of a

shareholder in respect of such Shares (collectively, "Encumbrances"), except

for (i) any such Encumbrances arising hereunder or under the Company

Stockholders Agreement (in connection therewith any restrictions on transfer or

any other Encumbrances have been waived by appropriate consent), (ii) any

rights, agreements, understandings or arrangements which represent a financial

interest in cash received upon sale of the Shares and (iii) Encumbrances

imposed by federal or state securities laws (collectively, "Permitted

Encumbrances").

 

                  (f) Stockholder (i) does not own (and has not owned) any

stock (or any right to acquire stock), security, or other interest (or any

right to acquire any capital stock, security or other interest) of SAM

Investments LDC, a Cayman Islands Company ("SAM"), and (ii) does not own (and

has not owned) any bonds, debentures, notes or other indebtedness of SAM.

Except for the Stock Purchase Agreement, dated November 25, 2003, by and among

American Airlines, Inc., Continental Airlines, Inc., Omicron Reservations

Management, Inc., Northwest Airlines, Inc., UAL Loyalty Services, Inc. and SAM,

no agreements have been entered into between Stockholder (or any of its

affiliates), on the one hand, and SAM (or any of its affiliates), on the other

hand. Since the closing of the Stock Purchase Agreement, neither Stockholder

nor any of its affiliates have owned any shares of non-voting stock of the

Company.

 

         SECTION 3. Representations and Warranties of Parent and the

Purchaser. Each of Parent and the Purchaser hereby, jointly and severally,

represents and warrants to Stockholder as follows:

 

                  (a) Each of Parent and the Purchaser is a corporation duly

organized, validly existing and in good standing under the laws of the State of

Delaware, and each of Parent and the Purchaser has all requisite corporate

power and authority to execute and deliver this Agreement, each Other

Stockholder Agreement, the Katz Agreement and the Merger Agreement and to

consummate the transactions contemplated hereby and thereby, and has taken all

necessary corporate action to authorize the execution, delivery and performance

of this Agreement, each Other Stockholder Agreement, the Katz Agreement and the

Merger Agreement.

 

                  (b) This Agreement, each Other Stockholder Agreement, the

Katz Agreement and the Merger Agreement have been duly authorized, executed and

delivered by each of Parent and the Purchaser, and constitute the valid and

binding obligations of each of Parent and the Purchaser, enforceable against

each of them in accordance with their terms, except (i) as limited by

applicable bankruptcy, insolvency, reorganization, moratorium and other laws of

general application affecting enforcement of creditors' rights generally and

(ii) the availability of the remedy of specific performance or injunctive or

other forms of equitable relief may be subject to equitable defenses and would

be subject to the discretion of the court before which any proceeding therefor

may be brought.

 

                  (c) Neither the execution and delivery of this Agreement, the

Merger Agreement, any Other Stockholder Agreement or the Katz Agreement by each

of Parent and Purchaser nor the consummation by Parent and Purchaser of the

transactions contemplated hereby or thereby will result in a violation of, or a

default under, any contract, trust, commitment, agreement, understanding,

arrangement or restriction of any kind to which either Parent or Purchaser is a

party or by which either Parent or Purchaser or their respective assets are

bound. The consummation by Parent and Purchaser of the transactions

contemplated by this Agreement, the Merger Agreement, any Other Stockholder

Agreement and the Katz Agreement will not (i) violate any provision of any

judgment, order or decree applicable to Parent or Purchaser or (ii) require any

consent, approval or notice under any statute, law, rule or regulation

applicable to either Parent or Purchaser, other than (x) filings under the

Exchange Act and the rules and regulations promulgated thereunder and (y) where

the failure to obtain such consents or approvals or to make such notifications,

would not, individually or in the aggregate, prevent or materially delay the

performance by either Parent or Purchaser of any of their obligations under

this Agreement, each Other Stockholder Agreement, the Katz Agreement and the

Merger Agreement.

 

         SECTION 4. Tender of the Shares.

 

                  (a) Upon obtaining Bankruptcy Court Approval as required by

Section 1 of this Agreement, Stockholder hereby agrees that it shall promptly

(and in any event no later than the first business following obtaining the

Bankruptcy Court Approval) irrevocably tender (and deliver any certificates

evidencing) its Shares, or cause its Shares to be irrevocably tendered, into

the Class B Offer free and clear of all Encumbrances (other than Permitted

Encumbrances); provided that Parent and Purchaser agree that Stockholder may

withdraw its Shares from the Class B Offer at any time following the

termination of this Agreement or as otherwise provided pursuant to Section 10

hereof.

 

                  (b) Stockholder's counsel shall be given a reasonable

opportunity to review the Offer Documents relating to the Class B Offer before

it is commenced and Parent and Purchaser shall give due consideration to all

reasonable additions, deletions or changes suggested thereto. Parent and

Purchaser agree to provide the Stockholder and its counsel in writing with any

comments, whether written or oral, that Parent, Purchaser or their counsel may

receive from time to time from the SEC or its staff with respect to the the

Offer Documents promptly after Parent's or Purchaser's, as the case may be,

receipt of such comments, and any written or oral responses thereto.

Stockholder and its counsel shall be given a reasonable opportunity to review

any such written responses and Parent and Purchaser shall give due

consideration to all reasonable additions, deletions or changes suggested

thereto by the Stockholder and its counsel.

 

                  (c) If the Offers are terminated or withdrawn by the

Purchaser, or the Merger Agreement is terminated prior to the purchase of

Shares in the Offers, Parent and Purchaser shall promptly return, and shall

cause any depository or paying agent, including the Paying Agent, acting on

behalf of Parent and Purchaser, to return all tendered Shares to the registered

holders of the Shares tendered in the Offers.

 

         SECTION 5. Stockholder Acknowledgements. Stockholder acknowledges as

follows:

 

                  (a) The obligations of Stockholder set forth under Section 8

of the Company Stockholders Agreement, including but not limited to the

obligation to continue to be a party to and perform its obligations under the

Charter Associate Agreement to which such Stockholder is a party, shall remain

in full force and effect following the termination of the Company Stockholders

Agreement until December 18, 2005, but subject to the terms and conditions

contained in such Charter Associate Agreement (provided that any notice of

termination pursuant to Section 6.1 thereof will not be effective prior to

December 18, 2005).

 

                  (b) The consummation of the transactions contemplated by the

Merger Agreement or this Agreement, including (i) the purchase of Shares by

Purchaser (pursuant to the Offers) and (ii) the Merger or, as of the date

hereof to the knowledge of any officer of Stockholder, any other circumstance

or event existing or previously existing, does not, and will not, trigger, or

otherwise give to Stockholder, any right to terminate the Supplier Link

Agreement with the Company to which such Stockholder is party.

 

                  (c) As of the date hereof, to the knowledge of any officer or

Stockholder, the Company's current practices with respect to the sale, whether

through the receipt of commissions or other form of payment, and display of

advertising or banners (including those that contain links) on the Orbitz

website do not, in each case, conflict with or violate any restrictions

(including the order of display or otherwise) with respect to the selling or

marketing activities binding on the Company (whether such restrictions exist

pursuant to the Charter Associate Agreement to which such Stockholder is a

party or otherwise).

 

                  (d) Subject to the provisions of Section 10(c) of this

Agreement, assuming Stockholder and all Other Stockholders transfer their

Shares to Purchaser in the Class B Offer, unless earlier terminated by the

parties thereto, the Company Stockholders Agreement shall terminate upon

purchase and payment in full to Stockholder and all Other Stockholders from

Purchaser for all of their shares in accordance with the terms of the Company

Stockholders Agreement and no party shall have any further liability

thereunder.

 

         SECTION 6. Transfer of the Shares; Other Actions.

 

                  (a) Prior to the termination of this Agreement, except as

otherwise provided herein (including pursuant to Section 4 or Section 7) or in

the Merger Agreement, Stockholder shall not, and shall cause each of its

subsidiaries not to: (i) transfer, assign, sell, gift-over, pledge or otherwise

dispose (whether by sale, liquidation, dissolution, dividend or distribution)

of, create or suffer to exist any Encumbrances (other than Permitted

Encumbrances) on or consent to any of the foregoing ("Transfer"), any or all of

the Shares or any right or interest therein; (ii) enter into any contract,

option or other agreement, arrangement or understanding with respect to any

Transfer; (iii) grant any proxy, power-of-attorney or other authorization or

consent with respect to any of the Shares with respect to any matter that is,

or that is reasonably likely to be exercised in a manner, inconsistent with the

transactions contemplated by the Merger Agreement or the provisions thereof;

(iv) deposit any of the Shares into a voting trust, or enter into a voting

agreement or arrangement with respect to any of the Shares; (v) voluntarily

convert any of such Stockholder's Shares into shares of Class A Common Stock or

take any action that would cause the conversion of such Stockholder's Shares

into shares of Class A Common Stock; or (vi) knowingly, directly or indirectly,

take or cause, the taking of any other action (other than such actions (if any)

which are permitted under Section 8(b)(ii) hereof) that would restrict, limit

or interfere with the performance of such Stockholder's obligations hereunder

or the transactions contemplated hereby, excluding any bankruptcy filing.

 

                  (b) Upon commencement of the Offer, Stockholder agrees to

promptly file a motion in the Bankruptcy Court seeking Bankruptcy Court

approval of Stockholder's entry into and delivery of the Agreement,

Stockholder's merger consent, the Company Stockholders Agreement Waiver and

authority to consummate any transactions contemplated hereby and thereby.

Stockholder shall provide Parent and Purchaser copies of any motions, orders

and supporting papers and notices (collectively, the "Robertson Filings") it

files with the Bankruptcy Court with respect to its efforts to obtain

Bankruptcy Court Approval, contemporaneous with the filing of such documents,

and provide reasonable advance notice of any hearings and other proceedings it

schedules with the Bankruptcy Court relating to Stockholder's efforts to obtain

the Bankruptcy Court Approval or any approval related to this Agreement.

 

         (c) Upon receipt of payment in full for all of its Shares, Stockholder

agrees that any and all rights incident to its ownership of Shares (including

any rights to recover amounts, if any, that may be determined to be due to any

stockholder or former stockholders of Company), including but not limited to

rights arising out of a such Stockholder's ownership of Shares prior to the

transfer of such Shares to Purchaser or Parent pursuant to the Class B Offer or

pursuant to the Merger Agreement, shall be transferred to Purchaser and Parent

upon the transfer to Purchaser or Parent of such Stockholder's Shares.

 

         SECTION 7. Merger Consent; Grant of Irrevocable Proxy; Appointment of

Proxy.

 

                   (a) Immediately following execution of the Merger Agreement,

Stockholder will have delivered to the Company at its principal place of

business, on and as of the date of this Agreement, a written consent approving

the Merger, the Merger Agreement and the Transactions contemplated thereby,

such approval to be effective immediately and irrevocable for purposes of

Section 8.2 of the Company Certificate and Section 228 of the DGCL with respect

to Stockholder; provided, however, that the effectiveness of the written

consent provided by Stockholder for purposes of this Section 7(a) is subject to

Bankruptcy Court Approval as required by Section 1 of this Agreement.

Stockholder acknowledges that any required approval of the Merger, the Merger

Agreement and the Transactions contemplated thereby by the holders of Class B

Shares as a class shall be effective (a) as of the date hereof with respect to

Sections 8.2(a) and 8.2(b) of the Company Certificate and (b) subject only to

(x) Stockholder obtaining the Bankruptcy Court Approval as required by Section

1 of this Agreement and (y) the requirements of Section 228 of the DGCL, as of

the date that the Bankruptcy Court Approval is granted with respect to Section

8.2(c) of the Company Certificate. If the Merger Agreement has not been

terminated by the 60th day after the date of this Agreement, by such date

Stockholder has not obtained the Bankruptcy Court Approval as required by

Section 1 of this Agreement, and the approval of the Merger, the Merger

Agreement and the Transactions contemplated by the Merger Agreement by such

Stockholder continues to be required pursuant to Section 8.2(c) of the Company

Certificate, Stockholder agrees to promptly re-deliver to the Company at its

principal place of business, on and as of such date, a written consent

approving the Merger, the Merger Agreement and the Transactions contemplated

thereby for purposes of Section 8.2(c) of the Company Certificate; provided,

however, that the effectiveness of any such newly provided written consent

delivered pursuant to this Section 7(a) is subject to the Bankruptcy Court

Approval as required by Section 1 of this Agreement.

 

                  (b) Stockholder hereby consents for purposes of Section 2(f)

of the Company Stockholders Agreement, to the actions taken (including the

rights granted to Parent) by each of the Other Stockholders pursuant to

Sections 6(d) and 6(f) of the Other Stockholder Agreement to which each such

Other Stockholder is a party.

 

                  (c) Subject to the provisions of Section 10(c) hereof,

concurrently with the execution of this Agre