Orbitz Inc. Contracts
Sample Business Contracts
Bylaws - Orbitz Inc.
AMENDED AND RESTATED BYLAWS
OF
ORBITZ, INC.
_________, 2003
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TABLE OF CONTENTS
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ARTICLE I - CORPORATE OFFICES..................................................1
1.1 REGISTERED OFFICE................................................1
1.2 OTHER OFFICES....................................................1
ARTICLE II - LIMITATION ON ACTIVITIES..........................................1
2.1 LIMITATIONS - GENERALLY..........................................1
2.2 LIMITATIONS - HOLDING COMPANY FORMATION..........................2
ARTICLE III - MEETINGS OF STOCKHOLDERS.........................................2
3.1 PLACE OF MEETINGS................................................2
3.2 ANNUAL MEETING...................................................2
3.3 SPECIAL MEETING..................................................2
3.4 NOTICE OF STOCKHOLDERS' MEETINGS.................................2
3.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.....................2
3.6 QUORUM...........................................................3
3.7 ADJOURNED MEETING; NOTICE........................................3
3.8 CONDUCT OF BUSINESS..............................................3
3.9 VOTING...........................................................4
3.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING..........4
3.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING
CONSENTS.........................................................5
3.12 PROXIES..........................................................5
3.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE............................6
3.14 STOCKHOLDER ACTIONS..............................................6
ARTICLE IV - DIRECTORS.........................................................9
4.1 POWERS...........................................................9
4.2 NUMBER OF DIRECTORS..............................................9
4.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS..........9
4.4 RESIGNATION AND VACANCIES........................................9
4.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE........................10
4.6 REGULAR MEETINGS................................................10
4.7 SPECIAL MEETINGS; NOTICE........................................10
4.8 QUORUM..........................................................11
4.9 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING...............11
4.10 FEES AND COMPENSATION OF DIRECTORS..............................11
4.11 APPROVAL OF LOANS TO OFFICERS...................................11
4.12 REMOVAL OF DIRECTORS............................................11
4.13 REQUIRED APPROVALS..............................................12
4.14 BOARD ACTION BY UNANIMOUS APPROVAL..............................14
ARTICLE V - COMMITTEES........................................................14
5.1 COMMITTEES OF DIRECTORS.........................................14
5.2 COMMITTEE MINUTES...............................................15
5.3 MEETINGS AND ACTION OF COMMITTEES...............................15
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5.4 CLASS A NOMINATING COMMITTEE....................................16
5.5 COMPENSATION COMMITTEE..........................................16
5.6 AUDIT COMMITTEE.................................................16
ARTICLE VI - OFFICERS.........................................................17
6.1 OFFICERS........................................................17
6.2 APPOINTMENT OF OFFICERS.........................................17
6.3 SUBORDINATE OFFICERS............................................17
6.4 REMOVAL AND RESIGNATION OF OFFICERS.............................17
6.5 VACANCIES IN OFFICES............................................18
6.6 CHAIRPERSON OF THE BOARD........................................18
6.7 CHIEF EXECUTIVE OFFICER.........................................18
6.8 PRESIDENT.......................................................18
6.9 VICE PRESIDENTS.................................................19
6.10 SECRETARY.......................................................19
6.11 CHIEF FINANCIAL OFFICER.........................................20
6.12 ASSISTANT SECRETARY.............................................20
6.13 ASSISTANT TREASURER.............................................20
6.14 REPRESENTATION OF SHARES OF OTHER CORPORATIONS..................20
6.15 AUTHORITY AND DUTIES OF OFFICERS................................20
ARTICLE VII - RECORDS AND REPORTS.............................................21
7.1 MAINTENANCE AND INSPECTION OF RECORDS...........................21
7.2 INSPECTION BY DIRECTORS.........................................21
ARTICLE VIII - GENERAL MATTERS................................................21
8.1 CHECKS..........................................................21
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS................22
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES..........................22
8.4 SPECIAL DESIGNATION ON CERTIFICATES.............................22
8.5 LOST CERTIFICATES...............................................23
8.6 CONSTRUCTION; DEFINITIONS.......................................23
8.7 DIVIDENDS.......................................................23
8.8 FISCAL YEAR.....................................................23
8.9 OPERATING BUDGETS...............................................23
8.10 SEAL............................................................23
8.11 TRANSFER OF STOCK...............................................24
8.12 STOCK TRANSFER AGREEMENTS.......................................24
8.13 REGISTERED STOCKHOLDERS.........................................24
8.14 WAIVER OF NOTICE................................................24
ARTICLE IX - NOTICE BY ELECTRONIC TRANSMISSION................................24
9.1 NOTICE BY ELECTRONIC TRANSMISSION...............................24
9.2 DEFINITION OF ELECTRONIC TRANSMISSION...........................25
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ARTICLE X--INDEMNIFICATION....................................................25
10.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.......................25
10.2 INSURANCE.......................................................25
ARTICLE XI--AMENDMENTS........................................................26
ARTICLE XII--DEFINITIONS......................................................27
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AMENDED AND RESTATED BYLAWS OF ORBITZ, INC.
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ARTICLE I - CORPORATE OFFICES
1.1 REGISTERED OFFICE.
The registered office of Orbitz, Inc. (the "CORPORATION") shall be fixed in
the Corporation's Amended and Restated Certificate of Incorporation, as the same
may be amended from time to time (the "CERTIFICATE OF INCORPORATION").
1.2 OTHER OFFICES.
The Corporation's Board of Directors (the "BOARD") may at any time
establish other offices at any place or places where the Corporation is
qualified to do business.
ARTICLE II - LIMITATION ON ACTIVITIES
2.1 LIMITATIONS - GENERALLY
The Corporation shall not and shall take all actions necessary to ensure that
its Controlled Affiliates, including Orbitz LLC, do not engage in any activity
not in furtherance of the following: (i) except to the extent approved by the
holders of Class B Common Stock pursuant to Section 8.2(c) of the Certificate of
Incorporation, marketing, selling and servicing of airline travel products and
services in an Unbiased Manner and a Non-Opaque Manner through the Internet and
other means of electronic or telephonic commerce; (ii) marketing, selling and
servicing of travel products and services (other than airline travel products
and services) through the Internet and other means of electronic or telephonic
commerce; (iii) engaging in web site development and hosting for third parties;
(iv) engaging in development and commercialization of direct connect technology;
and (v) subject to Section 4.13 hereof, engaging in such other activities in
connection with the foregoing as the Board deems necessary or advisable;
PROVIDED, HOWEVER, that (x) except if approved pursuant to Article XI hereof,
the Corporation shall not and shall take all actions necessary so that its
Controlled Affiliates do not, display airline fares or other Airline Information
in other than an Unbiased Manner, except in response to a Customer Request;
PROVIDED, HOWEVER, that any display other than in an Unbiased Manner provided in
response to a Customer Request shall offer the Customer the choice to return to
a display of Airline Information in an Unbiased Manner at the conclusion of such
Customer Request; and PROVIDED, FURTHER, that failure by the Corporation or any
of its Controlled Affiliates to display Airline Information of an airline
because such airline has not provided such Airline Information to the
Corporation or any of its Controlled Affiliates shall not be deemed a failure to
display in an Unbiased Manner, and (y) the Corporation or any of its Controlled
Affiliates shall be permitted to post one or more links on its or their web
sites to an Opaque Site, subject to the restriction contained in the following
sentence. The Corporation shall take all actions necessary to ensure that the
Corporation and each of its Controlled Affiliates shall not derive or expect to
derive, based on any business plans or model, directly or indirectly, revenues
from the sale of airline tickets sold in an Opaque Manner, whether through links
to Opaque Sites, through referrals from the Corporation or any of its Controlled
Affiliates to Opaque Sites, or otherwise, equal to or in excess of twenty
percent (20%) of such entity's revenues that are derived from the sale of
airline tickets. Notwithstanding anything herein to the contrary, the holders of
the Corporation's Class B Common Stock and their Affiliates and other airlines
and providers of travel products and services shall be permitted to advertise or
offer promotions on Orbitz LLC's web site.
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2.2 LIMITATIONS - HOLDING COMPANY FORMATION
Except to the extent approved by the holders of Class B Common Stock
pursuant to Section 8.2(a) of the Certificate of Incorporation, the Corporation
shall not form any Holding Company.
ARTICLE III - MEETINGS OF STOCKHOLDERS
3.1 PLACE OF MEETINGS.
Meetings of stockholders shall be held at any place, within or outside the
State of Delaware, designated by resolution of the Board from time to time. The
Board may, in its sole discretion, determine that a meeting of stockholders
shall not be held at any place, but may instead be held solely by means of
remote communication as authorized by Section 211(a)(2) of the General
Corporation Law of the State of Delaware (the "DGCL"). In the absence of any
such designation or determination, stockholders' meetings shall be held at the
Corporation's principal executive office.
3.2 ANNUAL MEETING.
If required by applicable law, an annual meeting of the stockholders shall
be held from time to time at a date and time designated by the Board. At the
annual meeting, directors shall be elected and any other proper business may be
transacted.
3.3 SPECIAL MEETING.
Special meetings of the stockholders of the Corporation may be called by
the chairperson of the Board or the chief executive officer, by the Board acting
pursuant to a resolution adopted by a majority of its members or by the holders
of a majority of the voting power of the issued and outstanding Class B Common
Stock. Business transacted at any special meeting of the stockholders shall be
limited to the purposes stated in the notice.
3.4 NOTICE OF STOCKHOLDERS' MEETINGS.
Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, all notices of meetings of stockholders shall be sent or otherwise
given in accordance with either Section 3.5 or Section 9.1 of these Bylaws not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to vote at such meeting. The notice shall specify
the place, if any, date and hour of the meeting, the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Notice of any
meeting may be waived by any stockholder before or after such meeting.
3.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of stockholders shall be given:
(i) if mailed, when deposited in the United States mail, postage
prepaid, directed to the stockholder at his or her address as it appears on the
Corporation's records; or
(ii) if electronically transmitted, as provided in Section 9.1 of
these Bylaws.
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An affidavit of the secretary or an assistant secretary of the Corporation
or of the transfer agent or any other agent of the Corporation that the notice
has been given by mail or by a form of electronic transmission, as applicable,
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein.
3.6 QUORUM.
Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the holders of a majority of the voting power of the stock issued
and outstanding and entitled to vote, present in person or represented by proxy,
shall constitute a quorum for the transaction of business at all meetings of the
stockholders. If, however, such quorum is not present or represented at any
meeting of the stockholders, then the stockholders entitled to vote at the
meeting, present in person or represented by proxy, by a majority in voting
power thereof, shall have power to adjourn the meeting from time to time, in the
manner set forth in Section 3.7 of these Bylaws until a quorum shall attend. At
such adjourned meeting at which a quorum is present or represented, any business
may be transacted that might have been transacted at the meeting as originally
noticed. Shares of the Corporation's stock belonging to the Corporation or to
another corporation if a majority of the shares entitled to vote in the election
of directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; PROVIDED, HOWEVER, that the foregoing shall not limit the right of the
Corporation or any Subsidiary of the Corporation to vote stock, including but
not limited to its own stock, held by it in a fiduciary capacity.
3.7 ADJOURNED MEETING; NOTICE.
When a meeting is adjourned to another time or place, unless these Bylaws
otherwise require, notice need not be given of the adjourned meeting if the
time, place, if any, thereof, and the means of remote communications, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such adjourned meeting are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
3.8 CONDUCT OF BUSINESS.
The chairperson of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of business. The date and time of the opening
and closing of the polls for each matter upon which the stockholders will vote
at a meeting shall be announced at the meeting by the person presiding over the
meeting. The Board may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations adopted by the Board,
the person presiding over any meeting of the stockholders shall have the right
and authority to convene and to adjourn the meeting, to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairperson, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board or prescribed by the
presiding officer of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as the chairperson of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; (v) limitations on the time allotted to questions
or comments by participants; and (vi) at any meeting of
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stockholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding officer should so determine,
such person shall so declare to the meeting and any such matter or business not
properly brought before the meeting shall not be transacted or considered.
Unless and to the extent determined by the Board or the person presiding over
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
3.9 VOTING.
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 3.11 of these Bylaws,
subject to Section 217 (relating to voting rights of fiduciaries, pledgors and
joint owners of stock) and Section 218 (relating to voting trusts and other
voting agreements) of the DGCL. Voting at meetings of stockholders need not be
by written ballot. Except as otherwise provided in the Certificate of
Incorporation, at all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect such directors. Unless
otherwise provided by the Certificate of Incorporation, these Bylaws, the rules
or regulations of any stock exchange applicable to the Corporation or applicable
law or pursuant to any regulation applicable to the Corporation or its
securities, all other elections and questions shall be decided by the
affirmative vote of the holders of a majority in voting power of the shares of
stock of the Corporation which are present in person or by proxy and entitled to
vote thereon.
3.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless otherwise provided in the Certificate of Incorporation (including
without limitation, the prohibition of action by written consent following the
Trigger Date (as defined in the Certificate of Incorporation)) or these Bylaws,
any action required by the DGCL to be taken at any annual or special meeting of
stockholders of a Corporation, or any action which may be taken at any annual or
special meeting of such stockholders, may be taken without a meeting, without
prior notice, and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business or to an officer or agent of the Corporation having custody of the
book in which minute of proceedings of stockholders are recorded. Delivery made
to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall, to the extent required by law, be
given to those stockholders who have not consented in writing and who, if the
action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of holders to take the action were
delivered to the Corporation as provided in Section 228 of the DGCL. In the
event that the action which is consented to is such as would have required the
filing of a certificate under any provision of the DGCL, if such action had been
voted on by stockholders at a meeting thereof, the certificate filed under such
provision shall state, in lieu of any statement required by such provision
concerning any vote of stockholders, that written consent has been given in
accordance with Section 228 of the DGCL.
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3.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.
In order that the Corporation may determine the stockholders entitled to:
(a) notice of or to vote at any meeting of stockholders or any adjournment
thereof, (b) express consent to corporate action in writing without a meeting,
(c) receive payment of any dividend or other distribution or allotment of any
rights, or (d) exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board may
fix a record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted by the Board and which record date:
(i) in the case of determination of stockholders entitled to vote at any meeting
of the stockholders or adjournment thereof, shall, unless otherwise required by
law, not be more than sixty (60) nor less than ten (10) days before the date of
such meeting; (ii) in the case of determination of stockholders entitled to
express consent to corporate action in writing without a meeting, shall not be
more than ten (10) days from the date upon which the resolution fixing the
record date is adopted by the Board; and (iii) in the case of any other action,
shall not be more than sixty (60) days prior to such other action. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
to the secretary of the Corporation, request that the Board fix a record date.
The Board shall have a period of ten (10) days after such a request is received
to adopt a resolution fixing a record date.
If the Board does not so fix a record date:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(ii) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law, or, if prior
action by the Board is required by law shall be at the close of business on the
day on which the Board adopts the resolution taking such prior action.
(iii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board may fix a new record date for the adjourned
meeting.
3.12 PROXIES.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy authorized by an
instrument in writing or by an electronic transmission permitted by law filed in
accordance with the procedure established for the meeting, but no such proxy
shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person or
by delivering to the secretary of the Corporation a revocation of the proxy or a
new proxy bearing a later date.
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3.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE.
The officer who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder, the number of
shares registered in the name of each stockholder and the voting power
associated therewith. The Corporation shall not be required to include
electronic mail addresses or other electronic contact information on such list.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of at least ten (10) days prior to the
meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of
the meeting, or (ii) during ordinary business hours, at the Corporation's
principal executive office. In the event that the Corporation determines to make
the list available on an electronic network, the Corporation may take reasonable
steps to ensure that such information is available only to stockholders of the
Corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting
is to be held solely by means of remote communication, then the list shall also
be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the meeting.
Except as otherwise provided by law, the stock ledger shall be the only evidence
as to which stockholders are entitled to examine the stock ledger, the list of
stockholders, the books of the Corporation, a Subsidiary's books and records
(subject to the requirements of Section 7.1 hereof) or to vote in person or by
proxy at any meeting of the stockholders.
3.14 STOCKHOLDER ACTIONS.
(a) ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the Board as Class A
Directors and the proposal of business to be considered by the stockholders may
be made at an annual meeting of stockholders only (A) pursuant to the
Corporation's notice of meeting (or any supplement thereto), (B) by or at the
direction of the Board or (C) by any stockholder of the Corporation who was a
stockholder of record of the Corporation at the time the notice provided for in
this Section 3.14 is delivered to the secretary of the Corporation, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 3.14.
(2) For nominations of Class A Directors or other business to be
properly brought before an annual meeting by a stockholder pursuant to clause
(C) of paragraph (a)(1) of this Section 3.14, the stockholder must have given
timely notice thereof in writing to the secretary of the Corporation and any
such proposed business other than the nominations of persons for election to the
Board must constitute a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the secretary at the principal
executive offices of the Corporation not later than the close of business on the
ninetieth (90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the first anniversary of the preceding year's
annual meeting (PROVIDED, HOWEVER, that in the event that the date of the annual
meeting is more than thirty (30) days before or more than seventy (70) days
after such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such
meeting is first made by the Corporation). For purposes of the first annual
meeting of stockholders of the Corporation held following the date of these
Bylaws, the first anniversary of such annual
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meeting shall be deemed to be the second Tuesday of May of the following year.
In no event shall the public announcement of an adjournment or postponement of
an annual meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above. Such stockholder's notice
shall set forth: (A) as to each person whom the stockholder proposes to nominate
for election as a director (i) all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to and
in accordance with Regulation 14A under the Exchange Act and (ii) such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected; (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the text of the proposal or
business (including the text of any resolutions proposed for consideration and
in the event that such business includes a proposal to amend the Bylaws of the
Corporation, the language of the proposed amendment), the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner, (ii) the class and number of shares of capital stock of
the Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner, (iii) a representation that the stockholder is a
holder of record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to propose such
business or nomination, and (iv) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends (a) to
deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (b) otherwise to solicit proxies
from stockholders in support of such proposal or nomination. The foregoing
notice requirements shall be deemed satisfied by a stockholder if the
stockholder has notified the Corporation of his or her intention to present a
proposal at an annual meeting in compliance with Rule 14a-8 (or any successor
thereof) promulgated under the Exchange Act and such stockholder's proposal has
been included in a proxy statement that has been prepared by the Corporation to
solicit proxies for such annual meeting. The Corporation may require any
proposed nominee as a Class A Director to furnish such other information as it
may reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the Corporation.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 3.14 to the contrary, in the event that the number of
Class A Directors to be elected to the Board at an annual meeting is increased
and there is no public announcement by the Corporation naming the nominees for
the additional directorships at least one hundred (100) days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 3.14 shall also be considered timely, but only with
respect to nominees for the additional directorships, if it shall be delivered
to the secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth (10th) day following the day on which
such public announcement is first made by the Corporation.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board as Class A Directors may be made at a special
meeting of stockholders at which Class A Directors are to be elected pursuant to
the Corporation's notice of meeting (1) by or at the direction of the Board or
(2) provided that the Board has determined that directors shall be elected at
such meeting, by any stockholder of the Corporation who is a stockholder of
record at the time the notice provided for in this Section 3.14 is delivered to
the secretary of the Corporation, who is entitled to vote at the meeting and
upon such election and who complies with the notice procedures set forth
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in this Section 3.14. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more Class A Directors to the
Board, any such stockholder entitled to vote in such election of directors may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this Section 3.14 shall be
delivered to the secretary at the principal executive offices of the Corporation
not earlier than the close of business on the one hundred twentieth (120th) day
prior to such special meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such special meeting or the tenth day
(10th) following the day on which public announcement is first made of the date
of the special meeting and of the nominees proposed by the Board to be elected
at such meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above.
(c) CLASS B DIRECTOR NOMINATIONS. Nominations for Class B Directors may
only be made by a holder of the series of Class B Common Stock entitled to elect
such director. The nominee for the Management Director shall be the chief
executive officer of the Corporation.
(d) GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 3.14 shall be eligible to be elected at an
annual or special meeting of stockholders of the Corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 3.14. Except as otherwise provided by law, the
chairperson of the meeting shall have the power and duty (A) to determine
whether a nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the procedures set
forth in this Section 3.14 (including whether the stockholder or beneficial
owner, if any, on whose behalf the nomination or proposal is made solicited (or
is part of a group which solicited) or did not so solicit, as the case may be,
proxies in support of such stockholder's nominee or proposal in compliance with
such stockholder's representation as required by clause (a)(2)(C)(iv) of this
Section 3.14) and (B) if any proposed nomination or business was not made or
proposed in compliance with this Section 3.14, to declare that such nomination
shall be disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 3.14, if the
stockholder (or a qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the Corporation to present a
nomination or business, such nomination shall be disregarded and such proposed
business shall not be transacted, notwithstanding that proxies in respect of
such vote may have been received by the Corporation.
(2) For purposes of this Section 3.14, "public announcement"
shall include disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 3.14, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 3.14. Nothing in this Section 3.14 shall be
deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 (or any
successor thereof) under the Exchange Act or (B) of the holders of any series of
Preferred Stock to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
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ARTICLE IV - DIRECTORS
4.1 POWERS.
Subject to the provisions of the DGCL and any limitations in the
Certificate of Incorporation or these Bylaws relating to action required to be
approved by the stockholders or by the outstanding shares, the business and
affairs of the Corporation and Orbitz LLC shall be managed and all corporate
powers shall be exercised by or under the direction of the Board.
4.2 NUMBER OF DIRECTORS.
The number of directors of the Corporation shall be as provided in the
Certificate of Incorporation. The Board shall be classified to the extent
provided in the Certificate of Incorporation.
4.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.
(a) The election and term of office of directors of the Corporation shall
be as provided in the Certificate of Incorporation. Each director, including a
director elected to fill a vacancy, shall hold office until such director's
successor is elected and qualified or until such director's earlier death,
resignation or removal. Directors need not be stockholders.
(b) Except as otherwise approved by a majority of the series of Class B
Common Stock that then have shares outstanding whose voting power is determined
in accordance with Section 5.1(c) of the Certificate of Incorporation, each
Class B Director shall be an employee of the Airline which, or whose Qualified
Affiliate, is the holder of the series of Class B Common Stock which elected
such director and shall hold a position no lower than (A) two reporting levels
below the chief executive officer or president of such Airline or (B) a vice
president of such Airline.
(c) No Class A Director may be an employee, officer or director of any
Airline or its Qualified Affiliates; PROVIDED, HOWEVER that at such time as any
Airline or its Qualified Affiliates ceases to hold any shares of, or any rights
to acquire, Class B Common Stock, the foregoing restriction shall no longer
apply with respect to any employee, officer or director of such Airline or its
Qualified Affiliates.
4.4 RESIGNATION AND VACANCIES.
Any director may resign at any time upon notice given in writing or by
electronic transmission to the Corporation as provided in Section 9.1 of these
Bylaws. When one or more directors so resigns, vacancies shall be filled as
provided in the Certificate of Incorporation.
Except as otherwise provided in the Certificate of Incorporation, if at any
time, by reason of death or resignation or other cause, the Corporation should
have no directors in office, then any officer of the Corporation or any
stockholder of the Corporation or an executor, administrator, trustee or
guardian of a stockholder, or other fiduciary entrusted with like responsibility
for the person or estate of a stockholder, may call a special meeting of
stockholders in accordance with the provisions of the Certificate of
Incorporation or these Bylaws, or may apply to the Court of Chancery for a
decree summarily ordering an election as provided in Section 211 of the DGCL.
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If, at the time of filling any vacancy or any newly created directorship,
the directors then in office constitute less than a majority of the entire Board
(as constituted immediately prior to any such increase), then the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least 10% of the total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election to be held to fill
any such vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office as aforesaid, which election shall be
governed by the provisions of Section 211 of the DGCL as far as applicable.
4.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
The Board may hold meetings, both regular and special, either within or
outside the State of Delaware.
Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, members of the Board, or any committee designated by the Board, may
participate in a meeting of the Board, or any committee, by means of conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
4.6 REGULAR MEETINGS.
Regular meetings of the Board may be held without notice at such time and
at such place as shall from time to time be determined by the Board.
4.7 SPECIAL MEETINGS; NOTICE.
Special meetings of the Board for any purpose or purposes may be called at
any time by the chairperson of the Board, by the chief executive officer or by
any two (2) Class B Directors who were not elected by the same series of Class B
Common Stock.
Notice of the time and place of special meetings shall be:
(i) delivered personally by hand, by courier or by telephone;
(ii) sent by United States first-class mail, postage prepaid;
(iii) sent by facsimile; or
(iv) sent by electronic mail,
directed to each director at that director's address, telephone number,
facsimile number or electronic mail address, as the case may be, as shown on the
Corporation's records.
If the notice is (i) delivered personally by hand, by courier or by
telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be
delivered or sent at least seventy-two (72) hours before the time of the holding
of the meeting. If the notice is sent by United States mail, it shall be
deposited in the United States mail at least four (4) days before the time of
the holding of the meeting. Any oral notice may be communicated to the director.
The notice need not specify the place of the meeting (if the meeting is to be
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held at the Corporation's principal executive office) nor the purpose of the
meeting. Notice of any Board or committee meeting may be waived by any director
or any member of such committee, as the case may be, before or after such
meeting.
4.8 QUORUM.
At all meetings of the Board, a majority of the entire Board (without
regard to vacancies) shall constitute a quorum for the transaction of business.
The vote of a majority of the directors present at any meeting at which a quorum
is present shall be the act of the Board, except as may be otherwise
specifically provided by statute, the Certificate of Incorporation or these
Bylaws. If a quorum is not present at any meeting of the Board, then the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for that meeting.
4.9 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting of the
Board, or of any committee thereof, may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing or by electronic transmission and the writing or writings or electronic
transmission or transmissions are filed with the minutes of proceedings of the
Board or committee. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
4.10 FEES AND COMPENSATION OF DIRECTORS.
Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, the Board shall have the authority to fix the compensation of directors.
4.11 APPROVAL OF LOANS TO OFFICERS.
To the extent permitted by applicable law, the Corporation may lend money
to, or guarantee any obligation of, or otherwise assist any officer or other
employee of the Corporation or its Subsidiaries, including any officer or
employee who is a director of the Corporation or its Subsidiaries, whenever, in
the judgment of the Board, such loan, guaranty or assistance may reasonably be
expected to benefit the Corporation. The loan, guaranty or other assistance may
be with or without interest and may be unsecured, or secured in such manner as
the Board shall approve, including, without limitation, a pledge of shares of
stock of the Corporation.
4.12 REMOVAL OF DIRECTORS.
The removal of directors of the Corporation shall be as provided in the
Certificate of Incorporation.
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4.13 REQUIRED APPROVALS.
(a) Without limiting the powers of the Board set forth in Section 4.1 and
subject to the further restrictions and approval requirements of Article II
hereof and the Certificate of Incorporation, the Corporation shall not, and
shall not permit any Controlled Affiliate to, and no officer, employee or agent
of the Corporation or any Controlled Affiliate shall, take any of the following
actions set forth in subsections (i) through (xxiv) without the approval of a
majority of the entire Board (without regard to vacancies):
(i) the election or re-election of any officers of the
Corporation (including, without limitation, the chief executive officer) or any
of its Controlled Affiliates;
(ii) except as expressly authorized in the then-current Operating
Budget (as defined in Section 8.9), any incurrence of indebtedness by the
Corporation or any of its Controlled Affiliates, any guarantee of the
Corporation or any of its Controlled Affiliates or any contingent liability of
the Corporation or any of its Controlled Affiliates, which in each case (without
duplication) involves an amount in excess of $5 million;
(iii) except as expressly authorized in the then-current Operating
Budget, any investment in, contribution of capital of, or acquisition of value
for the account of the Corporation or any of its Controlled Affiliates of any
security issued by, or any other ownership interest in, or any acquisition of
assets of, any other Person, in each case (without duplication) where the
consideration to be paid by the Corporation or any of its Controlled Affiliates
is greater than $250,000 individually, or $1 million in the aggregate, in any
fiscal year;
(iv) surrendering or abandoning any property of the Corporation or
any of its Controlled Affiliates, tangible or intangible, in each case (without
duplication) having a value in excess of $500,000 or any material rights
thereunder;
(v) any changes to the rebate, if any, offered to suppliers by
the Corporation or any of its Controlled Affiliates;
(vi) entering into any agreement, contract, commitment,
undertaking or expenditure involving, in each case (without duplication), any
amount in excess of $5 million, or any amendment, modification or extension of
or suspension of performance under any such agreement, contract, commitment or
undertaking, unless such amendment, modification, extension or suspension would
not materially alter the financial obligations of the Corporation or any of its
Controlled Affiliates with respect to such agreement, contract, commitment or
undertaking;
(vii) except and to the extent relating to an expenditure
authorized in the then-current Operating Budget, any action or inaction that
might cause the breach or termination of any agreement to which the Corporation
or any of its Controlled Affiliates is a party involving an amount to be paid by
the Corporation or any of its Controlled Affiliates, in each case (without
duplication) over the term of the agreement in excess of $1 million;
(viii) the settlement of any litigation involving the Corporation or
any of its Controlled Affiliates in each case (without duplication) for an
amount in excess of $250,000;
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(ix) the formation of any material Controlled Affiliate of the
Corporation, or the formation of any Controlled Affiliate of the Corporation
that does not, in its certificate of incorporation or other organizational
documents, require the approval of a majority of the entire Board (without
regard to vacancies) of the Corporation, in its capacity as stockholder of such
Controlled Affiliate, to take the actions specified in this Section 4.13(a);
(x) any change in the fiscal year of the Corporation or any of
its Controlled Affiliates;
(xi) except for ministerial amendments or alterations for the
purpose of effecting any action or transaction approved in accordance with the
terms and provisions of this Section 4.13 and in addition to any other approvals
required by these Bylaws or the Certificate of Incorporation, any amendment,
alteration, waiver or repeal of these Bylaws or the Certificate of
Incorporation;
(xii) approval of the annual Operating Budget and any material
revisions or amendments thereto;
(xiii) subject to Section 8.2(a) of the Certificate of
Incorporation, any merger, consolidation, sale, lease, license, assignment,
transfer or other disposition for value of any of the assets of the Corporation
or any of its Controlled Affiliates with a fair market value in excess of $1
million at any one time or the aggregate value of which, in each case (without
duplication) exceeds $3 million within any six month period;
(xiv) any guarantee of or grant of any security interest in any of
the assets of the Corporation or any of its Controlled Affiliates, other than
grants of purchase money security interests and security interests in equipment
and other leased assets in the ordinary course of business;
(xv) any distributions to stockholders of the Corporation or any
of its Controlled Affiliates;
(xvi) approval of the consolidated annual audited financial
statements of the Corporation and its consolidated Subsidiaries or any of its
Controlled Affiliates;
(xvii) exercise by the Corporation or any of its Controlled
Affiliates of any of their rights under any agreement against any holder of
Class B Common Stock; PROVIDED, HOWEVER, that the directors elected by such
holder of Class B Common Stock shall not be included in the calculation of the
required vote under this subsection;
(xviii) except as otherwise provided in the Certificate of
Incorporation or these Bylaws, any fundamental change in the purpose or scope of
the business of the Corporation or any of its Controlled Affiliates;
(xix) the relocation of the headquarters of the Corporation or any
of its Controlled Affiliates;
(xx) the approval of the form of (A) charter associate agreement
or (B) any other similar agreement to be used with suppliers of travel products
and any amendment or alteration of such forms of agreements;
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(xxi) the approval by the Corporation or any Controlled Affiliate
of any action by a Controlled Affiliate of the Corporation as to which approval
of a majority of the entire Board of Directors (without regard to vacancies) of
the Corporation, in its capacity as stockholder of such Controlled Affiliate, is
required or requested pursuant to the certificate of incorporation or other
organizational documents of such Controlled Affiliate, including, without
limitation, actions specified under this Section 4.13(a);
(xxii) the indemnification or advancement of expenses to a Person
other than a Covered Person (as defined in Article XI of the Certificate of
Incorporation) pursuant to Section 11.7 of the Certificate of Incorporation;
(xxiii) the approval, if any, required under Delaware law with
respect to indemnification of, or advancement of expenses to, a Covered Person
or other person pursuant to Section 11.8 of the Certificate of Incorporation or,
in the event the approval of a committee of the Board or designated officers of
the Corporation is permitted under Section 11.8, the approval of the resolutions
establishing such committee or designating such officers; and
(xxiv) the entering into any contract, commitment or binding
arrangement to take any of the foregoing actions.
(b) Without limiting the powers of the Board set forth in Section 4.1 and
subject to the further restrictions and approval requirements of the Certificate
of Incorporation, (i) the issuance of any Securities of the Corporation or its
Controlled Affiliates and (ii) the adoption of, or any material changes to, any
employee benefit plan, including, without limitation, any stock option or
similar plan of the Corporation or its Controlled Affiliates, shall require the
approval of two-thirds of the entire Board (without regard to vacancies).
(c) Notwithstanding anything to the contrary contained in Article IV
hereof, a vote of a Majority of Disinterested Directors shall be required to
approve the termination, amendment or modification of any agreement or the entry
into, termination, amendment or modification of any agreement or transaction
between the Corporation or any of its Controlled Affiliates and one or more of
its stockholders or officers or between the Corporation or any of its Controlled
Affiliates and any Related Party of any stockholder or officer; PROVIDED,
HOWEVER, that notwithstanding any other term of these Bylaws, each of the Class
B Directors shall be deemed disinterested with respect to all votes of the Board
with respect to (i) the services agreement between the Corporation or any of its
Controlled Affiliates and a Global Distribution System and (ii) any amendment,
alteration, waiver or termination of any Charter Associate Agreement.
ARTICLE V - COMMITTEES
5.1 COMMITTEES OF DIRECTORS.
The Board may designate one or more committees with such powers as are
delegated in the resolutions establishing such committee or the charter thereof,
each committee to consist of one or more of the directors of the Corporation as
provided herein. The delegation of any decision to a committee of the Board, and
the votes required for the making of such decision by such committee, shall have
the same approval requirements as the taking of such action by the Board. For
the avoidance of doubt, if the taking of an action requires the approval of a
majority of the entire Board (without regard to vacancies), then the delegation
of such decision to a committee of the Board shall require the approval of a
majority of the entire
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Board (without regard to vacancies) and the making of such decision by such
committee shall require the approval of a majority of the entire committee
(without regard to vacancies). The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Subject to the
approval requirements set forth in the Certificate of Incorporation, any such
committee, to the extent provided in the resolution of the Board or in these
Bylaws, shall have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers that may require it; but
no such committee shall have the power or authority to (i) approve or adopt, or
recommend to the stockholders, any action or matter expressly required by the
DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or
repeal these Bylaws.
Except as required by law or the rules of any stock exchange or the Nasdaq
Stock Market (as applicable to the Corporation), so long as there is a Class B
Director on the Board, each committee shall include, unless the director of such
series declines, one (1) Series B-AA Director (provided there is a Series B-AA
Director on the Board), one (1) Series B-CO Director (provided there is a Series
B-CO Director on the Board), one (1) Series B-DL Director (provided there is a
Series B-DL Director on the Board), one (1) Series B-NW Director (provided there
is a Series B-NW Director on the Board) and one (1) Series B-UA Director
(provided there is a Series B-UA Director on the Board). If there are no Class B
Directors on the Board, the members of each committee shall be selected by a
majority of the entire Board (without regard to vacancies).
5.2 COMMITTEE MINUTES.
Each committee shall keep regular minutes of its meetings and regularly
report the same to the Board.
5.3 MEETINGS AND ACTION OF COMMITTEES.
Meetings and actions of committees shall be governed by, and held and taken
in accordance with, the provisions of:
(i) Section 4.5 (place of meetings and meetings by telephone);
(ii) Section 4.6 (regular meetings);
(iii) Section 4.7 (special meetings and notice);
(iv) Section 4.8 (quorum);
(v) Section 4.9 (action without a meeting); and
(vi) Section 8.14 (waiver of notice);
with such changes in the context of these Bylaws as are necessary to substitute
the committee and its members for the Board and its members; PROVIDED, HOWEVER,
that:
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(i) the time of regular meetings of committees may be determined
either by resolution of the Board or by resolution of the committee;
(ii) special meetings of committees may also be called by
resolution of the Board; and
(iii) notice of special meetings of committees shall also be given
to all alternate members, who shall have the right to attend all meetings of the
committee. The Board may adopt rules for the governance of any committee not
inconsistent with the provisions of these Bylaws.
5.4 CLASS A NOMINATING COMMITTEE.
Upon the designation of any Class A Director positions, the Board shall
establish a Class A Nominating Committee authorized to (i) select nominees for
Class A Director positions to be recommended by the Board for election as
directors or (ii) fill any newly created Class A Director positions or any
vacancies in Class A Director positions. The Class A Nominating Committee shall
consist of at least three (3) members, including (i) one (1) Class A Director
(or, if there are none then in office, a nominee by a majority of the entire
Board (without regard to vacancies)) and (ii) unless the director of such series
declines, one (1) Series B-AA Director (provided there is a Series B-AA Director
on the Board), one (1) Series B-CO Director (provided there is a Series B-CO
Director on the Board), one (1) Series B-DL Director (provided there is a Series
B-DL Director on the Board), one (1) Series B-NW Director (provided there is a
Series B-NW Director on the Board) and one (1) Series B-UA Director (provided
there is a Series B-UA Director on the Board). The approval of a majority of the
members on the Class A Nominating Committee shall be required in order for the
Board to select any nominee for a Class A Director position.
5.5 COMPENSATION COMMITTEE.
The Board shall establish a Compensation Committee whose principal duties
shall be (i) to review key employee compensation policies, plans and programs,
(ii) to review and approve the compensation of the chief executive officer and
the other executive officers of the Corporation, (iii) to review and approve any
employment contracts, severance arrangements, change of control arrangements or
similar arrangements between the Corporation and any executive officer of the
Corporation, (iv) to review and consult with the chief executive officer
concerning selection of officers, management succession planning, performance of
individual executives and related matters, and (v) to administer the
Corporation's stock option plans, incentive compensation plan programs and any
such plans that the Board may from time to time adopt and to exercise all the
powers, duties and responsibilities of the Board with respect to such plans. The
Compensation Committee shall consist of at least three (3) members, including
(i) one (1) Class A Director (or, if there are none then in office, a nominee by
a majority of the entire Board (without regard to vacancies)) and (ii) unless a
director of such series declines, one (1) Series B-AA Director (provided there
is a Series B-AA Director on the Board), one (1) Series B-CO Director (provided
there is a Series B-CO Director on the Board), one (1) Series B-DL Director
(provided there is a Series B-DL Director on the Board), one (1) Series B-NW
Director (provided there is a Series B-NW Director on the Board) and one (1)
Series B-UA Director (provided there is a Series B-UA Director on the Board).
5.6 AUDIT COMMITTEE.
The Board shall establish an Audit Committee for the purpose of fulfilling
the Board's oversight responsibilities regarding the Corporation's and its
Subsidiaries' accounting and systems of internal controls, the quality and
integrity of the Corporation's financial reports and the independence and
performance of the
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Corporation's outside auditor as set forth in the Audit Committee Charter. The
Audit Committee shall consist of at least three (3) members, including, (i) one
(1) Class A Director (or, if there are none then in office, a nominee by a
majority of the entire Board (without regard to vacancies)) and (ii) unless a
director of such series declines, one (1) Series B-AA Director (provided there
is a Series B-AA Director on the Board), one (1) Series B-CO Director (provided
there is a Series B-CO Director on the Board), one (1) Series B-DL Director
(provided there is a Series B-DL Director on the Board), one (1) Series B-NW
Director (provided there is a Series B-NW Director on the Board) and one (1)
Series B-UA Director (provided there is a Series B-UA Director on the Board).
The approval of a majority of the entire Audit Committee shall be required to
approve the appointment of the independent auditors of the Corporation and its
consolidated Subsidiaries and any change in such appointment. Notwithstanding
the foregoing sentence, the composition and duties of the Audit Committee shall
comply with the rules or regulations of any stock exchange or the Nasdaq Stock
Market (as applicable to the Corporation) or applicable law or pursuant to any
regulation applicable to the Corporation or its Securities.
ARTICLE VI - OFFICERS
6.1 OFFICERS.
The officers of the Corporation shall be a chairperson of the Board, a
chief executive officer, a president (who may also be the chief executive
officer), a chief financial officer and a secretary. The Corporation may also
have, at the discretion of the Board, a vice chairperson of the Board, a
treasurer, one or more vice presidents, one or more assistant vice presidents,
one or more assistant treasurers, one or more assistant secretaries, and any
such other officers as may be appointed in accordance with the provisions of
these Bylaws. Any number of offices may be held by the same person.
6.2 APPOINTMENT OF OFFICERS.
The Board, by resolution of a majority of its members (without regard to
vacancies), shall appoint the officers of the Corporation, except such officers
as may be appointed in accordance with the provisions of Section 6.3 of these
Bylaws, subject to the rights, if any, of an officer under any contract of
employment.
6.3 SUBORDINATE OFFICERS.
The Board, by resolution of a majority of its members (without regard to
vacancies), may appoint, or empower the chief executive officer or, in the
absence of a chief executive officer, the president or a vice president, to
appoint, such other officers and agents as the business of the Corporation may
require. Each of such officers and agents shall hold office for such period,
have such authority, and perform such duties as are provided in these Bylaws or
as the Board may from time to time determine.
6.4 REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the Board at any regular or special meeting
of the Board or, except in the case of an officer chosen by the Board, by any
officer upon whom such power of removal may be conferred by the Board.
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Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice. Unless otherwise
specified in the notice of resignation, the acceptance of the resignation shall
not be necessary to make it effective. Any resignation is without prejudice to
the rights, if any, of the Corporation under any contract to which the officer
is a party.
6.5 VACANCIES IN OFFICES.
Any vacancy occurring in any office of the Corporation shall be filled by
the Board or as provided in Section 6.3.
6.6 CHAIRPERSON OF THE BOARD.
The chairperson of the Board, if such an officer is elected, shall, if
present, preside at meetings of the Board and exercise and perform such other
powers and duties as may from time to time be assigned to him by the Board or as
may be prescribed by these Bylaws. If there is no chief executive officer, then
the chairperson of the Board shall also be the chief executive officer of the
Corporation and shall have the powers and duties prescribed in Section 6.7 of
these Bylaws.
6.7 CHIEF EXECUTIVE OFFICER.
The chief executive officer, shall, in accordance with Section 4.13 hereof,
be elected by the Board and shall serve as such until the earlier of his death
or resignation or his removal in accordance with the terms of these Bylaws. The
chief executive officer shall have the responsibility for managing the
day-to-day business operations and affairs of the Corporation and Orbitz LLC and
supervising its other officers, subject to the direction, supervision and
control of the Board and subject to Section 4.13 hereof. In general, the chief
executive officer shall have such other powers and perform such other duties
with respect to the Corporation as usually pertain to the office of the chief
executive officer, and as from time to time may be assigned to him by the Board,
including, without limitation, but subject to Section 4.13 hereof, the authority
to retain and terminate officers and employees of the Corporation and Orbitz
LLC. The powers and duties of the chief executive officer shall at all times be
subject to the provisions of Section 4.13 hereof. The chief executive officer
may, from time to time, delegate such chief executive officer's powers and
authority to such other officers, employees and other agents of the Corporation
and Orbitz LLC as the chief executive officer shall deem appropriate. The chief
executive officer shall see that all orders and resolutions of the Board are
carried into effect. The chief executive officer shall serve as chairperson of
and preside at all meetings of the stockholders. In the absence of a chairperson
of the Board, the chief executive officer shall preside at all meetings of the
Board.
6.8 PRESIDENT.
In the absence of the chief executive officer or in the event of his
inability or refusal to act, the president shall perform the duties of the chief
executive officer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the chief executive officer. At all other
times, the president shall have the active management of the business of the
Corporation under the general supervision of the chief executive officer. The
president shall have concurrent power with the chief executive officer to sign
bonds, mortgages, certificates for shares and other contracts and documents,
whether or not under the seal of the Corporation except in cases where the
signing and execution thereof shall be expressly delegated by law, by the Board
or by these Bylaws to some other officer or agent of the Corporation. In
general, the president shall
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perform all duties incident to the office of president and such other duties as
the chief executive officer or the Board may from time to time prescribe.
6.9 VICE PRESIDENTS.
In the absence of the chief executive officer and the president or in the
event of their inability or refusal to act, the vice presidents, if any, in
order of their rank as fixed by the Board or, if not ranked, a vice president
designated by the Board, shall perform all the duties of the chief executive
officer and the president. When acting as the chief executive officer and the
president, the appropriate vice president shall have all the powers of, and be
subject to all the restrictions upon, the chief executive officer and the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board, these Bylaws, the chairperson of the Board or the chief executive
officer.
6.10 SECRETARY.
The secretary shall keep or cause to be kept, at the principal executive
office of the Corporation or such other place as the Board may direct, a book of
minutes of all meetings and actions of directors, committees of directors, and
stockholders. The minutes shall show:
(i) the time and place of each meeting;
(ii) whether regular or special (and, if special, how authorized
and the notice given);
(iii) the names of those present at directors' meetings or
committee meetings;
(iv) the number of shares present or represented at stockholders'
meetings; and
(v) the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive
office of the Corporation or at the office of the Corporation's transfer agent
or registrar, as determined by resolution of the Board, a share register, or a
duplicate share register showing:
(i) the names of all stockholders and their addresses;
(ii) the number and classes of shares held by each;
(iii) the voting power represented by such shares;
(iv) the number and date of certificates evidencing such shares;
and
(v) the number and date of cancellation of every certificate
surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board required to be given by law or by these
Bylaws. The secretary shall keep the seal of the Corporation, if one be adopted,
in safe custody and shall have such other powers and perform such other duties
as may be prescribed by the Board or by these Bylaws.
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6.11 CHIEF FINANCIAL OFFICER.
The chief financial officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the Corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in
the name and to the credit of the Corporation with such depositories as the
Board may designate. The chief financial officer shall disburse the funds of the
Corporation as may be ordered by the Board, shall render to the chief executive
officer or, in the absence of a chief executive officer, the directors, whenever
they request it, an account of all his or her transactions as chief financial
officer and of the financial condition of the Corporation, and shall have other
powers and perform such other duties as may be prescribed by the Board or these
Bylaws.
6.12 ASSISTANT SECRETARY.
The assistant secretary, or, if there is more than one, the assistant
secretaries in the order determined by the stockholders or Board (or if there be
no such determination, then in the order of their election) shall, in the
absence of the secretary or in the event of the secretary's inability or refusal
to act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as may be prescribed by the
Board or these Bylaws.
6.13 ASSISTANT TREASURER.
The assistant treasurer, or, if there is more than one, the assistant
treasurers, in the order determined by the stockholders or Board (or if there be
no such determination, then in the order of their election), shall, in the
absence of the chief financial officer or in the event of the chief financial
officer's inability or refusal to act, perform the duties and exercise the
powers of the chief financial officer and shall perform such other duties and
have such other powers as may be prescribed by the Board or these Bylaws.
6.14 REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
Subject to the limitations of Section 4.13, the chairperson of the Board,
the chief executive officer or the president of this Corporation, or any other
person authorized by the Board, is authorized to vote, represent, and exercise
on behalf of this Corporation all rights incident to any and all shares of any
other corporation or corporations standing in the name of this Corporation. The
authority granted herein may be exercised either by such person directly or by
any other person authorized to do so by proxy or power of attorney duly executed
by such person having the authority.
6.15 AUTHORITY AND DUTIES OF OFFICERS.
In addition to the foregoing authority and duties, all officers of the
Corporation shall respectively have such authority and perform such duties in
the management of the business of the Corporation as may be designated from time
to time by the Board or the stockholders.
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ARTICLE VII - RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS.
The Corporation shall, either at its principal executive office or at such
place or places as designated by the Board, keep a record of its stockholders
listing their names and addresses and the number and class of shares held by
each stockholder, a copy of these Bylaws as amended to date, accounting books,
and other records.
Any stockholder, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose, and to make copies
and extracts from (1) the Corporation's stock ledger, a list of its
stockholders, and its other books and records; and (2) a Subsidiary's books and
records, to the extent that (i) the Corporation has actual possession and
control of such records of such Subsidiary; or (ii) the Corporation could obtain
such records through the exercise of control over such Subsidiary, provided that
as of the date of the making of the demand: (A) the stockholder inspection of
such books and records of the Subsidiary would not constitute a breach of an
agreement between the Corporation or the Subsidiary and a Person or Persons not
affiliated with the Corporation; and (B) the Subsidiary would not have the right
under the law applicable to it to deny the Corporation access to such books and
records upon demand by the Corporation. In every instance where the stockholder
is other than a record holder of stock, the demand under oath shall state the
Person's status as a stockholder, be accompanied by documentary evidence of
beneficial ownership of the stock, and state that such documentary evidence is a
true and correct copy of what it purports to be. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent so to act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office in Delaware or at its principal place of
business.
7.2 INSPECTION BY DIRECTORS.
Any director shall have the right to examine the Corporation's stock
ledger, a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director. The Court of Chancery
of the State of Delaware is hereby vested with the exclusive jurisdiction to
determine whether a director is entitled to the inspection sought. The Court may
summarily order the Corporation to permit the director to inspect any and all
books and records, the stock ledger and the list of stockholders and to make
copies or extracts therefrom. The burden of proof shall be upon the Corporation
to establish that the inspection such director seeks is for an improper purpose.
The Court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the Court
may deem just and proper.
ARTICLE VIII - GENERAL MATTERS
8.1 CHECKS.
From time to time, the Board shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment of
money, notes or other evidences of indebtedness that
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are issued in the name of or payable to the Corporation, and only the persons so
authorized shall sign or endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.
The Board, except as otherwise provided in these Bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the Corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the Board or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES.
The shares of the Corporation shall be represented by certificates,
provided that the Board may provide by resolution or resolutions that some or
all of any or all classes or series of its stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the Corporation. Notwithstanding the adoption
of such a resolution by the Board, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed in the name of the Corporation by the
chairperson or vice-chairperson of the Board, the president or a vice-president,
and by the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of such Corporation representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
The Corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the Corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the Corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES.
The designations, the preferences, and the relative, participating,
optional or other special rights of each class of the Corporation's stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate that the Corporation shall issue to represent such
class or series of stock; PROVIDED, HOWEVER, that, except as otherwise provided
in Section 202 of the DGCL, in lieu of the foregoing requirements there may be
set forth on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock a statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, the designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
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8.5 LOST CERTIFICATES.
Except as provided in this Section 8.5, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the Corporation and cancelled at the same time. The Corporation
may issue a new certificate of stock or uncertificated shares in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the DGCL shall govern the construction of these
Bylaws. Without limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, and the term
"person" includes both a Corporation and a natural person.
8.7 DIVIDENDS.
Subject to the terms of the Certificate of Incorporation, the Board, by
resolution adopted by a majority of its members (without regard to vacancies),
may declare and pay dividends upon the shares of its capital stock. Dividends
may be paid in cash, in property, or in shares of the Corporation's capital
stock.
Subject to the terms of the Certificate of Incorporation, the Board, by
resolution adopted by a majority of its members (without regard to vacancies),
may set apart out of any of the funds of the Corporation available for dividends
a reserve or reserves for any proper purpose and may abolish any such reserve.
Such purposes shall include but not be limited to equalizing dividends,
repairing or maintaining any property of the Corporation, and meeting
contingencies.
8.8 FISCAL YEAR.
The fiscal year of the Corporation shall be December 31, unless otherwise
determined by a resolution of a majority of the entire Board (without regard to
vacancies) pursuant to Section 4.13(xi) hereof..
8.9 OPERATING BUDGETS.
Pursuant to guidelines approved by a majority of the entire Board (without
regard to vacancies), the chief executive officer shall prepare and submit, or
cause to have prepared and submitted, to the Board an updated operating budget
for each fiscal year (the "OPERATING BUDGET"), which shall set forth the
consolidated annual operating budget for the Corporation and its consolidated
Subsidiaries for the relevant fiscal year, including, without limitation,
capital expenditures, cash flow, statements of operations and ending balance
sheets, on a quarterly basis, for such fiscal year.
8.10 SEAL.
The Corporation may adopt a corporate seal, which shall be adopted and
which may be altered by the Board. The Corporation may use the corporate seal by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
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8.11 TRANSFER OF STOCK.
Subject to the provisions of the Certificate of Incorporation and
applicable law, upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction in its books.
8.12 STOCK TRANSFER AGREEMENTS.
The Corporation shall have power to enter into and perform any agreement
with any number of stockholders of any one or more classes of stock of the
Corporation to restrict the transfer of shares of stock of the Corporation of
any one or more classes owned by such stockholders in any manner not prohibited
by the DGCL.
8.13 REGISTERED STOCKHOLDERS.
The Corporation:
(i) shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends and
to vote as such owner; and
(ii) shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of another person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
8.14 WAIVER OF NOTICE.
Whenever notice is required to be given under any provision of the DGCL,
the Certificate of Incorporation or these Bylaws, a written waiver, signed by
the person entitled to notice, or a waiver by electronic transmission by the
person entitled to notice, whether before or after the time of the event for
which notice is to be given, shall be deemed equivalent to notice. Attendance of
a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice or any waiver by
electronic transmission unless so required by the Certificate of Incorporation
or these Bylaws.
ARTICLE IX - NOTICE BY ELECTRONIC TRANSMISSION
9.1 NOTICE BY ELECTRONIC TRANSMISSION.
Without limiting the manner by which notice otherwise may be given
effectively to stockholders pursuant to the DGCL, the Certificate of
Incorporation or these Bylaws, any notice to stockholders given by the
Corporation under any provision of the DGCL, the Certificate of Incorporation or
these Bylaws shall be effective if given by a form of electronic transmission
consented to by the stockholder to whom the notice is
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given. Any such consent shall be revocable by the stockholder by written notice
to the Corporation. Any such consent shall be deemed revoked if:
(i) the Corporation is unable to deliver by electronic
transmission two (2) consecutive notices given by the Corporation in accordance
with such consent; and
(ii) such inability becomes known to the secretary or an assistant
secretary of the Corporation or to the transfer agent, or other person
responsible for the giving of notice.
However, the inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action.
Any notice given pursuant to the preceding paragraph shall be deemed given:
(i) if by facsimile telecommunication, when directed to a number
at which the stockholder has consented to receive notice;
(ii) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive
notice;
(iii) if by a posting on an electronic network together with
separate notice to the stockholder of such specific posting,
upon the later of (A) such posting and (B) the giving of such
separate notice; and
(iv) if by any other form of electronic transmission, when
directed to the stockholder.
An affidavit of the secretary or an assistant secretary or of the transfer
agent or other agent of the Corporation that the notice has been given by a form
of electronic transmission shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
9.2 DEFINITION OF ELECTRONIC TRANSMISSION.
An "electronic transmission" means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be
retained, retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
ARTICLE X--INDEMNIFICATION
10.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall indemnify directors and officers of the Corporation
as provided in the Certificate of Incorporation.
10.2 INSURANCE
The Corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation
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as a director, officer, employee or agent of any of its Affiliates or another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of the DGCL.
ARTICLE XI--AMENDMENTS
(a) These Bylaws may be adopted, amended or repealed by a majority of the
voting power of the stockholders entitled to vote or by the majority of members
of the Board. The fact that such power has been so conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to adopt,
amend or repeal Bylaws, except as otherwise provided in the Certificate of
Incorporation.
(b) In addition to any requirements of law and any other provisions of
these Bylaws and the Certificate of Incorporation (and notwithstanding the fact
that a lesser percentage may be specified by law, these Bylaws or the
Certificate of Incorporation), (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) of the Certificate of
Incorporation, then the approval of such series of Class B Common Stock shall be
required (x) to alter, amend, waive or repeal, or adopt any provision of these
Bylaws which adversely affects the rights established under Section 3.14(c),
Section 4.8, Section 4.13 or Article V hereof (y) to alter, amend, waive or
repeal, or adopt any provision of these Bylaws which adversely affects the
rights established under this Article XI(b), or (z) to form any Holding Company
for the Corporation that does not contain the governance provisions represented
by the sections delineated in clauses (x) and (y) of this paragraph (b) in its
organizational documents 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) of the Certificate of Incorporation, a Unanimous Class B Approval
shall be required to alter, amend, waive or repeal, or adopt any provision of
these Bylaws which adversely affects the rights established under Section 3.3
hereof.
(c) On or prior to May 8, 2010, in addition to any requirements of law
and any other provision of these Bylaws or the Certificate of Incorporation (and
notwithstanding the fact that a lesser percentage may be specified by law, these
Bylaws or the Certificate of Incorporation), 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 alter, amend, repeal,
waive or adopt any provision of the Bylaws which would reduce the restrictions
on the authority of the Corporation, Orbitz LLC or any Controlled Affiliate of
either of them to market and sell airline travel products and services other
than in an Unbiased Manner or modify the limitations in Section 2.1 hereof
relating to the sale of airline tickets in an Opaque Manner or in Section 2.2,
or (ii) to form any Holding Company for the Corporation that does not contain
the governance provisions represented by the sections delineated in clause (i)
of this paragraph (c) in its organizational documents.
(d) After May 8, 2010, in addition to any requirements of law and any
other provision of these Bylaws or the Certificate of Incorporation (and
notwithstanding the fact that a lesser percentage may be specified by law, these
Bylaws or the Certificate of Incorporation), 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 alter, amend,
repeal, waive or adopt any provision of the Bylaws which would reduce the
restrictions on the authority of the Corporation , Orbitz LLC or any Controlled
Affiliate of either of them to market and sell airline travel products and
services other than in an Unbiased Manner or modify the limitations in Section
2.1 hereof relating to the sale of airline tickets in an Opaque Manner or in
Section 2.2,
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or (ii) to form any Holding Company for the Corporation that does not contain
the governance provisions represented by the sections delineated in clause (i)
of this paragraph (d) 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.
ARTICLE XII --DEFINITIONS
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Certificate of Incorporation. For purposes of these
Bylaws, 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.
"AIR AFFILIATE" shall have the meaning set forth in the definition of
"Qualifying Class B Holder."
"AIRLINE" means 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.
"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 to 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 Exchange Act.
"BOARD" shall have the meaning set forth in Section 1.1 hereof.
"BYLAWS" shall mean these Amended and Restated Bylaws.
"CERTIFICATE OF INCORPORATION" shall have the meaning set forth in Section
1.1 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 DIRECTORS" shall have the meaning set forth in Section 7.3 of the
Certificate of Incorporation.
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"CLASS B DIRECTORS" shall have the meaning set forth in Section 7.1(a) of
the Certificate of Incorporation.
"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).
"CONTROLLED" shall mean, with respect to a particular Person, a Person
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.
"CORPORATE CAPITALIZATION" shall have the meaning set forth in Article XV
of the Certificate of Incorporation.
"CORPORATION" shall mean Orbitz, Inc., a Delaware corporation.
"CUSTOMER" shall mean any (i) individual consumer, (ii) business traveler
or (iii) 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 have the meaning set forth in Article XV of the
Certificate of Incorporation.
"DGCL" shall have the meaning set forth in Section 3.1 hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"GLOBAL DISTRIBUTION SYSTEM" shall mean a "system" within the meaning of 14
C.F.R. Section 255.3.
"HOLDING COMPANY" shall mean one or more corporations or other entities
that Controls the Corporation.
"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 then in office without taking into account any vacancies
thereon, and excluding from such calculations of the number of directors,
directors who are Related Parties of or elected to the Board by the Person (or
any Affiliate of such Person) that is a party to the particular agreement or
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 its
Controlled Affiliates).
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"MANAGEMENT DIRECTOR" shall have the meaning set forth in Section 7.1(a) of
the Certificate of Incorporation.
"NON-OPAQUE MANNER" shall mean the provision to a Person through the
Internet of information concerning airline travel products or services in any
manner other than an Opaque Manner.
"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.
"OPAQUE SITE" shall mean a Person engaged in the business of marketing and
selling travel products in an Opaque Manner.
"OPERATING BUDGET" shall have the meaning set forth in Section 8.9 hereof.
"ORBITZ LLC" shall mean Orbitz, LLC, a Delaware limited liability company.
"PERSON" shall mean any individual, entity, firm, corporation, partnership,
association, limited liability company, joint-stock company, trust, or
unincorporated organization.
"PRIOR COMMERCIAL AGREEMENT" shall have the meaning set forth in the
definition of "Qualifying Class B Holder".
"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.
"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 (the "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 its 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 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 Controlled 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 Class B Common Stockholder or such 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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"QUALIFIED IPO" shall mean the initial BONA FIDE, firm commitment
underwritten public offering of the Corporation's Common Stock pursuant to a
registration statement declared effective under the Securities Act of 1933, as
amended, 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.
"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 a 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.
"SERIES B-AA DIRECTOR" shall have the meaning set forth in Section 7.1(a)
of the Certificate of Incorporation.
"SERIES B-CO DIRECTOR" shall have the meaning set forth in Section 7.1(a)
of the Certificate of Incorporation.
"SERIES B-DL DIRECTOR" shall have the meaning set forth in Section 7.1(a)
of the Certificate of Incorporation.
"SERIES B-NW DIRECTOR" shall have the meaning set forth in Section 7.1(a)
of the Certificate of Incorporation.
"SERIES B-UA DIRECTOR" shall have the meaning set forth in Section 7.1(a)
of the Certificate of Incorporation.
"SECURITIES" shall mean, with respect to: (a) any corporation, any of the
equity securities of such corporation and any obligations to purchase or options
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.
"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 _________, 2003 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
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.
"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).
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"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 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 respective Customers; (c) in the air display, the
Corporation or Controlled Affiliate 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.
* * * * *
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