Orbitz Inc SEC Form SC 14D9/A Filed October 28, 2004 Last Updated February 2, 2020 at 11:50 PM ST

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Submission Parts

Sequence Document Type File Name Description
1 SEC Form AMENDMENT NO. 1 TO SCHEDULE 14D-9
2 SEC Form

AMENDMENT NO. 1 TO SCHEDULE 14D-9

Amendment No. 1 to Schedule 14D-9

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 14D-9

(Amendment No. 1)

 

Solicitation/Recommendation Statement under

Section 14(d)(4) of the Securities Exchange Act of 1934             

 


 

ORBITZ, INC.

(Name of Subject Company)

 

ORBITZ, INC.

(Name of Persons Filing Statement)

 

CLASS A COMMON STOCK, PAR VALUE $.001 PER SHARE

CLASS B COMMON STOCK, PAR VALUE $.001 PER SHARE

(Title of Class of Securities)

 

68556Y 10 0

(CUSIP Number of Class A Common Stock)

(No CUSIP for Class B Common Stock)

 

Jeffrey G. Katz

Chairman, President and Chief Executive Officer

Orbitz, Inc.

200 S. Wacker Drive, Suite 1900

Chicago, Illinois 60606

(312) 894-5000

 

(Name, Address and Telephone Number of Person Authorized to Receive Notices and

Communications on Behalf of the Persons Filing Statement)

 


 

With copies to:

 

   

Gary R. Doernhoefer, Esq.

Richard D. Buchband, Esq.

Orbitz, Inc.

200 S. Wacker Drive, Suite 1900

Chicago, Illinois 60606

(312) 894-5000

   

Mark D. Gerstein, Esq.

Christopher D. Lueking, Esq.

Latham & Watkins LLP

233 S. Wacker Drive, Suite 5800

Chicago, Illinois 60606

(312) 876-7700

     

Robert F. Wall, Esq.

Winston & Strawn LLP

35 W. Wacker Drive

Chicago, Illinois 60601

(312) 558-5600

 


 

  ¨ Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 



This Amendment No. 1 (this “Amendment”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (the “Statement”) originally filed with the Securities and Exchange Commission on October 6, 2004, by Orbitz, Inc., a Delaware corporation (the “Company” or “Orbitz”), relating to the tender offers by Robertson Acquisition Corporation, a Delaware corporation (“Purchaser”) and an indirect wholly owned subsidiary of Cendant Corporation (“Parent”), a Delaware corporation, disclosed in a Tender Offer Statement on Schedule TO dated October 6, 2004 pertaining to the Company’s Class A Common Stock, par value $.001 per share (the “Class A Common Stock”), filed by Parent, to purchase all of the shares of Class A Common Stock and the Company’s Class B Common Stock, par value $.001 per share (the “Class B Common Stock” and together with the Class A Common Stock, the “Shares”), which are not currently owned by the Purchaser, at a purchase price of $27.50 per Share (such price, or any such higher price per Share as may be paid, the “Offer Price”), net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase dated October 6, 2004 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with the Offer to Purchase and any amendments or supplements thereto, are referred to herein collectively as the “Offers”). The Offer to Purchase and the Letter of Transmittal are filed as Exhibits (a)(1)(A) and (a)(1)(B) to the Statement, respectively. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Statement.

 

Item 3.    Past Contacts, Transactions, Negotiations and Agreements.

 

(a) Certain Agreements, Arrangements or Understandings Between the Company or its Affiliates and the Company or its Executive Officers, Directors or Affiliates

 

Item 3(a) of the Statement is hereby amended and supplemented as follows:

 

The Statement is hereby amended by restating the second sentence of the paragraph captioned “Agreements with Executive Officers” to read as follows:

 

In addition, if the employment of any such senior executive is terminated by the Company after a “change of control” without “cause” or by any such senior executive in a “constructive termination,” in each case as defined in such employment agreements, such senior executive will become entitled to the payment of severance, the accelerated vesting of Company Stock Options and the accelerated vesting of restricted Class A Common Stock as follows:

 

Name


   Severance
Payment


  

Number of Options

Subject to

Accelerated Vesting


  

Number of Shares

of Restricted

Class A Common Stock

Subject to

Accelerated Vesting


Jeffrey G. Katz

   $ 2,253,000    357,389    50,000

John J. Park

   $ 738,000    100,348    12,500

Christopher T. Hjelm

   $ 697,000    161,112    —  

John R. Samuel

   $ 599,000    95,834    —  

 

2


Item 5. Persons/Assets Retained, Employed, Compensated or Used.

 

Item 5 of the Statement is hereby amended and supplemented as follows:

 

The Statement is hereby amended by restating the second and third sentences of the second paragraph to read as follows:

 

Pursuant to the terms of an engagement letter, Credit Suisse First Boston will receive a fee of approximately $8 million for its financial advisory services (including, rendering its opinion), of which approximately $7.5 million is contingent upon the consummation of the Offers.

 

The Statement is hereby amended by restating the first and second sentences of the penultimate paragraph to read as follows:

 

Pursuant to a letter agreement dated as of June 21, 2004 between the Special Committee and Merrill Lynch, Merrill Lynch will receive a fee of approximately $7.5 million for its financial advisory services (including, rendering its opinion), of which approximately $5.5 million is contingent upon the consummation of the Offers.

 

Item 8. Additional Information.

 

Item 8 of the Statement is hereby amended and supplemented as follows:

 

The Statement is hereby amended by adding the following paragraph after the ultimate paragraph of Item 8:

 

    United Bankruptcy Court Approval

 

On October 1, 2004, United and its related debtors and debtors-in-possession filed a motion in the Bankruptcy Court seeking the United Bankruptcy Court Approval and other related relief. On October 15, 2004, the Bankruptcy Court issued an order granting the relief sought by United.

 

3


SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

ORBITZ, INC.

By:  

/s/ JEFFREY G. KATZ

Name:

 

Jeffrey G. Katz

Title:

 

Chairman, President and Chief Executive Officer

 

 

Dated: October 28, 2004

[Unnamed Attachment]

SEC Letter

[Latham & Watkins LLP]

 

October 28, 2004

 

Julia E. Griffith, Esq.

Special Counsel

Office of Mergers and Acquisitions

Securities and Exchange Commission

450 Fifth Street, N.W.

Washington, D.C. 20549-0303

 

  Re: Solicitation/Recommendation Statement on Schedule 14D-9 filed by Orbitz, Inc. on October 6, 2004 (File No. 005-79405)

 

Dear Ms. Griffith:

 

On behalf of Orbitz, Inc., a Delaware corporation (the “Company”), and pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, today we have submitted for filing, via direct electronic transmission, Amendment No. 1 to the above-referenced Solicitation/Recommendation Statement on Schedule 14D-9 (the “Schedule 14D-9”).

 

Enclosed for your review, we have provided three courtesy copies of Amendment No. 1 to the Schedule 14D-9. In connection with your comments regarding the Schedule 14D-9, as set forth in your letter dated October 20, 2004, the Company offers the following responses.

 

General

 

1. We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filings reviewed by the staff to be certain that they have provided all information investors require. Since the company and its management are in possession of all facts relating to their disclosure, they are responsible for the accuracy and adequacy of the disclosure they have made.

 

In connection with responding to our comments, please provide, in writing, a statement from the company acknowledging that:

 

  the company is responsible for the adequacy and accuracy of the disclosure in the filings;


Julie E. Griffith, Esq.

October 28, 2004

Page 2

 

[Latham & Watkins LLP]

 

  staff comments or changes to disclosure in response to staff comments in the filings reviewed by the staff do not foreclose the Commission from taking any action with respect to the filing; and

 

  the company and its management may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.

 

In addition, please be advised that the Division of Enforcement has access to all information you provide to the staff of the Division of Corporation Finance in our review of your filing or in response to our comments on your filing.

 

Response: The Company acknowledges that:

 

  it is responsible for the adequacy and accuracy of the disclosure in the filings;

 

  staff comments or changes to disclosure in response to staff comments in the filings reviewed by the staff do not foreclose the Commission from taking any action with respect to the filing; and

 

  the Company and its management may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.

 

Schedule 14D-9

 

2. Expand your disclosure under Item 3(a) to state what portion of the $11.4 million severance payment would be paid to each of the senior executives in the event of “constructive termination.”

 

Response: We have noted your comment and supplementally advise the staff that the $11.4 million severance amount referenced in our initial filing erroneously included amounts to be paid to employees of the Company other than our senior executive officers and also included amounts to be paid to our senior executive officers upon the acceleration of shares of restricted Class A Common Stock. Similarly, the 749,116 number of Company Stock Options subject to accelerated vesting referenced in Item 3(a) erroneously included options held by persons other than the Company’s senior executive officers. Accordingly, we have revised and expanded our disclosure under Item 3(a) to clearly state (i) the amount of the severance payment to be paid to each of the senior executives in the event of “constructive termination”, (ii) the number of Company Stock Options held by each of our senior executive officers that will be subject to accelerated vesting in the event of “constructive termination”; and (iii) the number of shares of restricted Class A Common Stock held by each of our senior executive officers that will be subject to accelerated vesting in the event of “constructive termination.”

 

3. Expand your disclosure in response to Item 5 to quantify the amounts paid or agreed to be paid to Credit Suisse First Boston LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated in respect of their services as financial advisors in the transaction.

 

Response: We have noted your comment and have expanded our disclosure in response to Item 5 to quantify the amounts paid or agreed to be paid to Credit Suisse First Boston LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated in respect of their services as financial advisors in the transaction.


Julie E. Griffith, Esq.

October 28, 2004

Page 3

 

[Latham & Watkins LLP]

 

If you have any questions with respect to the foregoing, please telephone Cathy Birkeland at (312) 876-7681 or myself at (312) 876-7680.

 

 

Very truly yours,
/s/    Christopher D. Lueking

Christopher D. Lueking

of LATHAM & WATKINS LLP

 

Enclosures

 

cc: Gary Doernhoefer, Esq., Orbitz, Inc.
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