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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
SCHEDULE TO
(Amendment No. 1)
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
_______________________
Orbitz, Inc.
(Name of Subject Company (issuer))
Robertson Acquisition Corporation
Cendant Corporation
(Name of Filing Persons (Offerors))
Class A Common Stock, par value $.001 per Share
(Titles of Classes of Securities)
68556Y 10 0
(CUSIP Number of Class of Securities)
James E. Buckman, Esq.
Vice Chairman and General Counsel
Cendant Corporation
9 West 57th Street
New York, New York 10019
(212) 413-1800
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of the filing person)
Copies to:
David Fox, Esq. Eric J. Bock
Skadden, Arps, Slate, Meagher & Flom LLP Executive Vice President - Law
Four Times Square and Corporate Secretary
New York, New York 10036 Cendant Corporation
(212) 735-3000 9 West 57th Street
New York, New York 10019
(212) 413-1800
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee**
$1,233,135,134 $156,239
* Estimated for purposes of calculating the filing fee only. This calculation
assumes the purchase of 14,356,179 shares of class A common stock of Orbitz,
Inc. at the tender offer price of $27.50 per share of class A common stock.
The transaction value also assumes the purchase of 27,173,461 shares of class
B common stock of Orbitz, Inc. at the tender offer price of $27.50 per share
of class B common stock. The transaction value also includes the offer price
of $27.50 less $12.62, which is the average exercise price of outstanding
options, multiplied by 6,120,298, the estimated number of options outstanding.
** The amount of the filing fee, calculated in accordance with Rule 0-11 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Fee
Rate Advisory No. 3 for fiscal year 2005, equals $126.70 per million of
transaction value, or $156,239.
|X| Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $156,239 Filing Party: Cendant Corporation
Form or Registration No. Schedule TO-T Date Filed: October 6, 2004
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
|x| third-party tender offer subject to Rule 14d-1.
|_| issuer tender offer subject to Rule 13e-4.
|_| going-private transaction subject to Rule 13e-3.
|_| amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: |_|
This Amendment No. 1 (this "Amendment") amends and supplements the
Tender Offer Statement on Schedule TO (the "Statement") originally filed with
the Securities and Exchange Commission (the "Commission") on October 6, 2004,
by Robertson Acquisition Corporation, a Delaware corporation (the "Purchaser")
and an indirect wholly owned subsidiary of Cendant Corporation, a Delaware
corporation ("Cendant"), and Cendant, relating to a tender offer by the
Purchaser to purchase all outstanding shares of class A common stock, par
value $.001 per share (the "Class A Common Stock"), of Orbitz, Inc., a
Delaware corporation ("Orbitz" or the "Company"), for a purchase price of
$27.50 per share (the "Shares"), 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 (the "Letter of Transmittal"), copies of which
are filed as Exhibit (a)(1)(A) and Exhibit (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 Offer to
Purchase or in the Statement.
Item 4. Terms of the Transaction.
Item 4 of the Statement is hereby amended and supplemented as
follows:
The Offer to Purchase is hereby amended by restating the last
sentence of the penultimate paragraph of Section 1 of the Offer to Purchase
entitled "Terms of the Offers" to read as follows:
"In the event the Purchaser elects to include a Subsequent Offering
Period, it will notify stockholders of Orbitz by making a public announcement,
consistent with the requirements of the SEC, not later than 9:00 a.m., New
York City time, on the first business day after the Expiration Date."
The Offer to Purchase is hereby amended by restating the first two
sentences of the ultimate paragraph of Section 14 of the Offer to Purchase
entitled "Certain Conditions of the Offers" to read as follows:
"The foregoing conditions are for the sole benefit of Cendant and the
Purchaser, may be asserted by Cendant or the Purchaser regardless of the
circumstances giving rise to such condition, and may be waived by Cendant or
the Purchaser in whole or in part from time to time at any time prior to the
Expiration Date or, with respect to conditions relating to regulatory
approvals, prior to the payment for any Shares pursuant to the Offers, in each
case subject to the terms of the Merger Agreement. The failure by Cendant or
the Purchaser at any time to exercise any of the foregoing rights will not be
deemed a waiver of any such right and each such right will be deemed an
ongoing right that may be exercised from time to time."
Item 11. Additional Information.
Item 11 of the Statement is hereby amended and supplemented as
follows:
The Offer to Purchase is hereby amended by restating the paragraph
captioned "Bankruptcy Court Approval" of Section 13 of the Offer to Purchase
entitled "The Merger Agreement, Stockholder Agreements and Other Agreements"
to read as follows:
"Bankruptcy Court Approval. Pursuant to the Merger Agreement, Orbitz,
the Purchaser and Cendant will use their commercial best efforts to
facilitate, and cooperate with the applicable bankruptcy courts to obtain, any
approvals required by such courts in connection with the transactions
contemplated by the Merger Agreement. Issuance of the United Bankruptcy Court
Approval is a condition to the Offers, and is required in order for United to
take certain actions in connection with the Offers and the Merger, as
described in the subsection below captioned "Stockholder Agreements". See
Section 14--"Certain Conditions of the Offers" and Section 15--"Certain Legal
Matters" for a description of the United Bankruptcy Court Approval."
The Offer to Purchase is hereby amended by restating the penultimate
paragraph of Section 15 of the Offer to Purchase entitled "Certain Legal
Matters" to read as follows:
"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."
SIGNATURES
After due 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.
ROBERTSON ACQUISITION CORPORATION
By: /s/ Eric J. Bock
-----------------------
Name: Eric J. Bock
Title: Executive Vice President,
Secretary and Director
CENDANT CORPORATION
By: /s/ Eric J. Bock
------------------------
Name: Eric J. Bock
Title: Executive Vice President -
Law and Corporate Secretary
Date: October 22, 2004
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Four Times Square
New York 10036-6522
________
(212) 735-3000
Fax: (212) 735-2000
October 22, 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
RE: Orbitz, Inc. Schedule TO-T filed by Cendant
Corporation and Robertson Acquisition Corporation
on October 6, 2004 (File No. 005-79405)
Dear Ms. Griffith:
On behalf of Cendant Corporation, a Delaware corporation ("Cendant"),
and Robertson Acquisition Corporation, a Delaware corporation and an indirect
wholly owned subsidiary of Cendant, and pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder, today we have submitted for filing, via direct
electronic transmission, Amendment No. 1 to the above-referenced Schedule TO-T
(the "Schedule TO").
The Schedule TO relates to the offer by Robertson Acquisition
Corporation to purchase all the outstanding shares of class A common stock,
par value $.001 per share, of Orbitz, Inc., a Delaware corporation ("Orbitz"),
upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated October 6, 2004 (the "Offer to Purchase"), a copy of which was
filed with the Schedule TO as Exhibit (a)(1)(A) thereto. Capitalized terms
used herein shall have the meanings assigned to such terms in the Offer to
Purchase or the Schedule TO.
Enclosed for your review, we have provided three courtesy copies of
Amendment No. 1 to the Schedule TO. In connection with your comments regarding
the Schedule TO, as set forth in your letter dated October 20, 2004, Cendant
and Robertson Acquisition Corporation offer the following responses.
Offer to Purchase
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
filing persons are in possession of all facts relating to a company's
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 filing persons acknowledging that:
o the filing persons are responsible for the adequacy and
accuracy of the disclosure in the filings;
o 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
o the filing persons 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: Cendant and Robertson Acquisition Corporation, the filing
persons, acknowledge that:
o they are responsible for the adequacy and accuracy of the
disclosure in the filings;
o 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
o they 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.
The Tender Offers, page 11
Terms of the Offer
2. Refer to the last sentence in the last full paragraph on page 13.
Revise to state how and when you will notify Orbitz stockholders that
Cendant has determined to provide a subsequent offer period. As
currently disclosed, Orbitz stockholders may expect to receive notice
of a subsequent offer period five business days prior to expiration
of the offer.
Response: We have noted your comment and revised the language of the
last sentence of the penultimate paragraph of Section 1 of the Offer to
Purchase to make clear that if the Purchaser elects to provide a subsequent
offering period, it will notify Orbitz stockholders by a public announcement,
not later than 9:00 a.m., New York City time, on the first business day after
the Expiration Date.
The Merger Agreement, Stockholder Agreements and Other Agreements, page 35
3. We note that it will be necessary for certain stockholders to obtain
bankruptcy court approval for their participation in the offer.
Explain what approvals are required, referencing the particular
stockholder and the relevant court.
Response: In response to your comment, to the knowledge of Cendant
and Robertson Acquisition Corporation, the only required bankruptcy court
approval referred to in Section 13 of the Offer to Purchase in connection with
the offer is the approval of the United States Bankruptcy Court for the
Northern District of Illinois (Eastern Division) required for the
participation of United Air Lines, Inc. ("United"), a stockholder of Orbitz,
Inc., in the offer, referred to in the Offer to Purchase, as the "United
Bankruptcy Court Approval". We have revised the language of the paragraph
captioned "Bankruptcy Court Approval" of Section 13 of the Offer to Purchase
to clarify the forgoing. We also describe the requirement of this approval in
Section 15 of the Offer to Purchase. We have revised the penultimate paragraph
of Section 15 of the Offer to Purchase to reflect that, on October 15, 2004,
the Bankruptcy Court issued an order granting the relief sought in the motion
filed on October 1, 2004 by United and its related debtors and
debtors-in-possession in connection with the United Bankruptcy Court Approval.
Certain Conditions of the Offers, page 59
4. The statement that the conditions may be waived by Cendant "in whole
or in part at any time and from time to time in the sole discretion
of Cendant or the Purchaser" implies that conditions may be waived
after expiration. Revise the disclosure to clarify that all
conditions, other than regulatory approvals, will be satisfied or
waived prior to expiration. Please be aware that if you waive a
material condition, the offer must remain open for at least five
business days after the waiver.
Response: We have noted your comment and revised the first two
sentences of the ultimate paragraph of Section 14 of the Offer to Purchase to
make clear that all conditions of the offer, other than regulatory approvals,
must be satisfied or waived before the expiration of the offer.
If you have any questions with respect to the foregoing, please
telephone David Fox at (212) 735-2534 or myself at (212) 735-2464.
Very truly yours,
/s/ Eran Zupnik
Eran Zupnik
Enclosures
cc: Eric J. Bock, Esq., Cendant Corporation
David Fox, Esq., Skadden, Arps, Slate, Meagher & Flom LLP