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EXHIBIT 10.9
FORM OF OPTION AGREEMENT
This Option Agreement (the "Agreement") is made and entered into as of
_______, 2000 by and between Sabre Inc., a Delaware corporation ("Sabre"), and
Xxxxxxxxxxx.xxx Inc., a Delaware corporation ("Xxxxxxxxxxx.xxx").
WHEREAS, Sabre, Travelocity Holdings, Inc., a Delaware corporation,
Xxxxxxxxxxx.xxx and Preview Travel, Inc., a Delaware corporation ("Preview")
have entered into an Agreement and Plan of Merger, dated October __, 1999 (the
"Merger Agreement") pursuant to which Preview will be merged with and into
Xxxxxxxxxxx.xxx, with Xxxxxxxxxxx.xxx as the surviving corporation; and
WHEREAS, it is a condition precedent to the obligation of Preview to
consummate the transactions contemplated by the Merger Agreement that the
parties hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and in consideration of Preview consummating the transactions
contemplated by the Merger Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used herein, the following terms shall
have the respective meanings set forth below:
"Effective Time" shall have the meaning ascribed to that term
in the Merger Agreement.
"Option Shares" shall mean that number of shares of
Xxxxxxxxxxx.xxx Common Stock equal to $50,000,000 divided by the Current Market
Price.
"Current Market Price" means the average closing price per
share of Preview Common Stock for the ten (10) trading days ending on the
trading day immediately prior to the Effective Time.
"Xxxxxxxxxxx.xxx Common Stock" means Common Stock, par value
$.001 per share, of Xxxxxxxxxxx.xxx, after the Effective Time.
"Preview Common Stock" means Common Stock, par value $.001 per
share, of Preview, prior to the Effective Time.
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Section 1.2 Put Option. (a) At any time after the Effective Time and on
or before the date ten business days after the Effective Time, Xxxxxxxxxxx.xxx
shall have the option (the "Option") to sell to Sabre (or its designee), and
Sabre shall be obligated to purchase (or cause its designee to purchase), all or
any portion of the Option Shares at a price per share equal to the Current
Market Price.
(b) Xxxxxxxxxxx.xxx may exercise the Option by sending written
notice to Sabre on or before 5:00 p.m. Dallas, Texas time on the tenth business
day following the Effective Time.
(c) The sale and purchase of the Option Shares (the "Closing")
pursuant to this Agreement shall take place at the offices of Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, XX 00000, two business
days after the Xxxxxxxxxxx.xxx provides notice to Sabre or such other date as is
agreed by the parties. The date on which the Closing occurs is called the
"Closing Date."
Section 1.3 Deliveries at Closing. At the Closing:
(a) Sabre (or its designee) shall deliver to Xxxxxxxxxxx.xxx
the purchase price of the Option Shares by cash, check or wire transfer to an
account designated by Xxxxxxxxxxx.xxx not less than one business day prior to
the Closing; and
(b) Xxxxxxxxxxx.xxx shall deliver to Sabre a certificate or
certificates representing the Option Shares registered in the name of Sabre (or
its designee).
Section 1.4 Use of Proceeds. The proceeds from the sale of Option
Shares under this Agreement shall be transferred by Xxxxxxxxxxx.xxx to
Xxxxxxxxxxx.xxx LP, a Delaware limited partnership, as an additional capital
contribution in exchange for additional partnership units as provided in Section
4.7 of the Amended and Restated Agreement of Limited Partnership of
Xxxxxxxxxxx.xxx LP.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XXXXXXXXXXX.XXX
Xxxxxxxxxxx.xxx hereby represents and warrant to Sabre as follows:
Section 2.1 Organization; Good Standing. Xxxxxxxxxxx.xxx is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
Section 2.2 Authority; Consents; No Conflicts. Xxxxxxxxxxx.xxx has all
requisite corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by Xxxxxxxxxxx.xxx
of this Agreement and consummation by Xxxxxxxxxxx.xxx of the
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transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Xxxxxxxxxxx.xxx; and no other
corporate proceedings on the part of Xxxxxxxxxxx.xxx or their respective
security holders are necessary to authorize the execution, delivery and
performance by Xxxxxxxxxxx.xxx of the Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Xxxxxxxxxxx.xxx, and constitutes the legal, valid and
binding obligation of Xxxxxxxxxxx.xxx, enforceable against Xxxxxxxxxxx.xxx in
accordance with its terms, except as enforceability may be limited by applicable
laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws of general application relating to or affecting
enforcement of creditors' rights and except to the extent that injunctive or
other equitable relief is within the discretion of the court. Neither the
execution, delivery or performance by Xxxxxxxxxxx.xxx of this Agreement, nor the
consummation by Xxxxxxxxxxx.xxx of the transactions contemplated hereby will,
with or without the giving of notice or the passage of time, or both, (i)
violate or conflict with any provision of the Certificate of Incorporation or
Bylaws of Xxxxxxxxxxx.xxx; (ii) violate, conflict with, result in any breach of
or constitute a default under, or result in or permit the modification,
amendment, termination or cancellation of, or accelerate the performance
required by any terms of, as the case may be, any agreement or instrument, to
which Xxxxxxxxxxx.xxx is a party; (iii) result in the creation or imposition of
any security interest, encumbrance, claim, lien or charge of any kind (a "Lien")
upon any of the property owned by Xxxxxxxxxxx.xxx; (iv) violate or conflict with
any law, ordinance, code, rule, regulation, standard, judgment, decree, writ,
ruling, injunction, order or other requirement of any governmental,
administrative or judicial authority or the common law (a "Legal Requirement")
applicable to Xxxxxxxxxxx.xxx; or (v) require any authorization, order, permit,
consent or approval of, or notice to, or filing, registration or qualification
(an "Approval"), with any national, regional, federal, state or local
government, any state or other political subdivision thereof, any person
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any government authority,
agency, department, board, commission or instrumentality of any jurisdiction,
and any court, tribunal or arbitrator(s) of competent jurisdiction, and any
self-regulatory organization (a "Government Authority") or Approval of, to or
with any other third party to be obtained or made by Xxxxxxxxxxx.xxx which has
not heretofore been obtained or made.
Section 2.3 Valid Issuance of Common Stock. The shares being issued
hereunder, when issued, sold and delivered in accordance with the term of this
Agreement for the consideration expressed herein, will be duly and validly
issued, fully paid, and nonassessable, and will be free of restrictions on
transfer other than restrictions on transfer under applicable state and federal
securities laws.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SABRE
Sabre represents and warrants to Xxxxxxxxxxx.xxx as follows:
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Section 3.1 Organization. Sabre, is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Section 3.2 Authority; Consents; No Conflicts. Sabre has all requisite
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution, delivery and performance by Sabre of this Agreement, and
the performance and consummation by Sabre of the transactions contemplated
hereby, have been duly and validly authorized by all necessary corporate action
on the part of Sabre; and no other corporate proceedings on the part of Sabre is
necessary to authorize the execution, delivery and performance by Sabre of this
Agreement or the consummation by Sabre of the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Sabre and
constitutes the legal, valid and binding obligation of Sabre, enforceable
against Sabre in accordance with its terms, except as enforceability may be
limited by applicable laws relating to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws of general application
relating to or affecting enforcement of creditors' rights and except to the
extent that injunctive or other equitable relief is within the discretion of the
court. Neither the execution, delivery or performance by Sabre of this
Agreement, nor the consummation of the transactions contemplated by this
Agreement, will, with or without the giving of notice or the passage of time, or
both, (i) violate or conflict with any provision of the Certificate of
Incorporation or Bylaws of Sabre; (ii) violate, conflict with, result in any
breach of or constitute a default under, or result in or permit the
modification, amendment, termination or cancellation of or accelerate the
performance required by any terms of, as the case may be, any agreement or
instrument to which Sabre is a party; (iii) result in the creation of any Lien
upon any of the property owned by Sabre; (iv) violate or conflict with any Legal
Requirements applicable to Sabre; or (v) require any Approval by a Government
Authority or other Approval of, to or with any other third party to be obtained
or made by Sabre which has not heretofore been obtained or made.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party shall bear its respective
fees and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby.
Section 4.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (REGARDLESS OF
THE LAWS THAT MIGHT BE APPLICABLE UNDER PRINCIPLES OF CONFLICTS OF LAW) AS TO
ALL MATTERS, INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT AND
PERFORMANCE.
Section 4.3 Notices, etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing (including facsimile or similar writing) and shall be given,
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if to Xxxxxxxxxxx.xxx, to
Sabre
Attention: Executive Vice President and
Chief Financial Officer
Facsimile No.:
and a copy to
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: 000-000-0000
if to Sabre to
Sabre
Attention: General Counsel
Facsimile No.:
with a copy to
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: 000-000-0000
or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the other parties. Each such notice,
request or other communication shall be effective (a) if given by facsimile,
when such facsimile is transmitted to the facsimile number specified in this
Section and the appropriate facsimile confirmation is received or (b) if given
by any other means, when delivered at the address specified in this Section.
Section 4.4 Binding Effect; Assignment; Third-Party Beneficiaries. This
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns. No party may assign its
rights and obligations hereunder without the prior written consent of the other
party. This Agreement is not intended to create third-party beneficiaries.
Section 4.5 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that the
parties need not sign the same counterpart.
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Section 4.6 Modifications. This Agreement may be amended or modified
only by a written instrument duly executed by or on behalf of each party. No
breach of any covenant, agreement, warranty or representation shall be deemed
waived unless expressly waived in writing by and on behalf of the party who may
assert such breach.
Section 4.7 Severability. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
Section 4.8 Entire Agreement. This Agreement incorporates all prior
understandings relating to the subject matter hereof and sets forth the entire
agreement of the parties with respect to the matters set forth herein.
Section 4.9 Survival. All representations, warranties, covenants and
agreements contained in or made pursuant to this Agreement shall survive (and
not be affected in any respect by) the Closing indefinitely, irrespective of any
investigation conducted by any party hereto and any information which any party
may receive.
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IN WITNESS WHEREOF, Sabre and Xxxxxxxxxxx.xxx have executed this
Agreement on the date first above written.
SABRE INC.
By: ------------------------------
Name:
Title:
XXXXXXXXXXX.XXX INC.
By: ------------------------------
Name:
Title:
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