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EXHIBIT 10.10
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of _______, ____ by
and among Xxxxxxxxxxx.xxx Inc., a Delaware corporation (the "Company"),
Travelocity Holdings, Inc., a Delaware corporation ("Travelocity"), TSGL
Holding, Inc., a Delaware corporation ("TSGL Holding"), and Sabre Inc., a
Delaware corporation ("Sabre", and collectively with Travelocity and TSGL
Holding, the "Sabre Parties").
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as
of ________, 1999 by and among Sabre, Travelocity, the Company and Preview
Travel, Inc., a Delaware corporation ("Preview"), providing for the merger of
Preview with and into the Company, Travelocity shall receive shares of Series A
Preferred Stock, $.001 par value, of the Company in such merger ("Series A
Preferred Stock");
WHEREAS, the Series A Preferred Stock issued to Travelocity is
convertible into Common Stock; and
WHEREAS, at the effective time of the Merger, the Company,
Travelocity, TSGL Holding, and Sabre will enter into an Amended and Restated
Agreement of Limited Partnership of Xxxxxxxxxxx.xxx LP pursuant to which
Xxxxxxxxxxx.xxx LP, a Delaware limited partnership ("Xxxxxxxxxxx.xxx LP"), will
issue to the Sabre Parties limited partnership and general partnership units
which may be exchanged by the Sabre Parties for Common Stock.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and obligations hereinafter set forth, the parties hereby agree
as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Certificate of Incorporation" means the Restated Certificate
of Incorporation of the Company, as it may be amended or restated hereafter from
time to time.
"Commission" means the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act.
"Common Stock" means any shares of common stock, par value
$0.001 per share, of the Company, now or hereafter authorized to be issued, and
any and all securities of any kind whatsoever of the Company which may be issued
on or after the date hereof in respect of, in exchange for, or upon conversion
of shares of Common Stock pursuant to a merger, consolidation, stock split,
stock dividend, recapitalization of the
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Company or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
"Person" means a corporation, an association, a partnership,
an organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Registrable Securities" means (i) any shares of Common Stock
owned by any Sabre Party, irrespective of the date of acquisition, (ii) any
shares of Common Stock issued or issuable upon the conversion, exercise or
exchange of any shares of Series A Preferred Stock or Xxxxxxxxxxx.xxx LP
partnership units held by any Sabre Party, and (iii) any shares of Common Stock
issued with respect to the Common Stock referred to in clauses (i), (ii) or
(iii) by way of a stock dividend, stock split or reverse stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or otherwise. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities (a) when a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, or (b) when such securities shall have been
sold (other than in a privately negotiated sale) pursuant to Rule 144 (or any
successor provision) under the Securities Act. Any certificate evidencing the
Registrable Securities shall bear a legend stating that the securities have not
been registered under the Securities Act and setting forth or referring to the
restrictions on transferability and sale of the securities.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to Section 2
hereof, including, without limitation, all registration, filing and applicable
national securities exchange fees, all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of counsel to the
underwriters or the Sabre Parties in connection with "blue sky" qualification of
the Registrable Securities and determination of their eligibility for investment
under the laws of the various jurisdictions), all word processing, duplicating
and printing expenses, all expenses incurred in connection with any road show,
all messenger and delivery expenses, the fees and disbursements of counsel for
the Company and of its independent public accountants, including the expenses of
"cold comfort" letters or any special audits required by, or incident to, such
registration, all fees and disbursements of underwriters (other than
underwriting discounts and commissions), all transfer taxes, and all fees and
expenses of counsel to the Sabre Parties; provided, however, that Registration
Expenses shall exclude, and the Sabre Parties shall pay,
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underwriting discounts and commissions in respect of the Registrable Securities
being registered.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
2. Registration Under Securities Act, etc.
2.1 Registration on Request.
(a) Request. Each Sabre Party shall have the
right to require the Company to effect the registration under the Securities Act
of all or part of the Registrable Securities, by delivering a written request
therefor to the Company specifying the number of shares of Registrable
Securities and the intended method of distribution. The Company shall (i) use
its reasonable best efforts to effect the registration under the Securities Act
(including by means of a shelf registration pursuant to Rule 415 under the
Securities Act if so requested in such request and if the Company is then
eligible to use such a registration) of the Registrable Securities which the
Company has been so requested to register by one or more of the Sabre Parties,
for distribution in accordance with the intended method of distribution set
forth in the written request delivered by one or more of the Sabre Parties, such
registration to be effected as expeditiously as possible, and (ii) if requested
by one or more of the Sabre Parties, use its reasonable best efforts to obtain
acceleration of the effective date of the registration statement relating to
such registration.
(b) Registration of Other Securities.
Whenever the Company shall effect a registration pursuant to this Section 2.1,
the Company may include other securities of the Company or which are held by
Persons who, by virtue of agreements with the Company, are entitled to include
their securities in any such registration. In the case of an underwritten
offering pursuant to Section 2.1, if holders of securities of the Company other
than Registrable Securities who are entitled, by contract with the Company, to
have securities included in such a registration (the "Other Stockholders")
request such inclusion, the Company shall offer to include the securities of
such Other Stockholders in the underwriting and may condition such offer on
their acceptance of the further applicable provisions of this Agreement. The
Company and the Other Stockholders shall enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected pursuant to Section 2.1(f). Notwithstanding any other provision of this
Section 2, if the representative advises the Sabre Parties in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the securities of the Company held by Other Stockholders shall
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be excluded from such registration to the extent so required by such limitation.
(c) Registration Statement Form.
Registrations under this Section 2.1 shall be on such appropriate registration
form of the Commission as, subject to clause (a)(i) above, shall be selected by
the Company and as shall be reasonably acceptable to the Sabre Parties.
(d) Expenses. The Sabre Parties shall pay
all Registration Expenses in connection with any registration requested pursuant
to this Section 2.1.
(e) Effective Registration Statement. A
registration requested pursuant to this Section 2.1 shall not be deemed to have
been effected (i) unless a registration statement with respect thereto has
become effective and has been kept continuously effective for a period of at
least 180 days (or such shorter period which shall terminate when all the
Registrable Securities covered by such registration statement have been sold
pursuant thereto), (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to any Sabre Party and has not thereafter become effective, or
(iii) if the conditions to closing specified in the underwriting agreement, if
any, entered into in connection with such registration are not satisfied or
waived.
(f) Selection of Underwriters. The
underwriters of each underwritten offering of the Registrable Securities so to
be registered shall be selected by the Sabre Parties and shall be subject to the
approval of the Company, not to be unreasonably withheld or delayed.
(g) Right to Withdraw. If the managing
underwriter of any underwritten offering shall advise the Sabre Parties that the
Registrable Securities covered by the registration statement cannot be sold in
such offering within a price range acceptable to the Sabre Parties, then the
Sabre Parties shall have the right to notify the Company in writing that they
have determined that the registration statement be abandoned or withdrawn, in
which event the Company shall abandon or withdraw such registration statement.
(h) Limitations on Registration on Request.
The Sabre Parties shall be entitled to require the Company to effect, and the
Company shall be required to effect, an unlimited number of registrations
pursuant to this Section 2.1, provided, however, that the Company shall not be
required to effect more than one registration pursuant to this Section 2.1 in
any consecutive twelve month period.
(i) Postponement. The Company shall be
entitled once in any six-month period to postpone for a reasonable period of
time (but not exceeding 90
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days) (the "Postponement Period") the filing of any registration statement
required to be prepared and filed by it pursuant to this Section 2.1 if the
Company determines, in its reasonable judgment, that such registration and
offering would materially interfere with any material financing, corporate
reorganization or other material transaction involving the Company or any
subsidiary, or would require premature disclosure thereof, and promptly gives
the Sabre Parties written notice of such determination, containing a general
statement of the reasons for such postponement and an approximation of the
anticipated delay. If the Company shall so postpone the filing of a registration
statement, (i) the Company shall use its reasonable best efforts to limit the
delay to as short a period as is practicable and (ii) the Sabre Parties shall
have the right to withdraw the request for registration by giving written notice
to the Company at any time.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities.
If the Company at any time proposes to register any of its securities under the
Securities Act by registration on Form X-0, X-0 or S-3 or any successor or
similar form(s) (except registrations on any such Form or similar form(s) solely
for registration of securities in connection with an employee benefit plan or
dividend reinvestment plan or a merger or consolidation), whether or not for
sale for its own account, it will each such time give prompt written notice to
the Sabre Parties of its intention to do so and of each Sabre Party's rights
under this Section 2.2. Upon the written request of the Sabre Parties (which
request shall specify the maximum number of Registrable Securities intended to
be disposed of by each Sabre Party), made as promptly as practicable and in any
event within 30 days after the receipt of any such notice (15 days if the
Company states in such written notice or gives telephonic notice to the Sabre
Parties, with written confirmation to follow promptly thereafter, stating that
(i) such registration will be on Form S-3 and (ii) such shorter period of time
is required because of a planned filing date), the Company shall use its
reasonable best efforts to include in such registration under the Securities Act
all Registrable Securities which the Company has been so requested to register
by the Sabre Parties. Notwithstanding anything to the contrary contained in this
Agreement, the Company may in its discretion withdraw any registration commenced
pursuant to this Section 2.2 without liability to the holders of Registrable
Securities. No registration effected under this Section 2.2 shall relieve the
Company of its obligation to effect any registration upon request under Section
2.1. The Company will pay all Registration Expenses in connection with any
registration of Registrable Securities requested pursuant to this Section 2.2.
(b) Right to Withdraw. Each Sabre Party
shall have the right to withdraw its request for inclusion of its Registrable
Securities in any registration statement pursuant to this Section 2.2 at any
time prior to the execution of an underwriting agreement with respect thereto by
giving written notice to the Company of
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its request to withdraw.
(c) Priority in Incidental Registrations. If
the managing underwriter of any underwritten offering shall inform the Company
by letter of its belief that the number of Registrable Securities requested to
be included in such registration, when added to the number of other securities
to be offered in such registration, would materially adversely affect such
offering, then the Company shall include in such registration, to the extent of
the number and type which the Company is so advised can be sold in (or during
the time of) such offering without so materially adversely affecting such
offering (the "Section 2.2 Sale Amount"), (i) all of the securities proposed by
the Company to be sold for its own account or by an Other Stockholder exercising
"demand" registration rights; and (ii) thereafter, to the extent the Section 2.2
Sale Amount is not exceeded, the Registrable Securities requested by the Sabre
Parties to be included in such registration pursuant to Section 2.2(a) and any
other securities of the Company requested to be included in such registration by
any Other Stockholder having the right to include securities on a pro rata
basis, with the amount of securities of the Sabre Parties and each such Other
Stockholder to be included based on the pro rata amount of shares of Common
Stock held, or obtainable by exercise, exchange or conversion of other
securities of the Company or of Xxxxxxxxxxx.xxx LP, by the Sabre Parties or such
Other Stockholder.
(d) Plan of Distribution. Any participation
by holders of Registrable Securities in a registration by the Company shall be
in accordance with the Company's plan of distribution.
2.3 Registration Procedures. If and whenever the
Company is required to use its reasonable best efforts to effect the
registration of any Registrable Securities under the Securities Act as provided
in Sections 2.1 and 2.2 hereof, the Company shall as expeditiously as possible:
(a) prepare and file with the Commission as soon as
practicable the requisite registration statement to effect
such registration (and shall include all financial statements
required by the Commission to be filed therewith) and
thereafter use its reasonable best efforts to cause such
registration statement to become effective; provided, however,
that before filing such registration statement (including all
exhibits) or any amendment or supplement thereto or comparable
statements under securities or blue sky laws of any
jurisdiction, the Company shall as promptly as practicable
furnish such documents to the Sabre Parties and each
underwriter, if any, participating in the offering of the
Registrable Securities and their respective counsel, which
documents will be subject to the reasonable review and
comments of the Sabre Parties, each underwriter and their
respective counsel; and provided, further, however, that the
Company may discontinue any registration of its securities
pursuant to Section 2.2 or
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which are not Registrable Securities at any time prior to the
effective date of the registration statement relating thereto;
(b) notify the Sabre Parties of the Commission's
requests for amending or supplementing the registration
statement and the prospectus, and prepare and file with the
Commission such amendments and supplements to such
registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement
for such period as shall be required for the disposition of
all of such Registrable Securities in accordance with the
intended method of distribution thereof; provided, that except
with respect to any such registration statement filed pursuant
to Rule 415 under the Securities Act, such period need not
exceed 180 days;
(c) furnish, without charge, to the Sabre Parties and
each underwriter such number of conformed copies of such
registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other
documents, as any Sabre Party and such underwriters may
reasonably request;
(d) use its reasonable best efforts (i) to register
or qualify all Registrable Securities and other securities
covered by such registration statement under such securities
or blue sky laws of such States of the United States of
America where an exemption is not available and as any Sabre
Party or any managing underwriter shall reasonably request,
(ii) to keep such registration or qualification in effect for
so long as such registration statement remains in effect, and
(iii) to take any other action which may be reasonably
necessary or advisable to enable the Sabre Parties to
consummate the disposition in such jurisdictions of the
securities to be sold by the Sabre Parties, except that the
Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of
this subsection (d) be obligated to be so qualified or to
consent to general service of process in any such
jurisdiction;
(e) furnish to the Sabre Parties and each
underwriter, if any, participating in the offering of the
securities covered by such registration
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statement, a signed counterpart of (i) an opinion of counsel
for the Company, and (ii) a "comfort" letter signed by the
independent public accountants who have certified the
Company's or any other entity's financial statements included
or incorporated by reference in such registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein)
and, in the case of the accountants' comfort letter, with
respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the
underwriters in underwritten public offerings of securities
(and dated the dates such opinions and comfort letters are
customarily dated) and, in the case of the legal opinion, such
other legal matters, and, in the case of the accountants'
comfort letter, such other financial matters, as the
underwriters, may reasonably request;
(f) promptly notify the Sabre Parties and each
managing underwriter, if any, participating in the offering of
the securities covered by such registration statement (i) when
such registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to such registration statement has
been filed, and, with respect to such registration statement
or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission for
amendments or supplements to such registration statement or
the prospectus related thereto or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or
the initiation of any proceedings for that purpose; (iv) of
the receipt by the Company of any notification with respect to
the suspension of the qualification of any of the Registrable
Securities for sale under the securities or blue sky laws of
any jurisdiction or the initiation of any proceeding for such
purpose; (v) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result
of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances
under which they were made, and in the case of this clause
(v), at the request of any Sabre Party promptly prepare and
furnish to the Sabre Parties and each managing underwriter, if
any, participating in the offering of the Registrable
Securities, a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not
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include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; and
(vi) at any time when the representations and warranties of
the Company contemplated by Section 2.4(a) or (b) hereof cease
to be true and correct;
(g) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve
months beginning with the first full calendar month after the
effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, and
promptly furnish to the Sabre Parties a copy of any amendment
or supplement to such registration statement or prospectus;
(h) provide and cause to be maintained a transfer
agent and registrar (which, in each case, may be the Company)
for all Registrable Securities covered by such registration
statement from and after a date not later than the effective
date of such registration;
(i) (i) use its reasonable best efforts to cause all
Registrable Securities covered by such registration statement
to be listed on the principal securities exchange on which
similar securities issued by the Company are then listed (if
any), if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (ii) if no
similar securities are then so listed, use its reasonable best
efforts to (x) cause all such Registrable Securities to be
listed on a national securities exchange or (y) secure
designation of all such Registrable Securities as a NASDAQ
"national market system security" within the meaning of Rule
11Aa2-1 of the Commission or (z) failing that, to secure
NASDAQ authorization for such shares and, without limiting the
generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such shares
with the National Association of Securities Dealers, Inc.;
(j) deliver promptly to counsel to the Sabre Parties
and each underwriter, if any, participating in the offering of
the Registrable Securities, copies of all correspondence
between the Commission and the Company, its counsel or
auditors;
(k) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the
registration statement;
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(l) provide a CUSIP number for all Registrable
Securities, no later than the effective date of the
registration statement; and
(m) make available its employees and personnel and
otherwise provide reasonable assistance to the underwriters
(taking into account the needs of the Company's business) in
their marketing of Registrable Securities.
The Company may require each Sabre Party to furnish the Company such information
regarding such Sabre Party and the distribution of the Registrable Securities as
the Company may from time to time reasonably request in writing.
Each Sabre Party agrees that upon receipt of any notice from
the Company of the happening of any event of the kind described in paragraph (f)
(iii), (iv) or (v) of this Section 2.3, such Sabre Party will, to the extent
appropriate, discontinue its disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until, in the
case of paragraph (f)(v) of this Section 2.3, its receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (f)(v) of this
Section 2.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in its
possession, of the prospectus relating to such Registrable Securities current at
the time of receipt of such notice. If the disposition by any Sabre Party of its
securities is discontinued pursuant to the foregoing sentence, the Company shall
extend the period of effectiveness of the registration statement required
pursuant to Section 2.1(e) by the number of days during the period from and
including the date of the giving of notice to and including the date when such
Sabre Party shall have received copies of the supplemented or amended prospectus
contemplated by paragraph (f)(v) of this Section 2.3.
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2.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If
requested by the underwriters for any underwritten offering by any Sabre Party
pursuant to a registration requested under Section 2.1, the Company shall enter
into a customary underwriting agreement (in the form of underwriting agreement
used at such time by the managing underwriter(s)) with a managing underwriter or
underwriters selected pursuant to Section 2.1(f) which shall contain such terms
as are generally prevailing in agreements of the managing underwriter(s),
including, without limitation, their customary provisions relating to
indemnification and contribution (the "Customary Terms"). Each Sabre Party
participating in such offering shall be party to such underwriting agreement and
may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such Sabre Party and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Sabre Party. No Sabre Party shall be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding such Sabre Party, its ownership of and title to the Registrable
Securities, and its intended method of distribution and other representations
that constitute Customary Terms, and any liability of a Sabre Party to any
underwriter or other Person under such underwriting agreement shall be limited
to liability arising from breach of its representations and warranties and shall
be limited to an amount equal to the proceeds (net of expenses and underwriting
discounts and commissions) that it derives from such registration.
(b) Incidental Underwritten Offerings. In
the case of a registration pursuant to Section 2.2 hereof, if the Company shall
have determined to enter into any underwriting agreements in connection
therewith, all of the Registrable Securities to be included in such registration
shall be subject to such underwriting agreements.
2.5 Preparation; Reasonable Investigation. In
connection with the preparation and filing of each registration statement under
the Securities Act pursuant to this Agreement, the Company will give each Sabre
Party, its underwriters, if any, and its respective counsel, accountants and
other representatives and agents the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or supplement thereto, and
give each of them such reasonable access to its books and records and such
reasonable opportunities to discuss the business of the Company with its
officers and employees and the independent public accountants who have certified
its financial statements, and supply all other information reasonably requested
by each of them, as
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shall be necessary or appropriate, in the opinion of such Sabre Party and such
underwriters' respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
2.6 Indemnification.
(a) Indemnification by the Company. The
Company agrees that in the event of any registration of any securities of the
Company under the Securities Act, the Company shall indemnify and hold harmless
each Sabre Party, its respective directors, officers, members, partners, agents
and affiliates and each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls
any Sabre Party or any such underwriter within the meaning of the Securities
Act, against any losses, claims, damages, or liabilities, joint or several, to
which such Sabre Party or any such director, officer, member, partner, agent or
affiliate or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities, joint or several (or actions or proceedings, whether commenced or
threatened, in respect thereof), arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto or (ii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company shall
reimburse each Sabre Party and each such director, officer, member, partner,
agent or affiliate, underwriter and controlling Person for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided that
the Company shall not be liable in any such case to any Sabre Party or any such
director, officer, member, partner, agent, affiliate, or controlling person to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such Sabre
Party, specifically stating that it is for use in the preparation thereof;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any person from whom
the person asserting any such losses, claims, damages or liabilities (the
"Claimant") purchased securities, or any person controlling such person, if a
copy of the prospectus (as then amended or supplemented if the Company shall
have furnished any amendment or supplement thereto) was not sent or given by or
on behalf of such person to such Claimant, if required by law to have been so
delivered, at or prior to the written confirmation of the sale of the
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securities sold to such Claimant, and if the prospectus (as so amended and
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities. Such indemnity shall remain in full force regardless of
any investigation made by or on behalf of any Sabre Party or any such director,
officer, member, partner, agent, affiliate, underwriter or controlling Person
and shall survive the transfer of such securities by the Sabre Parties.
(b) Indemnification by the Sabre Parties. As
a condition to including any Registrable Securities in any registration
statement, each Sabre Party shall indemnify and hold harmless (in the same
manner and to the same extent as set forth in paragraph (a) of this Section 2.6)
the Company, and each director of the Company, each officer of the Company and
each other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, but only to the extent such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of such Sabre Party specifically stating that it is for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement; provided, however, that the
liability of such indemnifying party under this Section 2.6(b) shall be limited
to the amount of proceeds (net of expenses and underwriting discounts and
commissions) received by such indemnifying party in the offering giving rise to
such liability. Such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by such Sabre Party.
(c) Notices of Claims, etc. Promptly after
receipt by an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding subsections of this
Section 2.6, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party, give written notice to the latter of the
commencement of such action or proceeding; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of this
Section 2.6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice, and shall not relieve the
indemnifying party from any liability which it may have to the indemnified party
otherwise than under this Section 2.6. In case any such action or proceeding is
brought against an indemnified party, the indemnifying party shall be entitled
to participate therein and, unless in the opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel
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14
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants in any such action or proceeding include both the indemnified
party and the indemnifying party and if in the opinion of outside counsel to the
indemnified party there may be legal defenses available to such indemnified
party and/or other indemnified parties which are in conflict with or in addition
to those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to defend such action or
proceeding on behalf of such indemnified party or parties, provided, however,
that the indemnifying party shall be obligated to pay for only one counsel and
one local counsel for all indemnified parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for any legal
expenses subsequently incurred by the latter in connection with the defense
thereof (unless the first proviso in the preceding sentence shall be
applicable). No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification
provided for in this Section 2.6 shall for any reason be held by a court to be
unavailable to an indemnified party under subsection (a) or (b) hereof in
respect of any loss, claim, damage or liability, or any action in respect
thereof, then, in lieu of the amount paid or payable under subsection (a) or (b)
hereof, the indemnified party and the indemnifying party under subsection (a) or
(b) hereof shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating the same), (i) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, which resulted in such loss, claim, damage or
liability, or action in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as shall be appropriate to reflect not only the relative
fault but also the relative benefits received by the indemnifying party and the
indemnified party from the offering of the securities covered by such
registration statement as well as any other relevant equitable considerations.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 2.6(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the preceding sentence of this
Section 2.6(d). No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of
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15
such fraudulent misrepresentation. In addition, no Person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any action or
claim effected without such Person's consent, which consent shall not be
unreasonably withheld. Notwithstanding anything in this subsection (d) to the
contrary, no indemnifying party (other than the Company) shall be required to
contribute any amount in excess of the proceeds (net of expenses and
underwriting discounts and commissions) received by such party from the sale of
the Registrable Securities in the offering to which the losses, claims, damages
or liabilities of the indemnified parties relate.
(e) Other Indemnification. Indemnification
and contribution similar to that specified in the preceding subsections of this
Section 2.6 (with appropriate modifications) shall be given by the Company and
each Sabre Party with respect to any required registration or other
qualification of securities under any federal, state or blue sky law or
regulation of any governmental authority other than the Securities Act. The
indemnification agreements contained in this Section 2.6 shall be in addition to
any other rights to indemnification or contribution which any indemnified party
may have pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the transfer of any of the Registrable
Securities by any Sabre Party.
(f) Indemnification Payments. The
indemnification and contribution required by this Section 2.6 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or liability
is incurred.
2.7 Unlegended Certificates. In connection with the
offering of any Registrable Securities registered pursuant to this Section 2,
the Company shall promptly after the sale of such Registrable Securities (i)
facilitate the timely preparation and delivery to the Sabre Parties and the
underwriters, if any, participating in such offering, of unlegended certificates
representing ownership of such Registrable Securities being sold in such
denominations and registered in such names as requested by the Sabre Parties or
such underwriters and (ii) instruct any transfer agent and registrar of such
Registrable Securities to release any stop transfer orders with respect to any
such Registrable Securities.
2.8 Limitation on Sale of Securities. The Company
hereby agrees that if it shall previously have received a request for
registration pursuant to Section 2.1 hereof, and if such previous registration
shall not have been withdrawn or abandoned, (i) the Company shall not effect any
public or private offer, sale or distribution of its securities or effect any
registration of any of its equity securities under the Securities Act (other
than a registration on Form S-8 or any successor or similar form which is then
in effect), for sale for its own account, until a period of 120 days (or such
shorter period as the Company shall be advised by the managing underwriter)
shall have elapsed from the
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16
effective date of such previous registration, and the Company shall so provide
in any registration rights agreements hereafter entered into with respect to any
of its securities; and (ii) the Company shall use its reasonable best efforts to
cause each holder of its equity securities purchased from the Company other than
as part of a public offering at any time after the date of this Agreement to
agree not to effect any public sale or distribution of any such securities
during such period, including a sale pursuant to Rule 144 under the Securities
Act.
2.9 No Required Sale. Nothing in this Agreement shall
e deemed to create an independent obligation on the part of any Sabre Party to
sell any Registrable Securities pursuant to any effective registration
statement.
3. Rule 144. The Company shall take all actions reasonably
necessary to enable holders of Registrable Securities to sell such securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144, or (ii) any similar rule or regulation
hereafter adopted by the Commission including, without limiting the generality
of the foregoing, filing on a timely basis all reports required to be filed by
the Exchange Act. Upon the request of any Sabre Party, the Company will deliver
to such holder a written statement as to whether it has complied with such
requirements.
4. Amendments and Waivers. This Agreement may be
amended, modified or supplemented only by written agreement of the party against
whom enforcement of such amendment, modification or supplement is sought.
5. Adjustments. In the event of any change in the
capitalization of the Company as a result of any stock split, stock dividend,
reverse split, combination, recapitalization, merger, consolidation, or
otherwise, the provisions of this Agreement shall be appropriately adjusted.
6. Notice. All notices and other communications hereunder
shall be in writing and, unless otherwise provided herein, shall be deemed to
have been given when received by the party to whom such notice is to be given at
its address set forth below, or such other address for the party as shall be
specified by notice given pursuant hereto:
(a) If to any Sabre Party, to:
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17
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
(b) If to the Company, to it at:
Attention: General Counsel
7. Assignment; Third Party Beneficiaries; Majority Controls.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned by the Company, without the prior
written consent of the Sabre Parties. Any Sabre Party may, at its election, at
any time or from time to time, assign its rights under this Agreement, in whole
or in part, to any purchaser or other transferee of Registrable Securities held
by it. Any decision hereunder made by the holders of the majority of the
Registrable Securities shall be binding on all other holders of Registrable
Securities.
8. Remedies. The parties hereto agree that money damages or
other remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that, in addition
to all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being required.
In any action or proceeding brought to enforce any provision of this Agreement
(including the indemnification provisions thereof), the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
9. No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the Sabre Parties in
this Agreement or otherwise conflicts with the provisions hereof.
10. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not control or otherwise affect the meaning hereof.
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11. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights and obligations of the parties
hereto shall be governed by, the laws of the State of Delaware, without giving
effect to the conflicts of law principles thereof. Each of the parties hereto
hereby irrevocably and unconditionally consents to submit to the jurisdiction of
the courts of the State of Delaware and the United States of America located in
Delaware for any action or proceeding arising out of or relating to this
Agreement and the transactions contemplated hereby, and further agrees that
service of any process, summons, notice or document by U.S. registered mail to
its respective address set forth in Section 6 hereof shall be effective service
of process for any action or proceeding brought against it in any such court.
Each of the parties hereto hereby irrevocably and unconditionally waives any
objection to the laying of venue of any action or proceeding arising out of this
Agreement or the transactions contemplated hereby in the courts of the State of
Delaware or the United States of America located in Delaware, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
13. Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any restriction or provision of
this Agreement is held unreasonable, unlawful or unenforceable in any respect,
such restriction or provision shall be interpreted, revised or applied in a
manner that renders it lawful and enforceable to the fullest extent possible
under law.
14. Further Assurances. Each party hereto shall do and perform
or cause to be done and performed all further acts and things and shall execute
and deliver all other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
15. Entire Agreement; Effectiveness. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, oral and written, between the parties hereto with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their respective officers thereunto duly
authorized.
XXXXXXXXXXX.XXX INC.
By:
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Name:
Title:
TRAVELOCITY HOLDINGS, INC.
By:
----------------------------------
Name:
Title:
TSGL HOLDING, INC.
By:
----------------------------------
Name:
Title:
SABRE INC.
By:
----------------------------------
Name:
Title:
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