CONFIDENTIAL
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS AGREEMENT WITH
"[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]."
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement") is made as of March 7,
2000 by and among Sabre Holdings Corporation, a Delaware corporation ("Sabre
Holdings"), Sabre Inc., a Delaware Corporation ("Sabre"), Xxxxxxxxxxx.xxx
Inc., a Delaware corporation ("Xxxxxxxxxxx.xxx") and Xxxxxxxxxxx.xxx LP, a
Delaware limited partnership ("Xxxxxxxxxxx.xxx LP", together with
Xxxxxxxxxxx.xxx, the "Company").
WHEREAS, Xxxxxxxxxxx.xxx is a party to the Agreement and Plan of Merger
dated October 3, 1999 (the "Merger Agreement") by and among Xxxxxxxxxxx.xxx,
Sabre, Travelocity Holdings, Inc. and Preview Travel, Inc. ("Preview");
WHEREAS, Preview is merging with and into Xxxxxxxxxxx.xxx as of the date
hereof pursuant to the Merger Agreement (the "Merger");
WHEREAS, as a condition to the Merger, Sabre Holdings and Sabre agreed
to enter into a noncompetition agreement on the terms described herein;
WHEREAS, the Company will conduct the Travelocity Business (as defined
below) after the Merger that Sabre formerly conducted through its Travelocity
division; and
WHEREAS, Sabre believes that in order to promote and protect the
Travelocity Business (as defined below), it is in the best interests of Sabre
Holdings, as the common parent of Sabre and the Company, to restrict, in
certain respects, the ability of Sabre and other Sabre subsidiaries as
provided herein to compete with the Travelocity Business.
NOW THEREFORE, in exchange for good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms have
the following meanings:
"COMPETE" means to engage in the Travelocity Business anywhere in the
world.
"CONTROL" means: (i) owning or having the right to acquire, directly or
indirectly, at least 20% of the equity interests of any Person; and (ii)
having effective control, by contract or otherwise, of the management,
governance and activities of such Person.
"GOVERNMENTAL AUTHORITY" means any (a) nation, state, county, city,
town, village, district, or other jurisdiction of any nature; (b) federal,
state, local, municipal, foreign, or other government; (c) governmental or
quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other
tribunal); (d) multi-national organization or body; or (e) body exercising,
or entitled to exercise, any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power of any nature.
"PERSON" means any individual, corporation, limited liability company,
partnership, firm, joint venture, association, joint-stock company, trust,
estate, unincorporated organization, Governmental Authority or other entity.
"TRAVELOCITY BUSINESS" means the offering of real time travel-related
reservations, services and content directly to consumers through a
travel-related Internet site generally available to all Internet users.
2. NONCOMPETITION. Except as otherwise provided in Section 3, Sabre
Holdings and Sabre each agrees for a period of two (2) years from the date
hereof (the "Term") not to (a) Compete with the Travelocity Business or (b)
Control a Person who Competes with the Travelocity Business.
3. EXCEPTIONS. Notwithstanding Section 2 hereof, Sabre Holdings,
Sabre or a Person Controlled by Sabre Holdings or Sabre may:
(a) offer travel related reservations, services and content
through and to travel agencies, corporations and travel suppliers, through
which such entities enable consumers to book reservations via the Internet,
such as through Sabre's "Web Reservations" business and "Business Travel
Solutions" products;
(b) offer Sabre's "Virtually There Online" product directly to
consumers over the Internet, as long as such product does not enable air,
car, hotel, tour or cruise bookings (other than through Xxxxxxxxxxx.xxx or
Xxxxxxxxxxx.xxx LP); and
(c) acquire Control of any Person which conducts a business that
Competes with the Travelocity Business as long as Sabre Holdings or a Person
Controlled by Sabre Holdings uses reasonable efforts to divest itself of the
portion of such Person's business that Competes with the Travelocity Business
within one (1) year of the time that Control of such Person was acquired,
regardless of whether such one-year period extends beyond the Term.
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4. REPRESENTATIONS. Sabre Holdings and Sabre each agree and
acknowledge that:
(a) the enforcement of the noncompetition provisions of this
Agreement would not be unduly burdensome;
(b) the noncompetition covenants of this Agreement were negotiated
as part of, in consideration of, and were considered an essential part of,
the Merger Agreement and the other agreements relating to the separation of
the Travelocity division's business from Sabre, and that the Company relied
on those covenants in entering into those agreements; and
(c) the restrictions regarding the scope of activities, duration,
and geographic area that are part of this Agreement are reasonable and do not
impose a greater restraint on it than is necessary to protect the goodwill
and other business interests of the Company.
5. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement will be governed by, and
construed and interpreted under, the laws of Texas without regard to any
conflicts of law rules.
(b) ALTERNATIVE DISPUTE RESOLUTION. Any dispute will be resolved
in accordance with the alternative dispute resolution procedures set forth in
SCHEDULE A to this Agreement ("ADR Procedures"). Notwithstanding the
foregoing, and subject to Section 5(c) below, this section shall in no way
affect the right of any party to seek such interim relief, and only such
relief as may be required to maintain the status quo in aid of the
alternative dispute resolution procedures in any court of competent
jurisdiction.
(c) REMEDIES. If Sabre Holdings, Sabre or any Person Controlled
by Sabre Holdings or Sabre breaches or threatens to commit a breach of any of
the provisions of Section 2 hereof, the Company shall have the right and
remedy to specific performance of this Agreement or an injunction issued by
any court of competent jurisdiction restraining any breach or violation, or
future or continued breach or violation, of this Agreement, it being
acknowledged and agreed that any breach or threatened breach of this
Agreement will cause irreparable injury to the Company and money damages will
not provide an adequate remedy to the Company. The rights set forth in this
Section 5(c) shall be cumulative of, and not in lieu of, any other rights or
remedies to which the Company may also be entitled including, but not limited
to, the recovery of damages from Sabre Holdings. So long as Sabre owns fifty
percent (50%) or more of the Xxxxxxxxxxx.xxx LP's equity interests, specific
enforcement shall be sought first in accordance with the ADR Procedures.
(d) CHOICE OF FORUM. For any actions to enforce arbitral awards
issued in accordance with SCHEDULE A to this Agreement or to enforce the
parties' compliance with the ADR Procedures in SCHEDULE A to this Agreement,
each party consents to the exclusive jurisdiction of the competent courts in
Fort Worth, Texas, U.S.A. Each party irrevocably waives any objection it may
now or hereafter have as to the venue of any such action or proceeding
brought in any such court or that such court is an inconvenient forum. Each
party hereby waives
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personal service of process and consents that service of process upon it may
be made by certified or registered mail, return receipt requested, at its
address specified or determined in accordance with Section 5(e). Nothing
herein will affect the right to serve process in any other manner permitted
by law.
(e) NOTICES. Any notice or communication required or permitted to
be given or made to a party under this Agreement must be typed in English and
personally delivered to the office of the person identified below or
delivered by registered mail with confirmed receipt (postage prepaid) or air
courier or by telex, facsimile, cable, or telegram with confirmation copy
dispatched simultaneously by registered mail (or airmail if overseas) with
confirmed receipt (postage prepaid) to the following addresses:
If to Sabre Holdings:
Sabre Holdings Corporation
MD 4204
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 00000
URGENT ATTN: General Counsel
Telecopy: 000-000-0000
If to Sabre:
Sabre Inc.
MD 4204
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 00000
URGENT ATTN: General Counsel
TELECOPY: 000-000-0000
IF TO COMPANY:
XXXXXXXXXXX.XXX LP
0000 XXXXXXXXXX XXXXXXXXX
POST OFFICE BOX 1400
FORT WORTH, TEXAS 76155
ATTENTION: General Counsel
Telecopy: 000-000-0000
Notices delivered in the foregoing manner will be deemed effective on (i) the
day received if delivered personally or sent by courier; (ii) the business
day at the location of the recipient following the day received if sent by
facsimile, cable, telex or diagram, or (iii) the fourteenth (14th) day
following the date of dispatch by registered mail.
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(f) TITLES AND CAPTIONS. All article and section titles or
captions in this Agreement are for convenience only. They will not be deemed
part of this Agreement and in no way define, limit, extend, or describe the
scope or intent of any of their provisions.
(g) BINDING EFFECT; ASSIGNMENT. This Agreement will be binding
upon and inure to the benefit of the parties and their successors and
permitted assigns. Neither party may assign this Agreement without the prior
written consent of the other.
(h) INTEGRATION. This Agreement and the attachments hereto
constitute the entire agreement of the parties pertaining to their subject
matter and supersede all prior agreements and understandings pertaining to
that subject matter, and this Agreement may not be amended, supplemented, or
rescinded, except in writing and signed by the authorized representatives of
each of the parties.
(i) WAIVER. A waiver of a breach or other non-performance of any
covenant, duty, agreement, or condition of this Agreement will not be
asserted against a party unless such waiver is in writing and signed by such
party. Failure by any party to insist upon the strict performance of or to
exercise any right or remedy consequent upon the breach of any covenant,
duty, agreement, or condition of this Agreement will not constitute a waiver
of that or any other failure to perform or breach of that or any other
covenant, duty, agreement, or condition. No waiver of a breach of any
provision of this Agreement by either party will constitute a waiver of any
subsequent breach of the same or any other provision thereof;
(j) MULTIPLE ORIGINALS. This Agreement may be executed in
counterparts or multiple originals, all of which together will constitute one
agreement binding on each party.
(k) INVALIDITY OF PROVISIONS/BLUE PENCILING. If any provision of
this Agreement is or becomes wholly or partly invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions will continue in force unaffected, and the parties will meet as
soon as possible and negotiate in good faith upon a replacement provision
that is legally valid and that as nearly as possible achieves the objectives
of this Agreement and produces an equivalent economic effect. A replacement
provision will apply as of the date that the replaced provision had become
invalid, illegal, or unenforceable. If the parties cannot reach agreement
after good faith negotiations, a party may invoke the ADR Procedures, and the
arbitrators will have the authority to determine a replacement provision that
is legally valid and that as nearly as possible achieves the objectives of
this Agreement and produces an equivalent economic effect; PROVIDED, HOWEVER,
that such determination may not materially increase the payment or
performance obligations of either party. If any court or arbitration panel
determines that any limitation regarding the scope of any activity restricted
herein, or the duration and geographic area of the restrictions herein is
unenforceable, then this Agreement shall not be invalidated, but shall be
amended to the extent required to render it valid and enforceable.
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IN WITNESS WHEREOF, this Agreement is entered into as of the date and
year first above written.
SABRE HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title Executive V.P., CFO and Treasurer
SABRE INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title Sr. V.P. and CFO
XXXXXXXXXXX.XXX INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title President and CEO
XXXXXXXXXXX.XXX LP
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title Sr. V.P., General Counsel and
Corporate Secretary of Travelocity
Holdings, Inc., its General
Partner
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SCHEDULE A: DISPUTE RESOLUTION PROCEDURES
1. CERTAIN DEFINITIONS
This Section 1 sets forth certain definitions used in this Dispute Resolution
Process. Other capitalized terms used but not defined here in have the meanings
ascribed to them in the Agreement.
ARBITRATION RULES
The rules of the American Arbitration Association ("AAA") in effect on the date
of the commencement of the arbitration.
QUALIFICATIONS
Having extensive knowledge or experience, or both, regarding information
technology services, and fluent in English.
2. DISPUTE RESOLUTION PROCEDURE.
(a) GENERAL PROCEDURE.
The Parties shall resolve all Disputes in accordance with this
procedure:
(i) Disputes shall first be submitted to each Party's principal
manager ("Account Manager") of the contract relationships
between the Parties, as indicated in Section 3 of this Schedule.
(ii) If a Dispute is not resolved by the Account Managers, then
either Party may submit the Dispute to mediation as outlined in
Section 4 of this Schedule.
(iii) If a Dispute is not resolved by mediation, then either Party may
submit the Dispute to binding arbitration in accordance with
Section 5 of this Schedule.
A referral under either Section 2(a)(ii) and/or 2(a)(iii) of this
Schedule shall be made by written notice to the Account Managers.
That notice shall be in a form mutually agreed to by the Account
Managers or an electronic mail message and addressed to each Account
Manager at his or her office address or electronic mail address; each
notice shall be given and effective upon actual receipt.
3. DISPUTE RESOLUTION.
The term "Dispute" means any dispute, claim or controversy of any kind arising
under or in connection with this Agreement. If a Party believes that a Dispute
has occurred, then it may notify the other Party of the existence of the
Dispute. Immediately after receipt of such notice, the Account Managers of the
Parties shall meet, and act in good faith, to attempt to resolve the Dispute.
If the Account Managers are not able to resolve the Dispute within [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED] of notice of such Dispute, then either Party
may submit the Dispute to mediation as outlined in Section 4 of this Schedule.
4. MEDIATION.
The mediation of an unresolved Dispute shall be conducted in this manner:
(a) Either Party may submit the Dispute to mediation by giving notice of
mediation to the other Party. The Parties shall attempt to agree
promptly after that notice is given upon and appoint a sole mediator
who has the Qualifications.
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(b) If the Parties are unable to agree upon a mediator within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the date the Dispute
is submitted to mediation, either Party may request the Dallas, Texas
office of the AAA to appoint a mediator who has the Qualifications.
The mediator so appointed shall be deemed to have the Qualifications
and to be accepted by the Parties.
(c) The mediation shall be conducted in Dallas, Texas at a place and a
time agreed by the Parties with the mediator, or if the Parties cannot
agree, as designated by the mediator. The mediation shall be held
within [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the
mediator is appointed.
(d) If either Party has substantial need for information from the other
Party in order to prepare for the mediation, the Parties shall attempt
to agree on procedures for the formal exchange of information; if the
Parties cannot agree, the mediator's determination shall be effective.
(e) Each Party shall be represented in the mediation by a natural person
with authority to settle the Dispute on behalf of that Party and, if
desired by that Party, by counsel for that Party. The Parties'
representatives in the mediation shall continue with the mediation as
long as the mediator requests.
(f) Unless otherwise agreed by the Parties, each Party shall pay one-half
of the mediator's fees and expenses and shall bear all of its own
expenses in connection with the mediation. Neither Party may employ
or use the mediator as a witness, consultant, expert, or counsel
regarding the Dispute or any related matters.
5. ARBITRATION.
The arbitration of an unresolved Dispute shall be conducted in this manner:
(a) Either Party may begin arbitration by filing a demand for arbitration
in accordance with the Arbitration Rules. The Parties shall attempt
to agree upon and appoint a panel of three (3) arbitrators promptly
after that demand is filed. Each of those arbitrators must have the
Qualifications unless otherwise agreed by both Parties.
(b) If the Parties are unable to agree upon any or all of the arbitrators
within [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the
demand for arbitration was filed (and do not agree to an extension of
that ten-day period), then each Party shall designate one arbitrator
with Qualifications and the AAA shall designate a third, if possible,
with Qualifications; nevertheless, such arbitrator so appointed shall
be deemed to have the Qualifications and to be accepted by the Parties
as part of the panel.
(c) The arbitration shall be conducted in Dallas, Texas at a place and a
time agreed by the Parties with the panel, or if the Parties cannot
agree, as designated by the panel. The panel may, however, call and
conduct hearings and meetings at such other places as the Parties may
agree or as the panel may, on the motion of one Party, determine to be
necessary to obtain significant testimony or evidence.
(d) The Parties shall attempt to agree upon the scope and nature of any
discovery for the arbitration. If the Parties do not agree, the panel
may authorize any and all forms of discovery, including depositions,
interrogatories, and document production, upon a showing of
particularized need that the requested discovery is likely to lead to
material evidence needed to resolve the Dispute and is not excessive
in scope, timing, or cost.
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(e) The arbitration shall be subject to the Federal Arbitration Act and
conducted in accordance with the Arbitration Rules to the extent they
do not conflict with this Section 5. The Parties and the panel may,
however, agree to vary the provisions of this Section 5 or the matters
otherwise governed by the Arbitration Rules.
(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or continuance of the
Agreement;
(ii) award remedies or relief either expressly prohibited by the
Agreement or under circumstances not permitted by the Agreement;
or
(iii) grant provisional or temporary injunctive relief before
rendering the final decision or award.
(g) Unless the Parties otherwise agree, all Disputes regarding or related
to the same topic or event that are subject to arbitration at one time
shall be consolidated in a single arbitration proceeding.
(h) A Party or other person involved in an arbitration under this Section
5 may join in that arbitration any person other than a Party if:
(i) the person to be joined agrees to resolve the particular dispute
or controversy in accordance with this Section 5 and the other
provisions of this Schedule applicable to arbitration; and
(ii) the panel determines, upon application of the person seeking
joinder, that the joinder of that other person will promote the
efficiency, expedition, and consistency of the result of the
arbitration and will not unfairly prejudice any other Party to
the arbitration.
(i) The arbitration hearing shall be held within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the appointment of the panel.
Upon request of either Party, the panel shall arrange for a
transcribed record of the arbitration hearing, to be made available to
both Parties.
(j) The panel's final decision or award shall be made within [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED] after the hearing. That final
decision or award shall be made by unanimous or majority vote or
consent of the arbitrators constituting the panel, shall be deemed
issued at the place of arbitration and shall be made in U.S. dollars.
The panel shall issue a reasoned written final decision or award based
on the Agreement and Texas law; the panel may not act according to
equity and conscience or as an amicable compounder or apply the law
merchant.
(k) The panel's final decision or award may include:
(i) recovery of general damages to the extent permitted by the
Agreement (but not consequential, exemplary or punitive
damages); or
(ii) injunctive relief in response to any actual or threatened breach
of the Agreement or any other actual or threatened action or
omission of a Party under or in connection with the Agreement.
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(l) The panel's final decision or award shall be final and binding upon
the Parties, and judgment upon that decision or award may be entered
in any court having jurisdiction over either or both of the Parties or
their respective assets. The Parties specifically waive any right
they may have to apply or appeal to any court for relief from the
preceding sentence or from any decision of the panel made, or any
question of law arising, before the final decision or award; and the
Parties shall not dispute nor question the validity of such award
before any regulator or other authority in any jurisdiction where
enforcement action is taken by the Party or Parties in whose favor the
award was rendered. If any decision by the panel is vacated for any
reason, the Parties shall submit that Dispute to a new arbitration in
accordance with this Section 5.
(m) Each Party shall pay one-half of the arbitrators' fees and expenses,
and shall bear all of its own expenses in connection with the
arbitration. The panel has the authority, however, to award recovery
of all costs and fees (including attorneys' fees, administrative fees
and the panel's fees and expenses) to the prevailing Party in the
arbitration.
6. RECOURSE TO COURTS.
Nothing in this Schedule limits the right of either Party to apply to a court or
other tribunal having jurisdiction to:
(a) enforce this Schedule, including the agreement to arbitrate in this
Schedule;
(b) seek provisional or temporary injunctive relief, in response to an
actual or impending breach of the Agreement or otherwise so as to
avoid irreparable damage or maintain the status quo, until a final
arbitration decision or award is rendered or the Dispute is otherwise
resolved; or
(c) challenge or vacate any final arbitration decision or award that does
not comport with Section 5 of this Schedule.
7. SUBMISSION TO JURISDICTION.
Each Party irrevocably submits to the jurisdiction of the federal courts of the
United States and the state courts of Texas located in Fort Worth. Each Party
waives any defense or challenge to that jurisdiction based on lack of personal
jurisdiction, improper venue, or inconvenience of forum.
8. CONFIDENTIALITY.
The proceedings of all negotiations, mediations, and arbitrations shall be
privately conducted. The Parties shall keep confidential all conduct,
negotiations, documents, decisions, and awards in connection with those
proceedings under this Schedule.
9. EXCLUSIVE REMEDY.
Other than those matters involving injunctive or other extraordinary relief
or any action necessary to enforce the award of the arbitrator, the Parties
agree that the provisions of this Schedule are a complete defense to any
suit, action or other proceeding instituted in any court or before any
administrative tribunal with respect to any Dispute.
10. OTHER.
(a) U.N. CONVENTION.
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The enforcement of any arbitral award will be in accordance with and
governed by the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards.
(b) LANGUAGE.
Negotiations, mediations and arbitrations will be conducted in the English
language.
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