Exhibit 10.3
SHARE PURCHASE AND
TRANSFER AGREEMENT
DATED OCTOBER 01, 2004
TRAVELOCITY HOLDINGS
GMBH
KOMMANDITGESELLSCHAFT
TRAVEL OVERLAND
FLUGREISEN GMBH & CO
Allen & Overy LLP
Frankfurt
THIS AGREEMENT is made in Hamburg on
October 01, 2004
BETWEEN
(1)
Travelocity Holdings GmbH (
TEU
or the
Seller
) having
its corporate seat in Munich, Germany, registered with the commercial register
of the local court of Munich under HRB 141917; and
(2)
Kommanditgesellschaft TRAVEL
OVERLAND Flugreisen GmbH & Co, Munich, (
TEU
Partnership
or the
Buyer
),
registered with the commercial register of the local court in Munich under HRA
70203,
TEU and TEU Partnership are hereinafter
also referred to as
Party
and
together as the
Parties
.
WHEREAS:
(A)
TEU Partnership is equally
owned by Otto Freizeit und Touristik GmbH, Hamburg (
OFT
),
and Travelocity GmbH, Munich (
TVL GmbH
).
(B)
TEU is a wholly owned
subsidiary of TEU Partnership.
(C)
TEU holds 100% in Travelocity
Sabre GmbH (
NewCo
), having its corporate seat
in Munich, Germany, registered with the commercial register of the local court
of Munich under HRB 152122, having a registered share capital (
Stammkapital
) of Euro 25,000, divided in one share in the
nominal amount of Euro 25,000.
(D)
On August 20, 2004, Otto (GmbH
& Co KG) (
OTTO
), Travelocity.com LP (
TVLY
), Otto Freizeit und Touristik GmbH, Hamburg (
OFT
) and TEU Partnership, amongst others, entered into the
master agreement (deed no. 1285/2004 of the notary Dr. irur Axel Pfeifer,
Hamburg, ) (the
Master Agreement
).
(E)
Under the Master Agreement,
the parties to such agreement agreed on a restructuring of the joint venture
activities of OFT, OTTO and TVLY conducted under the joint venture agreement
between OFT, TVLY and OTTO dated 7 September 2001 (Deed No. 1703/2001 of the
notary Dr. Axel Pfeifer, Hamburg).
(F)
Until the date of this
Agreement the joint venture activities were conducted through TEU Partnership
and its subsidiaries. In more detail, TEU Partnership held 100% of the shares
in TEU. TEU held 100% of the shares in the following companies:
•
Travelocity.co.uk Ltd., a company
incorporated in England with registration number 03007698, and with its
registered address at Western House, Cambridge Road, Stanstead, Essex, CM2 4
8BZ;
•
Resfeber Sverige AB, a company incorporated
in Sweden with company registration number 556551-8957 and with its registered
address at Kungsgatan 38, 3 tr, 11135 Stockholm;
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•
Usit Connections SAS, a company
incorporated in France and
registered with the Nice Commercial Court under
the number 702 054 974 (1984 B 00632)
with its registered address at
455 Promenade des
Anglais – Immeuble Arénice, 06299 Nice Cedex 03
having a registered share capital of EUR
390,000 divided in 26,000 shares of a par value of EUR 15 each
(
Usit Connections
)
; and
•
Travelocity France SAS, a company
incorporated in France with registration number 441 687 928 RCS Paris, and with
registered address at 77 rue La Boëtie, 75008 Paris having a registered share
capital of EUR 637,000 divided in 63,700 shares of a par value of EUR 10 each.
(G)
As part of the restructuring
process, TEU acquired 100% of the shares in NewCo. Subsequently, TEU
transferred all shares in Travelocity.co.uk Ltd, Resfeber Sverige AB, Usit
Connections SAS and Travelocity France SAS to NewCo.
(H)
In accordance with clause
4.4(c) of the Master Agreement, TEU wishes to sell and transfer, and TEU
Partnership wishes to acquire, TEU Partnership’s 100% shareholding in NewCo.
NOW IT IS HEREBY AGREED
as follows:
1.
INTERPRETATION
1.1
The terms defined in the following
definitions shall have the meaning ascribed to them wherever used in this
Agreement unless otherwise defined in the respective Clause.
Affiliate
means any corporation,
partnership or other legal entity in which one of the Parties owns, directly or
indirectly, an interest that provides it with more than 50 % of the ownership
voting rights.
Agreement
means this Share Purchase and
Transfer Agreement.
Clause
means a clause of this
Agreement.
Euribor
means the percentage rate per
annum determined by the Banking Federation of the European Union for a
three-month period, as defined under http://www.euribor.org.
Exhibit
means any annex, appendix,
exhibit or schedule to this Agreement.
Share
means
the share in the nominal amount of Euro 25,000 in NewCo held by TEU.
Signing
Date
means
the date of this Agreement.
1.2
Unless this Agreement provides for separate
definitions for the singular and the plural (e.g. Company/Companies), the
singular shall include the plural and
vice versa
and
words denoting a person shall include, unless otherwise stated, that person’s
legal successors or assignees.
1.3 The headings in this Agreement are
for convenience only and do not affect its interpretation.
1.4
Any Exhibit to this Agreement shall take
effect as if set out in this Agreement and references to this Agreement shall
include its Exhibits.
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2.
SALE AND PURCHASE
2.1
Sale and Purchase and
Conditional Transfer of the Share
The Seller hereby agrees to sell and
transfer (
verkauft und übereignet
) the Share to
the Buyer and the Buyer hereby purchases and agrees to acquire (
kauft und nimmt Übereignung an
) the Share. The Share is sold
and transferred with all rights and entitlements relating thereto.
2.2
Purchase Price
(a)
The purchase price for the
Share amounts to Euro 53,140,000 (in words: fifty-three million one hundred
forty thousand Euros) (the
Purchase Price
).
(b)
The Purchase Price equals the
fair market value (
Teilwert
) of
the Share.
The Parties
understand that the Purchase Price is exempted from § 4 no. 8(f) of the German
VAT Act (
Umsatzsteuergesetz
).
(c)
The Purchase Price is payable
3 business days after TEU Partnership sends a corresponding written request to
TEU. Until payment the Purchase Price shall bear interest at a rate of 2
percentage points above Euribor.
3.
STATEMENTS OF THE SELLER
3.1
The Seller hereby represents
to the Buyer by way of an independent obligation (
selbständige
Verpflichtung
) within the meaning of § 311 of the German Civil Code
(
Bürgerliches Gesetzbuch
) that t
he Seller is the
legal and beneficial owner of the Share, which is free of any encumbrances or
any other rights for the benefit of third parties. The Seller has the right and
the power to freely dispose of the Share, and no consent of any third party
would be required for such disposal, and such disposal would not violate the
right of any third party.
3.2
All statutory rights of the Buyer (
gesetzlich begründete Ansprüche
) in connection with the sale
and transfer of the Share shall be excluded.
4.
CONFIDENTIALITY
The contents of this Agreement, its
existence and all matters relating to this Agreement as well as the
negotiations relating to this Agreement shall be held confidential, and each
Party agrees not to divulge any such information to any person without the
prior written approval of the other Parties, such approval not to be
unreasonably withheld or delayed. Either party may, without such approval,
announce or disclose such matters or information if required to do so by law or
the rules of any relevant stock exchange or governmental or other regulatory or
supervisory body or authority of competent jurisdiction to whose rules the
Party making the announcement or disclosure is subject, provided always that
the Party making such announcement or disclosure shall consult with the other
Parties in advance as to the form, contents and timing of such announcement or
disclosure.
5.
MISCELLANEOUS
5.1
Costs/Expenses
Clause 11 of the Master Agreement shall
apply
mutatis mutandis
.
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5.2
Notification in accordance
with § 16 GmbHG
The Parties undertake to notify the company
of the share transfers performed under this Agreement in accordance with § 16 I
GmbHG immediately after the notarisation of this Agreement.
5.3
Governing Law and Dispute
Resolution
This Agreement and the rights of the
Parties hereunder shall be governed by and construed in accordance with the
laws of the Federal Republic of Germany. The competent court of Frankfurt/Main
shall have exclusive jurisdiction.
5.4
Waiver
None of the terms of this Agreement shall
be deemed to have been waived by either Party, unless such waiver is in writing
and signed by that Party. The waiver by either Party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any other provision of this Agreement or of any further breach of the provision
so waived. No extension of time for the performance of any obligation or act
hereunder shall be deemed to be an extension of time for the performance of any
other obligation or act.
5.5
Amendments and Modifications
This Agreement may not be modified, amended
or changed in any respect except in writing, unless notarisation is required.
The same shall apply to any waiver of the need to comply with this Clause 5.5.
5.6
Assignment
Neither Party may assign or charge any of
its rights under this Agreement without the prior written consent of the other
Parties always provided that the Parties may assign its rights under this
Agreement to an Affiliate without such consent.
5.7
Severability
Each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be or become wholly or partially
unenforceable or invalid under any applicable law, such provision shall be
ineffective only to the extent of such unenforceability or invalidity, and the
remaining provisions of this Agreement shall continue to be binding and in full
force and effect. The same shall apply if it should transpire that this
Agreement contains an omission. Instead of the invalid or unenforceable
provision the Parties shall agree on an appropriate provision which comes as
close as legally possible to what the Parties were trying to achieve with the
invalid or unenforceable provision (or, as the case may be, the invalid or
unenforceable part thereof). In the event that an omission needs to be
rectified, a provision shall be agreed upon which in view of the purpose and
intent of this Agreement comes as close as possible to what the Parties would
have agreed if they had been aware of the omission at the time that this
Agreement was concluded.
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