UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of Earliest Event Reported):
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May 14, 2015
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SABRE CORPORATION
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(Exact name of registrant as specified in its charter)
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Delaware
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001-36422
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20-8647322
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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3150 Sabre Drive, Southlake, Texas
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76092
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
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(682) 605-1000
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Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Sabre Corporation (Sabre) has announced that its wholly-owned subsidiary, Sabre Technology
Enterprises II Ltd. (Purchaser), entered into a Share Purchase Agreement (the Purchase
Agreement), dated as of May 14, 2015, with Abacus International Holdings Ltd (Seller), pursuant
to which Purchaser has agreed to purchase all of the shares of capital stock of Abacus
International Pte Ltd (Abacus) held by Seller (the Shares). Abacus is a Singapore-based
business-to-business travel e-commerce provider that serves the Asia-Pacific region. Purchaser
currently owns approximately 35 percent of the outstanding shares of capital stock of Abacus.
Following the closing of the transaction, Purchaser will own all of the outstanding shares of
Abacus, and Abacus will become an indirect, wholly-owned subsidiary of Sabre.
The aggregate purchase price for the Shares is payable in cash at closing in an amount equal
to 65 percent of the following (i) US$632 million plus (ii) Abacus and its subsidiaries actual
cash and cash equivalents net of indebtedness. The purchase price is subject to a net working
capital adjustment. Sabre expects to fund the acquisition of the Shares with a combination of $250
million of cash on hand, together with draws on its revolving credit facility and debt financing.
The acquisition is not conditioned on receipt of financing by Sabre or Purchaser. We expect that
the acquisition of Abacus and the national marketing companies described below will require
approximately $500 million in funds, including advisory and financing costs.
The acquisition is expected to close during the third quarter of 2015, subject to regulatory
approvals and the satisfaction of certain customary closing conditions. The acquisition includes
new long-term distribution agreements between Abacus and the owner carriers that own an interest in
Seller, the effectiveness of which are conditioned upon the closing of the transaction.
The Purchase Agreement also contains certain customary representations, warranties and
covenants. Sellers liability with respect to breaches of representations and warranties is
limited to those with respect to title and authority. Breaches of certain operational
representations and warranties are expected to be insured under an insurance policy.
The Purchase Agreement provides for certain non-competition and non-solicitation provisions
with respect to Seller and any entity controlled by Seller through the fifth anniversary of
closing. The acquisition includes separate non-competition and non-solicitation undertakings of
the owner carriers through the fifth anniversary of closing.
In addition, Sabre expects that Abacus will acquire all or a controlling interest in certain
national marketing companies in the Asia-Pacific region. Abacus currently owns minority interests
in these national marketing companies, and it is expected that these acquisitions would close at or
about the same time as the Purchase Agreement.
The description of the Purchase Agreement and the transaction is qualified in its entirety by
reference to the copy of the agreement filed as Exhibit 2.1 to this report, which is incorporated
herein by reference.
Item 7.01. Regulation FD.
Sabre has issued a press release announcing the Purchase Agreement referred to in Item 1.01
above. A copy of the press release is furnished as Exhibit 99.1.
Note: Information in this report furnished pursuant to Item 7.01 and Exhibit 99.1 shall not be
deemed to be filed for the purposes of Section 18 of the Securities Exchange Act of 1934 or
otherwise subject to the liabilities of that section. This report will not be deemed an admission
as to the materiality of any information in the report that is required to be disclosed solely by
Regulation FD.
Forward-Looking Statements
Statements made in this Current Report on Form 8-K under Item 1.01 and Item 7.01 (including
the press released referred to under Item 7.01 and furnished as Exhibit 99.1) that are not
statements of historical or current facts constitute forward-looking statements. Forward-looking
statements relate to expectations, beliefs, projections, future plans and strategies, financing
plans, future acquisitions and related activities, anticipated events or trends and similar
expressions concerning matters that are not historical facts, such as statements regarding the
closing of the Purchase Agreement and the sources of funds for the acquisition of the Shares. In
many cases, you can identify forward-looking statements by terms such as expects, may, will,
should, plans, anticipates, believes, estimates, predicts, potential or the negative
of these terms or other comparable terminology. The forward-looking statements are based on Sabres
current expectations and assumptions regarding its business, the economy and other future
conditions and are subject to risks, uncertainties and changes in circumstances that may cause
events or our actual activities or results to differ significantly from those expressed in any
forward-looking statement. Although Sabre believes that the expectations reflected in the
forward-looking statements are reasonable, Sabre cannot guarantee future events, results, actions,
levels of activity, performance or achievements. You are cautioned not to place undue reliance on
these forward-looking statements. Unless required by law, Sabre undertakes no obligation to
publicly update or revise any forward-looking statements to reflect circumstances or events after
the date they are made. A number of important factors could cause actual results to differ
materially from those indicated by the forward-looking statements, including, but not limited to,
those factors described in Part I, Item 1A, Risk Factors in Sabres Annual Report on Form 10-K
for the year ended December 31, 2014 filed with the Securities and Exchange Commission.
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Item 9.01. Financial Statements and Exhibits. |
(d) Exhibits
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Exhibit Number
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Description |
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2.1 |
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Share Purchase Agreement, dated as of May 14, 2015 by
and between Abacus International Holdings Ltd and Sabre
Technology Enterprises II Ltd. |
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99.1 |
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Press Release. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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SABRE CORPORATION
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May 14, 2015
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By:
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Richard A. Simonson
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Name: Richard A. Simonson
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Title: Executive Vice President and Chief Financial Officer
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Exhibit Index
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Exhibit No.
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Description
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2.1
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Share Purchase Agreement, dated as of May 14, 2015 by and between Abacus International Holdings Ltd and Sabre Technology Enterprises II Ltd.
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99.1
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Press Release
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PRIVATE & CONFIDENTIAL
DATED THIS 14TH DAY OF MAY 2015
BETWEEN
ABACUS INTERNATIONAL HOLDINGS LTD (the Vendor)
AND
SABRE TECHNOLOGY ENTERPRISES II LTD.
(the Purchaser)
SHARE PURCHASE AGREEMENT
relating to the sale and purchase of
shares in the capital of
ABACUS INTERNATIONAL PTE LTD
CONTENTS
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1. |
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DEFINITIONS AND INTERPRETATION |
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3 |
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2. |
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SALE AND PURCHASE OF SALE SHARES |
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12 |
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3. |
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CONDITIONS PRECEDENT |
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13 |
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4. |
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CONSIDERATION |
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15 |
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5. |
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COMPLETION |
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18 |
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6. |
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REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS |
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21 |
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7. |
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UNDERTAKINGS |
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23 |
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8. |
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INDEMNITY AND CLAIMS AGAINST THE VENDOR |
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31 |
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9. |
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ANNOUNCEMENT |
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32 |
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10. |
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CONFIDENTIALITY |
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32 |
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11. |
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NOTICES |
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34 |
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12. |
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MISCELLANEOUS |
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35 |
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SCHEDULES
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SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
SCHEDULE 5
SCHEDULE 6
SCHEDULE 7
SCHEDULE 7.3.3
SCHEDULE 7.11
SCHEDULE 8
SCHEDULE 9
SCHEDULE 10
SCHEDULE 11
SCHEDULE 12
SCHEDULE 13
SCHEDULE 14
SCHEDULE 15
APPENDIX A
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PARTICULARS OF THE GROUP COMPANIES
NUMBER NOT USED
OWNER CARRIERS
OWNER CARRIER UNDERTAKING
BASIS OF PREPARATION OF THE COMPLETION ACCOUNTS
REGULATORY APPROVALS
THIRD PARTY APPROVALS
SECONDED VENDOR GROUP EMPLOYEES
THIRD PARTY BENEFICIARY TERMINATIONS
WARRANTIES BY THE VENDOR
AGREEMENTS TERMINATED AS OF COMPLETION
OWNER CARRIERS SIGNING DISTRIBUTION AGREEMENT
FORM OF AH ASSIGNMENT AGREEMENT
FORM OF INFINI DIVIDENDS AGREEMENT
RELEVANT CLAIMS PROCEDURES
DATA ROOM INDEX
REPRESENTATIONS AND WARRANTIES INSURANCE
GROUP COMPANY CLAIMS |
1
THIS AGREEMENT is made on the 14th day of May 2015
BETWEEN:
(1) |
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ABACUS INTERNATIONAL HOLDINGS LTD, a Cayman Islands company and having its registered office
address c/- Trident Trust Company (Cayman) Limited at 4th floor, One Capital Place, P.O. Box
847, Grand Cayman, Cayman Islands (the Vendor); and |
(2) |
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SABRE TECHNOLOGY ENTERPRISES II LTD., a Cayman Islands company and having its registered
office address c/- Intertrust Corporate Services (Cayman) Limited at 190 Elgin Avenue, George
Town, Grand Cayman, KY1-9005, Cayman Islands (the Purchaser). |
WHEREAS:
(A) |
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ABACUS INTERNATIONAL PTE LTD, a private company limited by shares incorporated in Singapore
and having its registered office address at 3 Tampines Central 1, #08-01, Abacus Plaza,
Singapore 529540 (the Company). |
(B) |
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Pursuant to the Reconstruction Agreement, dated 27 February 1998, among Abacus Distribution
Systems Pte Ltd (ADS), the Vendor and the Company (the Reconstruction Agreement), the
Company acquired and agreed to carry on the Undertaking (as defined in the Reconstruction
Agreement) of ADS as a going concern. |
(C) |
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At the date of this Agreement, the Company has an issued and paid-up share capital of
US$56,579,412.42 consisting of 51,270,487 ordinary shares (collectively, the Shares and
each, a Share), each of which is fully paid. |
(D) |
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At the date of this Agreement, the Vendor is the legal and beneficial owner of 33,325,817
Shares (the Sale Shares). |
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The Vendor has agreed to sell the Sale Shares, and the Purchaser has agreed to purchase the
Sale Shares, on the terms and subject to the conditions of this Agreement. |
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IT IS HEREBY AGREED as follows: |
1
1.1
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DEFINITIONS AND INTERPRETATION
Definitions |
(a) The capitalized terms set forth below shall have the meanings as set forth below:
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Term |
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Page |
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Term |
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Page |
ADS |
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3 |
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Payor |
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31 |
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Capital Alteration |
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56 |
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Permits |
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62 |
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Certain Countries |
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62 |
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Policies |
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71 |
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Company |
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3 |
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Pre-completion Statement |
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15 |
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Company Marks |
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29 |
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Proceedings |
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38 |
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Completion Net Current Assets Statement |
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16 |
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Purchase Consideration |
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15 |
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Completion Statement |
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16 |
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Purchaser |
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3 |
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Consultant |
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17 |
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R&W Insurance |
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29 |
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Estimated Completion Net Current
Assets Statement |
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15 |
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Reconstruction Agreement |
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3 |
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Guidelines |
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62 |
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Representatives |
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33 |
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Indemnification Claims |
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31 |
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Sale Shares |
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3 |
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Infini Dividends Agreement |
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19 |
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Shares |
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3 |
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Minority Investment |
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56 |
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Shortfall Amount |
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17 |
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Net Vendor Cash |
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30 |
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Subsequent Receivables |
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58 |
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Notice of Disagreement |
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16 |
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Third Party Claims |
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77 |
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Overpayment Amount |
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17 |
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Vendor |
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3 |
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(b) In this Agreement, unless the context otherwise requires:
Adjustment Calculation Time means 12:01 a.m. (Singapore time) on the Completion Date;
Affiliates in relation to a person, means any person that, directly or indirectly, through
one or more intermediaries, and whether by itself or with or (where relevant) through his
immediate family members or any other person who is acting in concert with it/him pursuant
to an agreement or understanding (whether formal or informal), Controls or is Controlled by,
or is under common Control with that first-mentioned person and, in the case of a natural
person, includes his immediate family members. The term Control used in this Agreement
means the possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of such other person, whether through the ownership of voting
securities, by contract, or otherwise and derivative terms thereof (including Controlling,
Controlled by and under common Control with) shall also bear such meaning as aforesaid.
For the avoidance of doubt, an Affiliate of a corporation includes its related
corporations;
Agreed Form means, in relation to a document, such document in the terms agreed or
substantially agreed between the Vendor and the Purchaser prior to the date of this
Agreement with such alterations as may be agreed in writing between the Vendor and the
Purchaser from time to time;
Air Carrier means a passenger air carrier, including any OC Carrier;
AH Assignment Agreement means the Deed of Assignment in the form of Schedule 11;
Applicable Percentage means a percentage equal to the number of Sale Shares divided by the
number of Shares;
Audited Accounts means the audited consolidated balance sheet of the Company and its
Subsidiaries as at 31 December 2013, the consolidated profit and loss account and the
consolidated cash flow statement of the Company and its Subsidiaries for the financial year
ended 31 December 2013;
Audited Accounts Date means 31 December 2013;
Business means the operation of a GDS System or the carrying on of a marketing or
distribution business for a GDS System, but shall not include (i) the business conducted by
Infini in Japan in the manner such business has been conducted prior to the date of this
Agreement and (ii) the business conducted by any other NMC in which an Owner Carrier has an
interest at the date of this Agreement, in the manner such business has been conducted prior
to the date of this Agreement;
Business Day means a day on which commercial banks are generally open for business in
Singapore for the transaction of normal banking business (excluding Saturdays, Sundays and
public holidays);
Business Information Technology means all information technology infrastructure, including
software (in both object and source code), hardware, firmware, networks and connecting
media;
Business IP means:
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(i) |
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all Intellectual Property which is owned by the Group Companies at the date of
Completion which relates to or is used or enjoyed or intended to be used or enjoyed by
the Group Companies in connection with the businesses of the Group Companies; and |
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all rights in any Intellectual Property (other than rights of ownership) which
are used or enjoyed or intended to be used or enjoyed by the Group Companies in
connection with the businesses of the Group Companies; |
Companies Act means the Companies Act (Chapter 50) of Singapore as the same may from time
to time be amended or supplemented;
Company Material Adverse Effect means any state of facts, change, effect, condition,
development, event, violation or circumstance the effect of which is or would reasonably be
expected to be both material and adverse, either individually or in the aggregate, to the
(i) property, (ii) business, (iii) operations, (iv) assets (tangible and intangible), (v)
liabilities, (vi) financial condition and/or (vii) results of operation of the Group
Companies, taken as a whole, and/or the ability of the Vendor to perform any of its material
obligations under this Agreement;
Competition Authority means any antitrust, competition or other authority competent to
impose any liability in respect of potential antitrust and/or competition issues related to
the execution of this Agreement;
Completion means the completion of the sale and purchase of the Sale Shares pursuant to
Clause 5;
Completion Date means:
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the first day of the calendar month following the end of the calendar month in
which the last condition set out in Clause 3.1 to be satisfied is fulfilled or waived;
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if there are less than five Business Days between the day on which the last
condition set out in Clause 3.1 to be satisfied is fulfilled or waived and the date in
clause (i) above, then the first day of the second calendar month following the
calendar month in which the last condition set out in Clause 3.1 to be satisfied is
fulfilled or waived, |
(or such other date as the Vendor and the Purchaser may agree in writing);
Completion Net Working Capital means the Net Working Capital as of the Adjustment
Calculation Time;
Completion Purchase Consideration means the Purchase Consideration (calculated using the
Estimated Net Completion Cash instead of the Net Completion Cash, and using the Estimated
Completion Net Working Capital instead of the Completion Net Working Capital) as set out in
the Pre-Completion Statement as Completion Purchase Consideration;
Confidential Business Information means Confidential Information which is proprietary
and/or confidential to a Group Company;
Confidential Information means any information which is proprietary and/or confidential to
a Party or Group Company disclosed in connection with the transactions contemplated by this
Agreement including but not limited to (1) the terms and conditions of this Agreement and
any agreement entered into pursuant to this Agreement, the negotiations relating to this
Agreement (and such other agreements), (2) any applicable information concerning the
organisation, business, finances, transactions and/or affairs of a Party or Group Company,
dealings of a Party or Group Company, secret and/or confidential information which relates
to the business or Party or Group Company or any of its principals, clients or customers
transactions or affairs, (3) any applicable Partys or Group Companys technology, designs,
documentation, manuals, budgets, financial statements or information, accounts, dealers
lists, customer lists, sales information, business plans, market forecasts, discoveries,
concepts, analysis, plans, models, standards, protocols, techniques, processes, procedures,
methods, test results, test procedures, reports, diagrams, formulae, calculations,
depictions, compositions, specifications, drawings, instructions, data, marketing studies,
notes, memoranda and the information contained therein, (4) any applicable information
therein in respect of trade secrets, technology and technical or other information relating
to the development, manufacture, analysis, marketing, sale or supply or proposed
development, manufacture, analysis, marketing, sale or supply of any products or services by
a Party or Group Company, and (5) applicable information and material which is either marked
confidential or is by its nature intended to be exclusively for the knowledge of the
recipient alone;
Cut-off Date means 31 December 2015;
Data Room means the electronic data room maintained by or on behalf of the Vendor and
accessible at https://everest.firmex.com through which the Purchaser and its Representatives
have had access to information and materials relating to the Company;
Data Room Documentation means all documentation contained in the Data Room up to and
including the date that is one (1) Business Day prior to the date of this Agreement, a
complete list of which documentation is attached to this Agreement as Schedule 14. For
purposes of Schedule 8 to this Agreement, the phrase Except as disclosed in the Data Room
Documentation and phrases of similar meaning shall mean information disclosed fairly and
with reasonable specificity in the Data Room Documentation. Disclosed fairly and with
reasonable specificity shall mean information disclosed in such a manner and in such detail
as to enable a reasonable purchaser (which holds an existing minority interest in the
Company) to make an informed assessment of the fact, matter or circumstance concerned;
Definitive Agreements means collectively:
(i) this Agreement and the Disclosure Letter;
(ii) the Distribution Agreements;
(iii) the Owner Carrier Undertakings;
(iv) the AH Assignment Agreement; and
(v) the Infini Dividends Agreement;
Disclosure Letter means the disclosure letter of even date with this Agreement (as amended
and/or supplemented prior to Completion), disclosing information constituting exceptions to
the Vendors Warranties, to be executed by the Vendor and delivered to the Purchaser on the
date of this Agreement;
Distribution Agreement means each distribution agreement entered into on or about the date
of this Agreement among the Company and the applicable Owner Carrier and such other exhibits
and annexes attached thereto with respect to each Owner Carrier as mutually agreed among the
Company and the applicable Owner Carrier (including, for the avoidance of doubt, the General
Support Agreement and the NMC Support Agreement, as such terms are defined therein), save in
respect of ANA Holdings Inc., where such term shall refer to the distribution agreement
among the Company and All Nippon Airways Co Ltd and the exhibits and annexes attached
thereto with respect to All Nippon Airways Co Ltd (including, for the avoidance of doubt,
the General Support Agreement and the NMC Support Agreement, as such terms are defined
therein) in the form agreed as of the date of this Agreement;
Encumbrance means any form of legal or equitable security interest or other encumbrance,
including but not limited to any claim, mortgage, assignment of receivables, debenture,
lien, charge, pledge, power of sale, equity, title retention, right to acquire,
hypothecation, option, pre-emptive or other similar right, right of first refusal,
restriction, third-party right or interest, any preferential arrangement (including title
transfers and retention arrangements or otherwise) or any other encumbrance whatsoever
having similar effect, or an agreement, arrangement or obligation to create any of the
foregoing;
Estimated Completion Net Working Capital means the Vendors good faith estimate of the Net
Working Capital measured as of the Adjustment Calculation Time;
Estimated Net Completion Cash means the Vendors good faith estimate of the sum of (a)
cash or cash equivalents of the Group Companies (excluding pledged cash, escrowed cash or
other restricted cash, in each case, other than the SP Pledged Cash), minus (b)
Indebtedness of the Group Companies, in each case, calculated in accordance with Singapore
Financial Reporting Standards and measured as of the Adjustment Calculation Time, except
that Estimated Net Completion Cash shall not include any cash or cash equivalents or
Indebtedness to the extent included in the calculation of Estimated Completion Net Working
Capital;
Estimated Net Working Capital Adjustment means the difference, either positive or
negative, after subtracting the Net Working Capital Target from the Estimated Completion Net
Working Capital;
Final Purchase Consideration means the Purchase Consideration set forth on the final and
binding Completion Statement as Final Purchase Consideration;
GDS or GDS System means a global distribution system (also commonly referred to as a
computerised reservation system) which (i) collects, aggregates and displays data concerning
travel-related products and services provided by Travel Vendors; and (ii) enables
Subscribers to reserve and/or confirm the booking of and/or issue tickets for such travel
related-products and services; and (iii) earns revenue from Travel Vendors for providing the
services in (i) and/or (ii). For the avoidance of doubt, the terms GDS and GDS System
exclude Participating Carriers Direct Connection, the Carrier Website, and Participating
Carriers internal reservations systems (and related channels, devices and call centres) (as
such terms are defined in the Distribution Agreement);
GDS Operator means a person (or any person which Controls any person or is Controlled by
any person) which operates a GDS System or any portion thereof;
GDS Services means the travel-related information products, services and related
functionality provided through a GDS System;
Government or Government Entity means any agency, instrumentality, subdivision,
court or other body of any federal, regional, or municipal government (but excluding any
commercial or similar entities that the government controls or owns, directly or indirectly,
including any state-owned and state-operated companies or enterprises (e.g., a
government-owned air carrier or travel agency), any international organization such as the
United Nations or the World Bank, and any political party);
Government Official means an employee or official of any Government or Government Entity
or any candidate for public office;
Group Companies means the Company and its Subsidiaries, details of which are contained in
Schedule 1, and Group Company means any of them, save in respect of Schedule 8 where the
definitions Group Companies and Group Company shall exclude Abacus Distribution Systems
(Australia) Pty Ltd and ABACUS.com Pte Ltd for purposes of Clause 3 of the Vendors
Warranties;
Indebtedness means all monetary obligations of such person (i) for borrowed money, (ii)
evidenced by notes, bonds, debentures or similar contracts, (iii) in respect of outstanding
letters of credit to the extent drawn, (iv) for lease obligations or other obligations
required to be treated as indebtedness under Singapore Financial Reporting Standards and/or
(v) in respect of all guarantees for any of the foregoing;
Infini or INFINI means Infini Travel Information Inc., a Japan corporation;
Inland Revenue means the Inland Revenue Authority of Singapore;
Intellectual Property means all intellectual property rights including, without
limitation, trade marks, service marks, trade names, domain names, logos, patents,
inventions, database rights, copyrights, registered designs, design rights or applications
for any of the foregoing and all other similar rights in any part of the world, in each case
whether registered or unregistered including, without limitation, where such rights are
obtained or enhanced by registration, any registration of such rights and applications,
pending applications and rights to apply for such registrations and all renewals and
extensions thereof existing in any part of the world, whether now known or in the future
created;
Intermediary means any agent, sales agent, commission agent, distributor, reseller,
subcontractor, consultant, representative, or any other third party with whom the Company
transacts business and is authorized to act and/or engage in business in any way on the
Companys behalf;
Losses means all losses, liabilities, costs (including legal costs and experts and
consultants fees), charges, expenses, actions, proceedings, claims and demands and each a
Loss;
National Marketing Company or NMC means a person that distributes GDS Services to
existing and potential Subscribers in a designated territory;
Net Completion Cash means (a) cash or cash equivalents of the Group Companies (excluding
pledged cash, escrowed cash or other restricted cash, in each case, other than the SP
Pledged Cash), minus (b) Indebtedness of the Group Companies, in each case,
calculated in accordance with Singapore Financial Reporting Standards and measured as of the
Adjustment Calculation Time, except that Net Completion Cash shall not include any cash or
cash equivalents or Indebtedness to the extent included in the calculation of Net Working
Capital;
Net Working Capital means an amount equal to the current assets of the Group Companies,
minus the current liabilities of the Group Companies, in each case, set forth on Schedule
5 calculated in accordance with Singapore Financial Reporting Standards (except as otherwise
set forth on Schedule 5) and measured as of the Adjustment Calculation Time, except that
Net Working Capital shall not include (or take into account) any assets or liabilities to
the extent included in the calculation of Net Completion Cash;
Net Working Capital Adjustment means the difference, either positive or negative, after
subtracting the Net Working Capital Target from the Net Working Capital;
Net Working Capital Target means negative US$42,900,000;
OC Carrier means any Air Carrier operated by an Owner Carrier or by entities that,
directly or indirectly, through one or more intermediaries, are Controlled by such Owner
Carrier;
OC Group means in relation to each Owner Carrier, that Owner Carrier and any entities
that, directly or indirectly, through one or more intermediaries, are Controlled by that
Owner Carrier;
Owner Carrier means each of the persons listed on Schedule 3;
Owner Carrier Undertaking means an undertaking in the form of Schedule 4;
Participant means a Travel Vendor that has a Participation Agreement with a GDS Operator
for the display of information, bookings and reservations regarding its products or services
in the GDS of such GDS Operator;
Participation Agreement means the form of agreement which may be in effect from time to
time between a GDS Operator and a Participant for the sale of such Participants travel
products and/or the distribution of its information through the GDS of such GDS Operator;
Parties means the Vendor and the Purchaser and Party means any of them;
Payment means the provision of anything of value, including cash payments, check payments,
wire transfers, event tickets, meals, hotel or lodging accommodations, air fare, and any
other in-kind transfers;
Premises means all of the real property and other premises occupied by employees of any
Group Company in connection with the Business as presently conducted;
Purchaser Group means prior to the Completion Date the Purchaser and its Affiliates
(excluding the Group Companies) and on or after the Completion Date the Purchaser and its
Affiliates (including the Group Companies);
Regulatory Approvals means the approvals and consents for the entry into, completion and
performance of this Agreement by the parties thereto, from the Government Entities set out
in Schedule 6;
Relevant Claim means a claim by the Purchaser under or in connection with this Agreement
or any non contractual obligations arising out of and/or in connection with this Agreement,
whether for damages, compensation, indemnity payment and/or other relief;
Relevant Provisions means Clause 1 (Definitions and Interpretation), Clause 9
(Announcement), Clause 10 (Confidentiality), Clause 11 (Notices) and Clauses 12.1 (Entire
Agreement), 12.2 (Release), 12.3 (Indulgence, Waiver, etc.), 12.4 (Successors and Assigns),
12.7 (Reasonableness), 12.9 (Severability of Provisions), 12.10 (Counterparts), 12.11
(Contracts (Rights of Third Parties) Act), 12.13 (Governing Law and Submission to
Jurisdiction) and 12.14 (Representation of Vendor);
Settlement Date means the date on which the (i) Purchaser is obliged to pay the Shortfall
Amount to Vendor or (ii) Vendor pays the Overpayment Amount to Purchaser, in each case as
contemplated by Clause 4.3;
Singapore Dollars and the symbol S$ means the lawful currency of the Republic of
Singapore;
Shareholders Agreement means the Shareholders Agreement dated February 27, 1998 among the
Vendor, Purchaser and the Company;
SMP means special marketing programs and special marketing agreements;
SP Pledged Cash means the fixed deposit of US$10,000,000 pledged by the Company to Bank of
America in support of a line of credit provided by Bank of America to Sabre Pacific Pty Ltd
with respect to Sabre Pacific Pty Ltds foreign exchange transactions for hedging purposes,
such pledged cash being identified on page 32 of the Audited Accounts as the line item
Deposits pledged under item 15 (Cash and cash equivalents) in the Notes to the financial
statements;
Stamp Duty Documents means:
|
(i) |
|
a letter in the form prescribed by the Stamp Duty Branch of the Inland Revenue
incorporating a working sheet D duly executed by a director of the Company computing
the net asset value per Sale Share; or |
|
(ii) |
|
such other documents as may be prescribed from time to time by the Stamp Duty
Branch of the Inland Revenue for the purpose of assessing the stamp duty payable on a
transfer of shares; |
Subscriber means any travel agent or other person that operates a business (i.e., not
individual persons, such as consumers) that utilizes GDS Services, including utilizing GDS
Services to reserve and/or confirm the booking of and/or issue tickets for travel
related-products and services;
Subsidiaries means the subsidiaries of the Company listed in Part (C) of Schedule 1;
Supermajority Approval means the approval of the majority of the members of the Companys
board of directors, which majority must include at least one director appointed by
Purchaser;
Tax Authority means any taxing, revenue or other authority competent to impose any
liability in respect of Taxation and/or responsible for the administration and/or collection
of Taxation and/or enforcement of any law in relation to Taxation;
Tax, Taxes and Taxation comprise all forms of taxes and taxation in Singapore or other
countries where the business of the Group Companies is or was conducted or whenever and
wherever imposed (including, without limitation, capital gains tax, income tax, estate duty,
profits tax, stamp duty, goods and services tax, value added tax, purchase tax, custom and
other import and/or export duties) and any duties and levies and all penalties, charges,
costs and interest relating to any of the foregoing;
Third Party Approvals means the approvals and consents to be obtained from the parties set
out in Schedule 7;
Title and Authority Warranties means Clause 1.1, Clause 1.2, Clause 3.1, Clause 3.2,
Clause 3.3.1, Clause 3.3.2, Clause 3.3.3, and Clause 3.3.4 of the Vendors Warranties;
Travel Vendor means any Air Carrier (including all scheduled, charter, domestic and
international Air Carriers), car rental company, surface transportation carrier, hotel or
lodging provider, railroad, steamship company, cruise or tour operator or other vendor of
travel-related products, information or services, but excluding any such person to the
extent it is operating as a travel agent, provided that a person may be both a travel agent
for some purposes and a Travel Vendor for other purposes;
Unaudited Accounts means the consolidated profit and loss statement and balance sheet of
the Company and its subsidiaries up to and as at 31 December 2014;
Unaudited Accounts Date means 31 December 2014;
U.S. Dollars and the symbol US$ means the lawful currency of the United States of
America;
Vendor Group means prior to the Completion Date the Vendor and entities that directly or
indirectly, through one or more intermediaries, are Controlled by the Vendor (including the
Group Companies), and on or after the Completion Date the Vendor and any entities that
directly or indirectly, through one or more intermediaries, are Controlled by the Vendor
(excluding the Group Companies); and
Vendors Warranties means the representations and warranties on the part of the Vendor
under this Agreement set out in Schedule 8, and Vendors Warranty means any one of them.
In this Agreement, headings are for convenience only and do not affect interpretation, and
unless the context requires otherwise:
|
1.2.1 |
|
save as expressly provided in this Agreement, the Interpretation Act (Chapter
1) of Singapore shall apply to this Agreement in the same way as it applies to an
enactment; |
|
1.2.2 |
|
words denoting the singular shall include the plural and vice versa; words
denoting any gender shall include all genders; |
|
1.2.3 |
|
any reference to a statutory provision shall include such provision and any
regulations made in pursuance thereof as from time to time modified or re-enacted
whether before or after the date of this Agreement and (so far as liability thereunder
may exist or can arise) shall include also any past statutory provisions and/or
regulations (as from time to time modified or re-enacted) which such provisions and/or
regulations have directly or indirectly replaced; |
|
1.2.4 |
|
the words written and in writing include any means of visible
reproduction; |
|
1.2.5 |
|
any reference to Clauses, Recitals, Appendices and Schedules are to be
construed as references to clauses and recitals of, and appendices and schedules to,
this Agreement; |
|
1.2.6 |
|
paragraph is a reference to a paragraph of the Clause or Schedule in which
such reference appears; |
|
1.2.7 |
|
any reference to a date or time of day is a reference to Singapore date or
time unless provided otherwise; |
|
1.2.8 |
|
references to a day other than a Business Day shall be a reference to a
calendar day, and any thing or obligation to be done under this Agreement which
requires or falls to be done on a stipulated day, shall be done on the next succeeding
Business Day, if the day upon which that thing or obligation is required or falls to be
done falls on a day which is not a Business Day; |
|
1.2.9 |
|
references to any Singapore legal term shall, in respect of any jurisdiction
other than Singapore, be construed as references to the term or concept which most
nearly corresponds to it in that jurisdiction; |
|
1.2.10 |
|
references to this Agreement and any other document or instrument referred to in this
Agreement include this Agreement and any such other document or instrument as amended,
supplemented, modified or novated from time to time; |
|
1.2.11 |
|
the term related corporation shall have the same meaning in this Agreement as its
definition in the Companies Act; |
|
(i) |
|
a person includes any individual, corporation, business
trust, firm, partnership or unincorporated association (whether or not having
separate legal personality); |
|
(ii) |
|
a corporation includes any company, corporation or any body
corporate, wherever incorporated; and |
|
(iii) |
|
immediate family of a person, means the persons spouse,
child, adopted child, step-child, sibling, step-sibling, parent and
step-parent; |
|
1.2.13 |
|
where any statement is qualified by the expression so far as the Vendor is aware or
to the best of the knowledge, information and belief of the Vendor or any similar
expression, that statement shall be deemed to refer to the actual knowledge of each
member of the board of directors of the Vendor, after conducting due inquiry of the
Chief Executive Officer, the Chief Financial Officer, and the Chief Legal Officer of
the Company; |
|
1.2.14 |
|
the word including shall be read to be followed by without limitation; and |
|
1.2.15 |
|
the Recitals and the Schedules form an integral part of this Agreement and references
to this Agreement shall include the Recitals and the Schedules. |
2 |
|
SALE AND PURCHASE OF SALE SHARES |
2.1 |
|
Sale of the Sale Shares |
The Vendor shall, as legal and beneficial owner, sell the Sale Shares, and the Purchaser
shall purchase the Sale Shares, on the terms and subject to the conditions of this
Agreement, free from all Encumbrances, and with all rights, benefits and entitlements
attaching to the Sale Shares as at Completion (including the right to receive all dividends
or distributions declared, made or paid on or after Completion).
2.2 |
|
Waivers of Pre-emption |
The Vendor shall procure and ensure that on or prior to Completion any and all rights of
pre-emption over the Sale Shares are waived irrevocably by the persons entitled thereto save
that the Vendor shall not be required to procure and ensure such waiver from the Purchaser.
|
3.1.1 |
|
The obligation of each Party to effect Completion of the sale and purchase of
the Sale Shares is conditional upon: |
|
(i) |
|
the Third Party Approvals being granted or obtained, and being
in full force and effect and not having been withdrawn, suspended, amended or
revoked, and if such consents or approvals are granted or obtained subject to
any conditions, such conditions being reasonably acceptable to each of the
Vendor and the Purchaser; |
|
(ii) |
|
the Regulatory Approvals being granted or obtained, and being
in full force and effect and not having been withdrawn, suspended, amended or
revoked, and if such consents or approvals are granted or obtained subject to
any conditions, such conditions being reasonably acceptable to each of the
Vendor and the Purchaser, unless waived by the Purchaser or the Vendor as the
case may be; and |
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(iii) |
|
no legal proceeding having been commenced or threatened
against the Purchaser Group, the Vendor or any Group Company, which would
prevent the Completion, and no injunction or restraining order having been
issued by any Governmental Entity, which is in effect and which restrains or
prohibits any transaction contemplated hereby. |
|
3.1.2 |
|
The obligation of the Purchaser to effect Completion of the sale and purchase
of the Sale Shares is conditional upon: |
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(i) |
|
the Title and Authority Warranties being in the aggregate true
and correct in all material respects and not in any material respect misleading
as of the date of this Agreement and at Completion as if they had been entered
into afresh at Completion and with reference to the circumstances then existing
at Completion; |
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(ii) |
|
the Vendor having complied in all material respects with each
of its obligations and undertakings set forth in this Agreement to be performed
by the Vendor on or prior to the Completion Date; |
|
(iii) |
|
there not being a Company Material Adverse Effect, unless
waived by the Purchaser; |
|
(iv) |
|
the R&W Insurance not having been terminated by the insurer;
and |
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(v) |
|
each Definitive Agreement (other than this Agreement) having
been executed by each of the parties thereto and not having been terminated,
withdrawn, suspended, amended and/or revoked as of Completion. |
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3.1.3 |
|
The obligation of the Vendor to effect Completion of the sale and purchase of
the Sale Shares is conditional upon: |
|
(i) |
|
the warranties of the Purchaser in Clause 6.8 being in the
aggregate true and correct in all material respects and not misleading in any
material respect as of the date of this Agreement and at Completion as if they
had been entered into afresh at Completion and with reference to the
circumstances then existing at Completion; |
|
(ii) |
|
the Purchaser shall have complied in all material respects with
each of its obligations and undertakings set forth in this Agreement to be
performed by the Purchaser on or prior to the Completion Date; and |
|
(iii) |
|
each Definitive Agreement (other than this Agreement) having
been executed by each of the parties thereto and not having been terminated,
withdrawn, suspended, amended and/or revoked as of Completion. |
3.2 |
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Fulfilment of Conditions |
|
3.2.1 |
|
(i) The Parties agree to use their best endeavors to procure the conditions
precedent in Clause 3.1.1 are satisfied as soon as practicable after the date of this
Agreement and (ii) the Vendor and the Purchaser agree to use their best endeavors to
procure that the conditions precedent in Clauses 3.1.2 and 3.1.3, respectively, are
satisfied. The Parties shall provide such information as may be reasonably required
with a view to the fulfilment of the conditions precedent in Clause 3.1.1. |
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3.2.2 |
|
Without prejudice to Clause 3.2.1, the Vendor and the Purchaser agree that all
requests and enquiries from any Government Entity which relate to the satisfaction of
the conditions set out in Clause 3.1.1 shall be dealt with by the Vendor and the
Purchaser in consultation with each other and the Vendor and the Purchaser shall
promptly co-operate with and provide all necessary information and assistance
reasonably required by such Government Entity upon being requested to do so by the
other. |
|
3.2.3 |
|
Without prejudice to any other rights which they may have under this
Agreement: |
|
(i) |
|
the Vendor and the Purchaser may, by agreement in writing
signed by both the Vendor and the Purchaser, waive (to the extent thought fit
by the Vendor and the Purchaser) all or any of part of the conditions set out
in Clause 3.1.1; |
|
(ii) |
|
the Purchaser may waive (to the extent thought fit by the
Purchaser) all or any of the conditions set out in Clause 3.1.2 or any part of
them; and |
|
(iii) |
|
the Vendor may waive (to the extent thought fit by the Vendor)
all or any of part of the conditions set out in Clause 3.1.3. |
3.3 |
|
Effect of Non-Fulfilment of Conditions |
If any of the conditions in Clause 3.1.1 or Clause 3.1.2 is not satisfied by the Cut-off
Date or waived by the Purchaser, the Purchaser shall have the right to terminate this
Agreement (other than the Relevant Provisions) by notice in writing to the Vendor, in which
case, none of the Parties shall have any claim against the other for breach of this
Agreement or for costs, damages, compensation or otherwise, save for any claim by the
Purchaser against the Vendor for any breach of this Agreement by the Vendor prior to the
termination of this Agreement and up to the termination of this Agreement and provided that
the right to terminate this Agreement shall not be available to the Purchaser if the breach
by the Purchaser of this Agreement is a cause (whether direct or indirect) of the conditions
in Clause 3.1.1 or Clause 3.1.2 not being satisfied. If any of the conditions in Clause
3.1.1 or Clause 3.1.3 is not satisfied by the Cut-off Date or waived by the Vendor, the
Vendor shall have the right to terminate this Agreement (other than the Relevant Provisions)
by notice in writing to the Purchaser, in which case none of the Parties shall have any
claim against the other for breach of this Agreement or for costs, damages, compensation or
otherwise, save for any claim by the Vendor against the Purchaser for any liability for any
breach of this Agreement by the Purchaser prior to the termination of this Agreement and up
to the termination of this Agreement and provided that the right to terminate this Agreement
shall not be available to the Vendor if the breach by the Vendor of this Agreement is a
cause (whether direct or indirect) of the conditions in Clause 3.1.1 or Clause 3.1.3 not
being satisfied. In the event of such termination, the Parties obligations under the
Relevant Provisions as well as this Clause 3.3 shall survive the termination of this
Agreement.
4.1 |
|
Purchase Consideration |
The aggregate consideration for the purchase of the Sale Shares shall be the amount which
results from:
(a) taking (i) US$632,000,000 and (ii) adding the Net Completion Cash and (iii) (x) adding
the Net Working Capital Adjustment (if a positive amount) or (y) subtracting the Net Working
Capital Adjustment (if a negative amount, and in which case the absolute value shall be
subtracted);
multiplied by
(b) the Applicable Percentage,
such amount being the Purchase Consideration, and shall be payable in cash in U.S. Dollars
by the Purchaser to the Vendor.
4.2 |
|
Pre-Completion Estimates |
At least five (5) Business Days prior to the Completion Date, the Vendor shall deliver to
Purchaser (x) an unaudited estimated consolidated statement of net current assets and
Indebtedness of the Group Companies calculated in accordance with Schedule 5 and prepared in
the form set out in Part C (Illustrative Net Current Assets Statement) of Schedule 5 (the
Estimated Completion Net Current Assets Statement), together with (y) a certificate of the
Vendor setting forth the Estimated Completion Net Working Capital and Estimated Net
Completion Cash (and the Estimated Net Working Capital Adjustment and the Completion
Purchase Consideration resulting from the Estimated Completion Net Working Capital and
Estimated Net Completion Cash) in each case as of the Adjustment Calculation Time and
calculated in accordance with Schedule 5 and in the form set out in Part D (Illustrative
Pre-Completion Statement) of Schedule 5 (the Pre-Completion Statement). Vendor shall
provide Purchaser a reasonable opportunity to review and consult with the Company and Vendor
with respect to the preparation of the Estimated Completion Net Current Assets Statement and
the above estimates set forth in the Pre-Completion Statement.
4.3 |
|
Post-Completion Adjustments |
|
4.3.1 |
|
Within ninety (90) days following the Completion Date, the Purchaser shall
prepare and deliver to the Vendor (i) an unaudited consolidated statement of net
current assets and Indebtedness of the Group Companies calculated in accordance with
Schedule 5 and in the form set out in Part C (Illustrative Net Current Assets
Statement) of Schedule 5 (the Completion Net Current Assets Statement), and (ii) a
statement setting forth the Purchasers calculation of Completion Net Working Capital
and Net Completion Cash (and the Net Working Capital Adjustment and the Purchase
Consideration resulting from the Completion Net Working Capital and Net Completion
Cash), in each case as of the Adjustment Calculation Time and calculated in accordance
with Schedule 5 and in the form set out in Part E (Illustrative Completion Statement)
of Schedule 5 (the Completion Statement). |
|
4.3.2 |
|
During the thirty (30) days immediately following the Vendors receipt of the
Completion Net Current Assets Statement and the Completion Statement and any period of
dispute with respect thereto thereafter, Purchaser shall, and shall cause the Company
to (i) provide the Vendors accountant with reasonable access during normal business
hours to the books, records (including work papers, schedules, memoranda and other
documents), supporting data, facilities and employees of the Group Companies for
purposes of their review of the Completion Net Current Assets Statement and the
Completion Statement, and (ii) reasonably cooperate with the Vendor and the Vendors
accountant in connection with such review, including providing on a timely basis all
other information necessary or useful in connection with the review of the Completion
Net Current Assets Statement and the Completion Statement as is reasonably requested by
the Vendor or the Vendors accountant. |
|
4.3.3 |
|
The Completion Net Current Assets Statement, the Completion Statement and the
resulting Completion Net Working Capital and Net Completion Cash (and the Net Working
Capital Adjustment and the Purchase Consideration resulting from the Completion Net
Working Capital and Net Completion Cash) as set out therein shall become final and
binding upon the Parties thirty (30) days following the Vendors receipt thereof unless
the Vendor gives written notice of its disagreement (a Notice of Disagreement) to
Purchaser prior to such date; provided that the Completion Net Current Assets
Statement, the Completion Statement and the resulting Completion Net Working Capital
and Net Completion Cash (and the Net Working Capital Adjustment and the Purchase
Consideration resulting from the Completion Net Working Capital and Net Completion
Cash) as set out therein shall become final and binding upon the Parties upon the
Vendors delivery, prior to the expiration of the thirty (30) day period, of written
notice to Purchaser of its acceptance of the Completion Net Current Assets Statement
and the Completion Statement. Any Notice of Disagreement shall specify in reasonable
detail the nature and amount of any disagreement so asserted and any proposed
adjustments to the Completion Net Current Assets Statement and the Completion Statement
and the resulting Completion Net Working Capital and Net Completion Cash (and the Net
Working Capital Adjustment and the Purchase Consideration resulting from the Completion
Net Working Capital and Net Completion Cash) as set out therein. |
|
4.3.4 |
|
If a timely Notice of Disagreement is delivered by the Vendor, then the
Completion Net Current Assets Statement and the Completion Statement (as revised in
accordance with this Clause 4.3.4), and the resulting Completion Net Working Capital
and Net Completion Cash (and the Net Working Capital Adjustment and the Purchase
Consideration resulting from the Completion Net Working Capital and Net Completion
Cash) as set out therein, shall become final and binding upon the Parties on the
earlier of (i) the date any and all matters specified in the Notice of Disagreement are
finally resolved in writing by the Vendor and Purchaser and (ii) the date any and all
matters specified in the Notice of Disagreement not resolved by the Vendor and
Purchaser are finally resolved in writing by the Consultant. The Completion Net Current
Assets Statement and the Completion Statement shall be revised to the extent necessary
to reflect any resolution by the Vendor and Purchaser and any final resolution made by
the Consultant in accordance with this Clause 4.3.4. During the thirty (30) days
immediately following the delivery of a Notice of Disagreement or such longer period as
the Vendor and Purchaser may agree in writing, the Vendor and Purchaser shall seek in
good faith to resolve in writing any differences which they may have with respect to
any matter specified in the Notice of Disagreement. At the end of such thirty (30) day
period, the Vendor and Purchaser shall submit to FTI ConsultingSingapore Branch or, if
FTI ConsultingSingapore Branch cannot accept such appointment, or will not accept such
appointment on reasonable terms, or if the Parties otherwise agree, such other
reputable, independent, professional adviser with expertise in agreeing completion
accounts, or failing such agreement, such other reputable, independent, professional
adviser with expertise in agreeing completion accounts as may be nominated by the
President for the time being of the Institute of Singapore Chartered Accountants (whose
nomination shall be final and binding) (the Consultant) for review and resolution of
any and all matters (but only such matters) which remain in dispute and which were
included in the Notice of Disagreement. Purchaser and the Vendor shall instruct the
Consultant to, and the Consultant shall, make a final determination of the items
included in the Completion Net Current Assets Statement and the Completion Statement
(to the extent such amounts are in dispute) in accordance with the methodologies and
procedures set forth in this Agreement. Purchaser and the Vendor will cooperate with
the Consultant during the term of its engagement. Purchaser and the Vendor shall
instruct the Consultant not to, and the Consultant shall not, assign a value to any
item in dispute greater than the greatest value for such item assigned by Purchaser, on
the one hand, or the Vendor, on the other hand, or less than the smallest value for
such item assigned by Purchaser, on the one hand, or the Vendor, on the other hand.
The Completion Net Current Assets Statement, the Completion Statement and the resulting
Completion Net Working Capital and Net Completion Cash (and the Net Working Capital
Adjustment and the Purchase Consideration resulting from the Completion Net Working
Capital and Net Completion Cash) as set out therein shall become final and binding on
the Parties hereto on the date the Consultant delivers its final resolution in writing
to Purchaser and the Vendor (which final resolution shall be requested by the Parties
to be delivered not more than thirty (30) days following submission of such disputed
matters), and such resolution by the Consultant shall not be subject to court review or
otherwise appealable, absent Consultants manifest error. The fees, costs and expenses
of the Consultant incurred pursuant to this Clause 4.3.4 shall be borne by the Parties
based upon the degree to which the Consultant accepts the respective positions of the
Parties. For example, if it is the Purchasers position that the amount of Net Working
Capital is US$100, the Vendors position that the amount of Net Working Capital is
US$300 and the Consultants finding that the amount of Net Working Capital is US$150,
then the Vendor shall pay 75% (300-150 / 300-100) of the Consultants fees and expenses
and the Purchaser shall pay 25% (150-100 / 300-100) of the Consultants fees and
expenses. The Consultant shall act as expert and not as arbitrator. |
|
4.3.5 |
|
If (x) the Completion Purchase Consideration is less than (y) the Final
Purchase Consideration (such shortfall, the Shortfall Amount), then Purchaser shall,
within ten (10) days after the Completion Net Current Assets Statement and the
Completion Statement become final and binding on the Parties pursuant to Clause 4.3.3,
pay the Shortfall Amount in U.S. Dollars to the bank account of the Vendor, the details
of which shall be delivered in writing to the Purchaser no later than three (3)
Business Days prior to the date of such payment. |
|
4.3.6 |
|
If (x) the Completion Purchase Consideration is greater than (y) the Final
Purchase Consideration (such excess, Overpayment Amount), then Vendor shall, within
ten (10) days after the Completion Net Current Assets Statement and the Completion
Statement become final and binding on the Parties pursuant to Clause 4.3.3, pay the
Overpayment Amount in U.S. Dollars to the bank account of the Purchaser, the details of
which shall be delivered in writing to the Vendor no later than three (3) Business Days
prior to the date of such payment. |
Completion shall take place at the offices of the Company at 2:00 p.m. (Singapore time) (or
at such other time or place as the Vendor and the Purchaser may agree in writing) on the
Completion Date.
At Completion, the Vendor shall deliver or cause to be delivered to the Purchaser:
|
5.2.1 |
|
a certificate executed by a director or senior officer of Vendor, certifying
that the conditions precedent specified in Clause 3.1.2 (i-iii) have been fulfilled; |
|
5.2.2 |
|
duly executed share transfer forms in respect of the Sale Shares in favour of
the Purchaser (in a form reasonably agreed between the Parties), accompanied by the
relevant share certificates in respect of the Sale Shares; |
|
5.2.3 |
|
to the extent required by law or the constitutive documents of the Vendor, a
certified true copy of a resolution by the shareholders of the Vendor approving the
sale of the Sale Shares to the Purchaser on the terms and subject to the conditions set
out herein; |
|
5.2.4 |
|
a certified true copy of a resolution by the board of directors of the Vendor
approving the sale of the Sale Shares to the Purchaser, and the execution of the
Definitive Agreements to which it is a party on its terms and conditions and the
transactions contemplated therein; |
|
5.2.5 |
|
the written resignations (in a form reasonably agreed between the Parties) of
each of the directors of the Company appointed by the Vendor and the written
resignations (in a form reasonably agreed between the Parties) of such other persons
appointed by the Group Companies from the offices and directorships (and not
resignations of employment) of the Group Companies, in each case, as reasonably
directed by the Purchaser as soon as reasonably practicable following the date of this
Agreement and in any event not less than fifteen (15) Business Days prior to
Completion, to take effect from and on the Completion Date with acknowledgements signed
by each of them to the effect that he has no claim against the Company or the relevant
Group Company for compensation for loss of office, redundancy or unfair dismissal or
otherwise howsoever; |
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5.2.6 |
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the written resignations of the auditors of the Group Companies to take effect
from and on the date of appointment of the firm nominated by the Purchaser as the
auditors of the relevant Group Companies with acknowledgements signed by them to the
effect that they have no claim whatsoever against the Company or the relevant Group
Company; |
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5.2.7 |
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duly certified true copies of the board resolutions referred to in Clause 5.3; |
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5.2.8 |
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a deed executed by the Vendor and the Company confirming that there are no
monies due or owing by any Group Company to the Vendor, or by the Vendor to any Group
Company, and that the Vendor has no claim against any Group Company and if there are
any claims against any Group Company it shall release and disclaim all its rights to
such claims, which shall be in the form set out in Appendix A; |
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5.2.9 |
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a list of all bank accounts maintained by each of the Group Companies and bank
statements of each of the relevant Group Companies or written confirmations as to the
bank balances of each relevant Group Company on the last Business Day prior to
Completion; |
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5.2.10 |
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the certificate of incorporation and the memorandum and articles of association
and/or other constitutional documents, common seal (if any), cheque books, statutory
and minute books, financial, accounting and tax documents and all other books and
records of each Group Company (respectively duly up-to-date) and the share certificates
in respect of each of the Group Companies; |
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5.2.11 |
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a Distribution Agreement executed by each Owner Carrier (or Affiliate of an Owner
Carrier) listed on Schedule 10; |
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5.2.12 |
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an Owner Carrier Undertaking executed by each Owner Carrier; |
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5.2.13 |
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an AH Assignment Agreement in the form of Schedule 11 executed by Vendor and the
Company; and |
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5.2.14 |
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a new INFINI dividends agreement (the Infini Dividends Agreement) in the Agreed
Form between Vendor and the Company in the form of Schedule 12 (which includes
provisions terminating the existing INFINI economic benefit agreement). |
5.3 |
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Board Resolutions of the Company and the other Group Companies |
At Completion, the Vendor shall deliver or cause to be delivered to the Purchaser in (and
Purchaser shall exercise its voting and other rights over the shares in the Company held by
it, and procuring that its nominated representatives on the board of the Company exercise
their voting rights to accomplish the following):
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5.3.1 |
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a certified true copy of the board resolution of the Company approving and
authorising the execution of the Definitive Agreements to which it is a party on its
terms and conditions and the transactions contemplated therein and approving (a) the
transfer of the Sale Shares to the Purchaser; (b) the issue of the new share
certificates in respect of the Sale Shares in favour of the Purchaser; and (c) the
entering in the register of members of the Company, the name of the Purchaser, as the
case may be, as the holder of the Sale Shares; |
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5.3.2 |
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certified true copies of board resolutions of such Group Companies as the
Purchaser shall specify accepting the resignations referred to in Clause 5.2.5 and
appointing such persons as the Purchaser may nominate as directors and secretaries (in
each case, to the extent that the same is within the direct or indirect control of the
Company pursuant to applicable shareholders agreements or otherwise); and |
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5.3.3 |
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certified true copies of board resolutions of such Group Companies revoking
all existing authorities to bankers of such Group Companies in respect of the operation
of their respective bank accounts and giving authority in favour of such persons as the
Purchaser may nominate to operate such accounts (in each case, to the extent that the
same is within the control of the Company pursuant to applicable shareholders
agreements or otherwise). |
On the Completion Date, the Parties shall join in procuring that they together deliver or
cause to be delivered:
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5.4.1 |
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evidence that the conditions precedent specified in Clause 3.1.1 have been
fulfilled; |
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5.4.2 |
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the Stamp Duty Documents; |
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5.4.3 |
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a deed of termination of the Shareholders Agreement in the Agreed Form, duly
executed by the Parties to the Shareholders Agreement; |
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5.4.4 |
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evidence reasonably satisfactory to the Parties that the agreements listed on
Schedule 9 have been terminated as of the Completion; and |
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5.4.5 |
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an electronic copy (e.g., DVD) of the Data Room is obtained from Firmex and
made available to the Parties. |
5.5 |
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Purchasers Obligations |
On the Completion Date, against compliance by the Vendor with Clauses 5.2 and 5.3, the
Purchaser shall deliver or cause to be delivered to the Vendor:
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5.5.1 |
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a certificate executed by a director or senior officer of Purchaser,
certifying that the conditions precedent specified in Clause 3.1.3 have been fulfilled; |
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5.5.2 |
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a certified true copy of the board resolution of the Purchaser approving and
authorising the execution of this Agreement on its terms and conditions and the
transactions contemplated herein; |
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5.5.3 |
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an amount equal to (i) the Completion Purchase Consideration less (ii) the
Vendors share of the cost of obtaining the R&W Insurance in accordance with Clause
7.8.1, to be paid to the bank account of the Vendor, the details of which shall be
delivered in writing to the Purchaser no later than three (3) Business Days prior to
the Completion Date. The Vendor agrees and acknowledges that the payment of the
Completion Purchase Consideration by the Purchaser in accordance with this Clause 5.5.3
shall constitute a full and final discharge of the Purchasers obligation to pay such
Completion Purchase Consideration to the Vendor on Completion Date; |
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5.5.4 |
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a Distribution Agreement for each Owner Carrier listed on Schedule 10 (or an
Affiliate thereof listed on Schedule 10) executed by the Company; and |
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5.5.5 |
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consent of the Purchaser Group representative on the board of directors of the
Company to the entry by the Company into the Infini Dividends Agreement. |
If the documents required to be delivered to the Purchaser or the Vendor on Completion are
not forthcoming for any reason or if in any other respect the provisions of this Clause 5
are not fully complied with by the Vendor or the Purchaser, the Purchaser, in the event of
noncompliance by the Vendor, and the Vendor, in the event of non-compliance by the
Purchaser, shall be entitled (in addition to and without prejudice to all other rights and
remedies available to it, including the right to claim damages):
|
5.6.1 |
|
to elect to terminate this Agreement (other than the Relevant Provisions)
without liability on its part if such non-compliance is not remedied to the
satisfaction of the non-defaulting party within ten (10) Business Days of the
non-defaulting partys written notice to the other Party requesting for the
non-compliance to be remedied, provided that the right to terminate this Agreement
shall not be available to a Party if such party is then in breach of this Agreement; |
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5.6.2 |
|
to effect Completion so far as practicable having regard to the defaults which
have occurred without prejudice to its rights in respect thereof; or |
|
5.6.3 |
|
to fix a new date for Completion (not being more than twenty (20) Business
Days after the agreed date for Completion) in which case the foregoing provisions of
this Clause 5 shall apply to Completion as so deferred. |
6 |
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REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS |
6.1 |
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Incorporation of Schedule 8 |
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6.1.1 |
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The Vendor hereby represents, warrants and undertakes to the Purchaser (with
the intent that the provisions of this Clause shall, as they relate to the Title and
Authority Warranties, continue to have full force and effect notwithstanding
Completion) in the terms set out in Schedule 8 and that each of the statements set out
in Schedule 8 is now true and correct and not misleading in any respect as of the date
of this Agreement; provided, however, that with respect to Abacus International Lanka
(Pte) Ltd, the terms set out in Schedule 8 are qualified in each instance to the best
of the knowledge, information and belief of the Vendor. |
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6.1.2 |
|
The Parties undertake to each other and to the Group Companies and their
respective directors, officers, agents and employees to waive any rights, remedies
and/or claims which they may have in respect of any misrepresentation, inaccuracy or
omission in or from any information or advice supplied or given by any Group Company or
their respective directors, officers, agents or employees in connection with assisting
the Vendor in the giving of any Vendors Warranty or in preparing the Disclosure Letter
or the Data Room Documentation or the entry by the Purchaser into the R&W Insurance. |
6.2 |
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Purchaser Relied on Warranties |
The Vendor acknowledges that the Purchaser is entering into this Agreement in reliance on
the Vendors Warranties and the undertakings of the Vendor contained in this Agreement.
6.3 |
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Warranties to be Separate and Independent |
Each Vendors Warranty shall be separate and independent and shall not be limited by
reference to any other paragraphs of Schedule 8 or by anything in this Agreement.
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6.4 |
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Notification |
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6.4.1 |
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If after the signing of this Agreement: |
|
(i) |
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the Vendor shall become aware that any of the Vendors
Warranties was untrue, inaccurate and/or misleading as of the signing of this
Agreement; |
|
(ii) |
|
any event shall occur or matter shall arise of which the Vendor
becomes aware which results in any of the Vendors Warranties being untrue,
inaccurate and/or misleading in any material respect at Completion; or |
|
(iii) |
|
any event shall occur or matter shall arise of which the
Vendor becomes aware which results in any of the Vendors material obligations
or undertakings under this Agreement not being timely performed or becoming
impossible to perform, |
the Vendor shall notify the Purchaser fully thereof as soon as practicable and in
any event prior to Completion, setting out such details as are available, and the
Vendor shall make any investigation concerning the event or matter and take such
action to remedy such breach, at its own cost, as the Purchaser may reasonably
require.
6.5 Updating to Completion
The Vendor represents and warrants to and undertakes with the Purchaser that the Vendors
Warranties will be fulfilled down to, and will be true and correct in all respects and not
misleading at, Completion as if they had been entered into afresh at Completion and with
reference to the circumstances then existing at Completion.
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6.6 |
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Disclosure |
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6.6.1 |
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Without prejudice to Clause 6.6.2 below, the Vendors Warranties are qualified by: |
|
(i) |
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those matters disclosed fairly and with reasonable specificity
in the Disclosure Letter; and |
|
(ii) |
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any matter disclosed fairly and with reasonable specificity in
the Audited Accounts or expressly provided for under the terms of this
Agreement. |
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6.6.2 |
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For the purpose of this Clause Error! Reference source not found. disclosed
fairly and with reasonable specificity means disclosed in such a manner and in such
detail as to enable a reasonable purchaser (which holds an existing minority interest
in the Company) to make an informed assessment of the fact, matter or circumstance
concerned. |
6.7 Effect of Completion
Other than the Title and Authority Warranties, the Vendors Warranties shall be extinguished
by Completion. All other provisions of this Agreement, insofar as the same shall not have
been performed at Completion, shall not in any respect be extinguished or affected by
Completion or by any other event or matter whatsoever, except by a specific and duly
authorised written waiver or release by the Purchaser or the Vendor (as the case may be),
and shall continue in force and effect so far as they are capable of being performed or
observed.
6.8 |
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Authority and Capacity of the Purchaser |
The Purchaser hereby warrants and undertakes to and with the Vendor that:
|
6.8.1 |
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It is a company duly incorporated and validly existing under the laws of the
Cayman Islands. |
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6.8.2 |
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It has the legal right and full power and authority, and no further action,
approval or consent is required to be taken or obtained for it, to enter into and
perform this Agreement and any other Definitive Agreement to which it is a party, which
when executed will constitute valid and binding obligations on the Purchaser, in
accordance with their respective terms. |
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6.8.3 |
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The execution and delivery of, and the performance by the Purchaser of its
obligations under this Agreement and any other Definitive Agreement to which it is a
party will not and are not likely to: |
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(i) |
|
result in a breach of any applicable law or regulations or of
any provision of the memorandum or articles of association of the Purchaser; or |
|
(ii) |
|
result in a breach of, or give any third party a right to
terminate or modify, or result in the creation of any Encumbrance under, any
agreement, licence or other instrument or result in a breach of any order,
judgment or decree of any Government Entity to which the Purchaser is a party
or by which the Purchaser or any of its assets is bound. |
7.1 |
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No Changes in Status Quo in Group Companies until Completion |
During the period from the date of this Agreement to the Completion Date, the Vendor shall
procure and ensure that:
|
7.1.1 |
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each Group Company shall preserve and maintain in full force and effect its
corporate existence; |
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7.1.2 |
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each Group Company shall carry on its business as a going concern in the
ordinary course and in a manner consistent with its past practices during the period
from the date hereof until Completion and, without limiting the generality of the
foregoing, from the date hereof until Completion, use its reasonable endeavours to (i)
preserve and protect its business as presently operated by it and (ii) maintain its
rights and relationships with its customers, suppliers, employees and others having
business relationships with the Group Company in a manner consistent with past
practices; |
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7.1.3 |
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each Group Company shall use commercially reasonable efforts to maintain in
force all existing insurance policies (or equivalent replacement policies) for the
benefit of the Group Companies; |
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7.1.4 |
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without prejudice to Clauses 7.1.1 to 7.1.3, the Vendor shall procure that,
except with the prior written consent of the Purchaser (such consent not to be
unreasonably withheld or delayed), no Group Company shall: |
|
(i) |
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institute, compromise, settle, make any offer to settle and/or
pay any claim, legal action, proceeding, suit, litigation or arbitration other
than (A) the institution of claims involving the recovery of debts in the
ordinary course of business and (B) the settlement or compromise of any claim,
legal action, proceeding, suit, litigation or arbitration involving only the
payment of monetary damages of an amount less than US$250,000; |
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(ii) |
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take any decisions or actions in respect of any Group Company
listed in Sections 4.3(d) and 4.3(f) of the Shareholders Agreement that the
Company is prohibited from taking; |
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(iii) |
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create, allot, issue, repay, redeem or repurchase any share
capital, loan capital or other securities (or option to subscribe for or
acquire the same) of any Group Company; |
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(iv) |
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acquire or agree to acquire any shares or ownership interests
in, or merge or consolidate with, any company, limited liability partnership,
partnership, business trust or other venture, or enter into any demerger
transaction or participate in any other type of corporate reconstruction; |
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(v) |
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make any loans or grant any credit (other than given in the
ordinary course of trading and advances made to employees against expenses
incurred by them on its behalf); |
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(vi) |
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enter into any guarantee, indemnity or other agreement to
secure any obligation of a third party (other than a wholly-owned Group
Company) or create, grant or give any Encumbrance in respect of all or any part
of the undertaking, property or assets of any Group Company to secure the
obligations owing to any third party other than in the ordinary course of
business; |
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(vii) |
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engage or appoint any new officers, employees or consultants,
or dismiss any officers, employees or consultants, of senior managerial level
and above whose compensation is in excess of US$150,000 per annum save and
except for any dismissal for cause in accordance with the provisions of the
relevant employment agreement or consultancy agreement; |
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(viii) |
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make any material changes in the terms of employment or engagement of any of
its directors, officers, employees or consultants (including compensation,
pension entitlements and severance or retirement or other benefits) or provide
or agree to provide any gratuitous payment or benefit to any such directors,
officers, employees or consultants or any of his or her dependents; |
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(ix) |
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grant or enter into any license, franchise or other agreement
or arrangement concerning any part of its name, trading names, other
Intellectual Property rights or know-how other than in the ordinary course of
business; |
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(x) |
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vary or amend any accounting practices or policies of any Group
Company; |
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(xi) |
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without Supermajority Approval, make, revise, revoke, vary or
amend any claims, election or surrender relating to or affecting the Taxation
of any Group Company, otherwise than an election made in the ordinary course of
business; |
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(xii) |
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without Supermajority Approval, settle or compromise any
dispute with any Government Entity relating to or affecting the Taxation of any
Group Company; |
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(xiii) |
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make or agree to any modification to the incentives per booking paid to
Subscribers or that advances the scheduled payment or escalation thereof, in
each case, outside the ordinary course of business, whether directly or
indirectly through an NMC, or make any advance to an NMC for future
distribution or Subscriber usage; |
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(xiv) |
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enter into or modify the terms of any interest rate protection
agreement, foreign currency exchange agreement, or other similar hedging
arrangement outside the ordinary course of business; |
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(xv) |
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acquire or sell (by merger, consolidation, stock or asset
purchase or otherwise) any joint venture or partnership, or otherwise, any
entity or any business, division or material assets of any entity or execute,
enter into or agree upon any letter of intent, term sheet or similar
arrangement, whether binding or non-binding, to so acquire or sell any such
entity or any such joint venture, partnership, business, division or material
assets (without limiting the generality of the foregoing, and notwithstanding
any board or other approval obtained or given prior to the date of this
Agreement, no Group Company shall take any action with respect to its
investment in Abacus Distribution Systems Pakistan (Pvt.) Ltd, including with
respect to the term sheet dated 29 June 2009 related thereto, save where any
failure to take such action would result in a breach of law or otherwise amount
to a breach by that Group Company of any obligation pursuant to the
aforementioned term sheet dated 29 June 2009 in which case the taking of such
action shall be expressly permitted pursuant to this Clause 7.1.4 provided the
Purchaser is kept reasonably informed of all such action); |
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(xvi) |
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enter into or agree to any arrangement that by its terms
contains exclusivity, non-competition and/or non-solicitation restrictions
and/or that in any way restricts the ability of any Group Company and/or any of
the NMCs to compete in any geographical area or business; |
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(xvii) |
|
take any action with respect to its Minority Investments outside of the
ordinary course of business which could be reasonably expected to be
detrimental to the Purchaser, any Group Company and/or the Minority Investment
itself (save as contemplated by this Agreement and/or any of the Definitive
Agreements); |
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(xviii) |
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(a) amend or modify in any way any Definitive Agreement (including any
Definitive Agreement entered into on or after the date hereof that is to become
effective at Completion); or (b) take any action or enter into any agreement
or understanding that would affect or conflict with or in any way hinder any
Group Companys ability to perform or adversely impact its obligations under
any such Definitive Agreement; and |
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(xix) |
|
enter into an obligation, agreement and/or understanding,
conditionally or otherwise, to do or exercise an option in relation to,
anything prohibited by this Clause 7.1.4. |
7.2 |
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Access to Information; Cooperation |
|
7.2.1 |
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Subject to compliance by the Purchaser with its obligations under Clause 10
and without prejudice to the generality of Clause 7.1, during the period from the date
of this Agreement until the Completion Date, the Vendor shall procure that the Group
Companies provide the Purchaser (and its financial advisers, auditors, consultants and
solicitors) access to the employees of the Group Companies and such other information
and similar assistance as the Purchaser reasonably requests concerning (i) the
operations and condition of any Group Company, (ii) the transition to the ownership by
the Purchaser, (iii) compliance with regulatory filing requirements of the Purchaser
with the U.S. Securities and Exchange Commission, and (iv) subject to applicable law,
access on a confidential basis to unredacted Data Room Documentation, subject always to
the Purchaser complying with its confidentiality obligations relating to such material
(but without clean team restrictions). |
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7.2.2 |
|
To the extent the Purchaser Group elects to seek debt financing in connection
with the purchase of the Sale Shares, the Vendor shall provide, and shall cause the
Group Companies to provide, at the Purchasers expense, and shall use commercially
reasonable efforts to cause their respective advisers to provide, all cooperation
reasonably requested by the Purchaser in connection with such debt financing, including
(i) assisting the Purchaser and its financing sources in preparing any offering
document and materials for syndication and rating agency presentations, (ii) preparing
and furnishing business projections, financial statements, pro forma statements and
other financial data customarily used in marketing debt financings, (iii) making senior
management of the Company reasonably available for customary syndication presentations
and conference calls as well as lender or proposed financing source meetings and rating
agency presentations, (iv) cooperating with prospective lenders in performing their due
diligence, and (v) entering into customary agreements or other documents for the debt
financing; provided, that (A) the Group Companies shall not be required to pay any fees
or expenses in connection with the debt financing, (B) such requested cooperation does
not unreasonably interfere with the ongoing operations of the Group Companies; and (C)
all material obligations of any Group Company under any commitments or agreements
whatsoever relating to debt financing are fully conditional upon Completion taking
place. |
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7.2.3 |
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To the extent the Purchaser Group elects to pursue the acquisition of any NMC
which the Group Companies have an ownership interest in, the Vendor shall provide, and
shall cause the Group Companies to provide, and shall use commercially reasonable
efforts to cause their respective representatives to provide, all cooperation
reasonably requested by the Purchaser in connection with such NMC acquisitions subject
to any applicable laws or agreements which are binding on it in respect of an NMC. |
7.3 |
|
Restrictive Covenants |
|
7.3.1 |
|
In this Clause 7.3, the following terms shall have the following meanings,
respectively, namely: |
General Agreement means the general agreement dated 27 February 1998 by and among
the Vendor, the Purchaser, Sabre Technology Holland B.V., The Sabre Group, Inc and
the Company;
Prohibited Period means all of the following periods, subject to Completion taking
place:
|
(i) |
|
the period commencing on the day immediately following the
Completion Date and ending on the first anniversary of the Completion Date; |
|
(ii) |
|
the first anniversary of the Completion Date to the second
anniversary of the Completion Date; |
|
(iii) |
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the second anniversary of the Completion Date to the third
anniversary of the Completion Date; |
|
(iv) |
|
the third anniversary of the Completion Date to the fourth
anniversary of the Completion Date; and |
|
(v) |
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the fourth anniversary of the Completion Date to the fifth
anniversary of the Completion Date; |
Prohibited Territory means American Samoa, Australia, Bangladesh, Bhutan,
Brunei, Cambodia, China, Cook Islands, East Timor, Fiji, French Polynesia, Guam,
Hong Kong, India, Indonesia, Japan, Kiribati, Laos, Macau, Malaysia, Maldives,
Marshall Islands, Mongolia, Myanmar, Nauru, Nepal, New Caledonia, New Zealand, Niue,
Northern Mariana Islands, Pakistan, Palau, Papua New Guinea, Philippines, Samoa,
Singapore, Solomon Islands, South Korea, Sri Lanka, Taiwan, Thailand, Tokelau,
Tonga, Tuvalu, Vanuatu, Vietnam and Wallis and Futuna;
Relevant Capacity means, in relation to the Vendor, for its own account and/or for
that of any person, firm, company and/or other entity (other than the Company) and
whether through the medium of any company, corporation and/or any other entity
Controlled by it (for which purpose there shall be aggregated with its shareholding
or ability to exercise Control over the shares held or Controlled by any person
connected with or any company or other entity related to the Vendor) or as
principal, partner, director, consultant and/or agent;
Restricted Business means the operation of a GDS System and/or the carrying on of
a marketing and/or distribution business for a GDS System, but shall not include the
business conducted by Infini in Japan in the manner such business has been conducted
prior to the date of this Agreement;
|
7.3.2 |
|
The Vendor undertakes with the Purchaser and the Group Companies that Vendor
will not, and will procure and ensure that no entity Controlled by the Vendor will, in
any Relevant Capacity during the Prohibited Period: |
|
(i) |
|
be directly or indirectly engaged in the
Restricted Business in the Prohibited Territory; |
|
(ii) |
|
directly or indirectly carry on and/or have an
ownership interest in, and/or have an economic interest which is
substantially equivalent to ownership in, for its own account either
alone or in partnership and/or be concerned in any Relevant Capacity in,
any entity which is engaged in the Restricted Business in the Prohibited
Territory, save for the holding of or trading in less than five per cent
of the outstanding share capital of a corporation the shares of which
are listed on any stock exchange and/or any existing interests held as
at the date of this Agreement in compliance with the General Agreement; |
|
(iii) |
|
make any public statement that (1) Subscribers
in the Prohibited Territory should use a GDS other than a GDS
distributed by the Company and/or the Purchaser Group (Alternate GDS);
(2) an Alternate GDS is Owner Carriers preferred GDS for GDS Services
or a statement of similar meaning or (3) disparages in a material
respect the GDS Services offered by any Group Company and/or by any GDS
distributed by the Company; and/or |
|
(iv) |
|
solicit (1) an existing Subscriber of any GDS
distributed by the Company and/or any of its Affiliates to discontinue
or substantially reduce its use of GDS Services through such GDS and
instead use the GDS Services of an Alternate GDS, and/or (2) any
Subscriber of any Alternate GDS to not select and/or use the GDS
Services distributed by the Company or any of its Affiliates. |
|
7.3.3 |
|
Vendor undertakes with the Purchaser that it will not, and will procure and
ensure that no entity Controlled by the Vendor will, in any Relevant Capacity during
the period commencing on (i) the day immediately following the Completion Date and
ending on the first anniversary of the Completion Date and (ii) the first anniversary
of the Completion Date and ending on the second anniversary of the Completion Date:
directly or indirectly induce and/or seek to induce any person who is, during the
period stated in (i) and (ii) above, an employee or consultant of any Group Company to
become employed, whether as employee, consultant or otherwise, by the Vendor or any
entity Controlled by the Vendor, whether or not such employee or consultant would
thereby commit a breach of his contract with any Group Company. The placing of an
advertisement of a post available to a member of the public generally and the
recruitment of a person through an employment agency shall not constitute a breach of
this Clause 7.3.3 provided that none of Vendor and/or any entity Controlled by the
Vendor encourage or advise such agency to approach any such employee. The employment
or engagement by Vendor, and/or any entity Controlled by the Vendor, of any person who
prior to Completion is/was a secondee or representative of that person in a Group
Company, details of which are contained in Schedule 7.3.3, shall not constitute a
breach of this Clause 7.3.3. |
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7.3.4 |
|
While the restrictions set out in Clauses 7.3.2 and 7.3.3 are considered by
the Parties to be reasonable in all the circumstances and no greater than is reasonable
and necessary for the protection of the Group Companies and the Purchaser, it is agreed
that if any one or more of such restrictions shall either taken by itself or themselves
together be adjudged to go beyond what is reasonable in all the circumstances for the
protection of any Group Companys or the Purchasers legitimate interest but would be
adjudged reasonable if any particular restriction or restrictions were deleted or if
any part or parts of the wording thereof were deleted, restricted or limited in any
particular manner then the said restrictions shall apply with such deletions,
restrictions and/or limitations, as the case may be. |
|
7.3.5 |
|
The Purchaser agrees that nothing in this Clause 7.3 shall prohibit or
restrict the Vendor and/or any entity Controlled by the Vendor from having any direct
or indirect ownership interest in INFINI which is held by Vendor and/or any entity
Controlled by the Vendor at the date of this Agreement and carrying on the business of
INFINI. |
|
7.3.6 |
|
The restrictions imposed in this Clause 7.3 are separate, distinct and
several, so that the unenforceability of any restriction does not affect the
enforceability of the other restrictions. |
|
7.3.7 |
|
Without affecting any other rights or remedies that the Company may have, the
Vendor acknowledges that the Company and/or the Purchaser may be irreparably harmed by
any breach on the part of the Vendor of the terms in this Clause 7.3 and that damages
alone may not necessarily be an adequate remedy. Accordingly, the Company and the
Purchaser will each be entitled to the remedies of injunction, specific performance and
other equitable relief, or any combination of these remedies, for any threatened or
actual breach of its terms, and no proof of special damages will be necessary to
enforce this Clause 7.3. |
7.4 |
|
Undertakings relating to Regulatory Approvals |
|
7.4.1 |
|
The Parties agree with and undertake to one another that no notifications,
filings, submissions or any other communication to any Competition Authority or other
Government Entity in relation to or regarding any aspect of the transactions
contemplated under the Definitive Agreements shall be made without the prior written
consent of the Vendor and the Purchaser. However, in the event of a disagreement,
Purchaser will be able to determine the appropriate response or the form of relevant
notification, filing, submission or any other communication. |
|
7.4.2 |
|
In the event that any Competition Authority or other Government Entity
nevertheless requests any details, clarifications, information or documents from the
Purchaser, the Vendor and the Purchaser shall cooperate and use reasonable endeavours
to ensure that all relevant details, information and documents required by such
Competition Authority or other Government Entity be given to such Competition Authority
or other Government Entity within the time frames prescribed by such Competition
Authority or other Government Entity, the Vendor and the Purchaser agree that any
response to such Competition Authority or other Government Entity shall be made by the
Vendor and the Purchaser in consultation with one another. |
The Purchaser and the Vendor shall each use their best endeavours to procure the entry by
the Company into the Infini Dividends Agreement and the entry by Vendor into the Infini
Dividends Agreement prior to Completion.
Vendor hereby agrees that upon Completion, Purchaser and the Group Companies shall have the
sole right to the use of the name Abacus and any derivatives thereof, and any service
marks, trademarks, trade names, d/b/a names, fictitious names, identifying symbols, logos,
emblems and/or signs containing and/or comprising the foregoing, or otherwise used in the
Business (as conducted by the Group Companies at any time within the thirty-six (36) months
prior to Completion), including any name or mark confusingly similar thereto (collectively,
the Company Marks), and Vendor shall not, and shall not permit any member of the Vendor
Group to, use such Company Marks or any variation or simulation thereof. In furtherance
thereof, at Completion, or as soon as legally practicable thereafter (but in any event
within thirty (30) days after Completion), Vendor shall, and shall cause each member of the
Vendor Group to, remove any Company Mark from its legal name by appropriate legal procedures
in the jurisdiction of its organization and in each jurisdiction where such entity has
registered to do business.
|
7.7.1 |
|
Subject to Clause 7.7.2 but notwithstanding the provisions of the Shareholders
Agreement, the Vendor and the Purchaser shall procure that, to the fullest extent
possible whilst enabling the Company to retain sufficient cash to meet the Group
Companies normal and foreseeable working capital and capital expenditure requirements,
the Companys profits available for lawful distribution shall be distributed to the
Vendor and the Purchaser (as existing shareholders of the Company as at the date of
this Agreement) by way of special dividend pursuant to article 116 of the articles of
association of the Company prior to Completion. |
|
7.7.2 |
|
Unless otherwise agreed, the Vendor and the Purchaser shall procure that the
aggregate special dividend referred to in Clause 7.7.1 shall: |
|
(a) |
|
in no event exceed the amount of distributable reserves of the
Company under the Companies Act at the date of the declaration; and |
|
(b) |
|
be declared and remitted as close as reasonably practicable
prior to Completion and after satisfaction of the conditions precedent set out
in Clause 3. |
7.8 |
|
Representations and Warranties Insurance |
|
7.8.1 |
|
As at the date of this Agreement the Purchaser has obtained
the representations and warranties insurance policy described in Schedule 15 (the R&W
Insurance) and the Vendor and the Purchaser shall equally share the cost of obtaining
the R&W Insurance. |
|
7.8.2 |
|
Vendor shall, and shall procure that the Group Companies, provide any
assistance reasonably requested by Purchaser in connection with obtaining the R&W
Insurance, including providing any and all information reasonably requested by the
insurance underwriters in order to underwrite the R&W Insurance (provided that this
obligation does not extend to providing any representations, warranties or undertakings
to the underwriters in respect of which the Vendor and / or any of the Owner Carriers
would have any potential liability). |
|
7.8.3 |
|
Regardless of whether the Purchaser has a valid claim under the R&W Insurance,
then, notwithstanding any other provision of this Agreement and the Definitive
Agreements, the Purchaser agrees that: |
|
(a) |
|
the Vendor shall have no liability in respect of; and |
|
(b) |
|
none of the Purchaser Group will be entitled to make, and must
not make, and hereby irrevocably waives any right it may have to make, and must
procure that none of the Purchaser Group makes, and irrevocably waives any
right it may have to make, |
any Relevant Claim against the Vendor in respect of or arising out of a breach of
any Vendors Warranty (other than a Title and Authority Warranty, in which case the
Vendors liability shall be as provided in Clause 8.1.1) in this Agreement, save in
respect of a Relevant Claim against the Vendor relating directly to the fraud of the
Vendor.
7.9 |
|
Retention of Amounts by Vendor |
On and following the Completion and until the Settlement Date, Vendor shall not (a) declare
and/or pay any dividend and/or make any distribution (in cash or in kind) to its
shareholders or (b) make any payment or incur any liability or obligation to a person
(including to any Owner Carrier or Affiliate of an Owner Carrier) that would, in either
case, cause Vendor to hold less than US$35,000,000 in Net Vendor Cash. Net Vendor Cash
means (a) cash or cash equivalents of the Vendor (excluding pledged cash, escrowed cash or
other restricted cash), minus (b) Indebtedness of Vendor, minus (c) current
liabilities of Vendor, but for the avoidance of doubt, excluding any Indebtedness or current
liabilities in respect of the Vendors obligations under Clause 4.3.6.
7.10 |
|
Existence of Vendor; No Reorganization |
On and following the Completion and until the expiration of the Prohibited Period, Vendor
(a) shall preserve and maintain in full force and effect its corporate existence, (b) shall
not amend or alter its certificate of incorporation and/or the memorandum and articles of
association and/or other constitutional or organizational documents to the extent such
amendment or alteration would have a material adverse effect on its ability to timely
perform its obligations under this Agreement, (c) shall not merge or consolidate with any
company, limited liability partnership, partnership, business trust or other venture, or
enter into any demerger transaction or participate in any other type of corporate
reconstruction or reorganization, and (d) shall not make any order, present any petition,
pass any resolution or convene any meeting for the winding-up, judicial management or
dissolution of Vendor, except as required by law.
7.11 Third Party Beneficiary Status
Effective as of the Completion, Vendor agrees that it shall no longer be a third party
beneficiary to (a) the agreements and contracts listed on Schedule 7.11 or (b) any other
agreement or contract to which the Company, any Group Company, Purchaser and/or any
Purchaser Affiliate is a party if, in the case of this Sub-Clause 7.11(b), were the Vendor
to remain a third party beneficiary, this would be contrary to intention of the transactions
contemplated by this Agreement, other than with respect to any indemnification and/or
contribution provisions contained therein.
8 |
|
INDEMNITY AND CLAIMS AGAINST THE VENDOR |
In consideration of the Purchaser entering into this Agreement on the basis of the Vendors
Warranties and the undertakings of the Vendor contained in this Agreement and to the extent
that the same will be fulfilled down to, and will be true and correct in all respects and
not misleading at, Completion as if they had been entered into afresh at Completion with
reference to the facts and circumstances existing on such day, the Vendor hereby
unconditionally and irrevocably undertakes that it will indemnify and keep the Purchaser and
any other Purchaser Group member harmless from and against all and any Losses which the
Purchaser and the relevant member of the Purchaser Group suffers or incurs as a result of or
in relation to:
|
8.1.1 |
|
any breach of any of the Title and Authority Warranties; and |
|
8.1.2 |
|
any breach of any obligation or undertaking by the Vendor in the Definitive
Agreements. |
8.2 |
|
Relevant Claims Procedures. |
The provisions of Schedule 13 (Relevant Claims Procedures) shall apply in relation to each
Relevant Claim, including any claim for indemnification under Clause 8.1 (each, an
Indemnification Claim).
Save in respect of a Relevant Claim against the Vendor relating directly to the fraud of the
Vendor, the Vendors liability for all Relevant Claims shall be limited so that the maximum
aggregate liability in respect of all Relevant Claims (including any Indemnification Claims)
shall be equal to the Final Purchase Consideration.
8.4 |
|
Withholding and Deductions |
All the sums payable by any party (the Payor) pursuant to this Clause 8 shall be paid free
and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as
may be required by law. If at any time any applicable law, regulation or regulatory
requirement requires the Payor to make any deduction or withholding from any payment made in
respect of any amount due from the Payor hereunder, the amount so due shall be increased to
the extent necessary to ensure that, after the making of such deduction or withholding, the
recipient receives, on the due date for such payment, a net sum equal to the sum which it
would have received had no such deduction or withholding been required to be made.
Each of the indemnities in this Agreement constitutes a separate and independent obligation
from the other obligations in this Agreement, shall give rise to a separate and independent
cause of action and shall apply irrespective of any indulgence granted by the Purchaser to
the Vendor.
The satisfaction of any Relevant Claim by the Vendor shall be deemed to constitute a
reduction in the consideration payable by the Purchaser for the sale of the Sale Shares.
No announcement or circular in connection with the existence or the subject matter of this
Agreement shall be made or issued by or on behalf of any Party (or their respective
Affiliates) without the prior written approval of the Purchaser (in the case of an
announcement or circular made or issued by or on behalf of the Vendor, any member of the
Vendor Group or any member of any Owner Carriers OC Group) or the Vendor (in the case of an
announcement or circular made or issued by or on behalf of the Purchaser or any member of
the Purchaser Group). This shall not apply to:
|
(i) |
|
any announcement or circular required by law or any regulatory
body or the rules of any recognised stock exchange on which the shares of any
Party (or its Affiliates) are regulated or listed but the Party (or its
Affiliates) with an obligation to make an announcement or issue a circular
shall consult (through such Party in the case of a regulated or listed
Affiliate) with the relevant Parties referred to above insofar as is reasonably
practicable before complying with such an obligation; |
|
(ii) |
|
any announcement or circular made or sent by the Purchaser or
any member of the Purchaser Group after Completion to an existing or potential
customer, client, supplier, banker, investor, service provider or other person
having a business relationship with any Group Company or any member of the
Purchaser Group informing such person of the Purchasers purchase of the Sale
Shares so long as all disclosures relating to the identity of the Vendor and
the terms of the acquisition of the Sale Shares are limited to accurate factual
statements; or |
|
(iii) |
|
any announcement or circular that is consistent with
information previously disclosed in accordance with the requirements of this
Clause 9. |
|
|
|
|
|
|
|
|
|
|
10 |
|
|
CONFIDENTIALITY |
|
|
|
|
|
10.1 |
|
|
Confidential Information to be kept confidential |
|
|
|
|
|
10.1.1 |
|
|
Subject to Clauses 9, 10.1.2 and 10.2: |
|
(i) |
|
each of the Parties shall treat as strictly confidential and
not disclose and/or use any information received or obtained as a result of
entering into this Agreement (or any agreement entered into pursuant to this
Agreement including the other Definitive Agreements) which relates to: |
|
(a) |
|
the existence and the provisions of this
Agreement and of any agreement entered into pursuant to this Agreement
(including the other Definitive Agreements); or |
|
(b) |
|
the negotiations relating to this Agreement (and
any such other agreements including the other Definitive Agreements); |
|
(ii) |
|
the Vendor shall, subject to and following Completion, treat as
strictly confidential and not disclose or use any information relating to any
Group Company following Completion (including Confidential Business
Information) and any other information relating to the business, financial or
other affairs (including future plans and targets) of the Purchaser Group; and |
|
(iii) |
|
prior to Completion, the Purchaser shall treat as strictly
confidential and not disclose and/or use any information (including
Confidential Business Information) relating to the business, financial or other
affairs (including future plans and targets) of the members of the Vendor Group
including the Group Companies, except to the extent the use and/or disclosure
of such information is permitted under the terms of other agreements or
arrangements between the applicable member of the Vendor Group and Purchaser. |
|
10.1.2 |
|
Clause 10.1.1 shall not prohibit disclosure or use of any information if and to the
extent: |
|
(i) |
|
the disclosure and/or use is required by law, any regulatory
body and/or any recognised stock exchange on which the shares of the Vendor or
any member of the Vendor Group or the Purchaser or any member of the Purchaser
Group are regulated and listed; |
|
(ii) |
|
the disclosure and/or use is required to vest the full benefit
of this Agreement in the Parties; |
|
(iii) |
|
the disclosure and/or use is required for the purpose of any
judicial proceedings arising out of this Agreement or any other agreement
entered into under or pursuant to this Agreement or the disclosure is made to a
Tax Authority in connection with the Taxation affairs of the disclosing Party; |
|
(iv) |
|
the disclosure is made to directors, officers, employees,
professional advisers and/or other representatives (Representatives) of the
Vendor and/or any member of the Vendor Group and/or the Purchaser and/or any
member of the Purchaser Group on terms that such Representatives undertake to
comply with the provisions of Clause 10.1.1 in respect of such information as
if they were a party to this Agreement; |
|
(v) |
|
the information is or becomes publicly available (other than by
breach of this Clause 10 and/or the other terms of any of the Definitive
Agreements); |
|
|
|
(vi)
(vii)
(viii)
|
|
the other Party has given prior written approval to the disclosure or use;
the disclosure is permitted under Clause 9; and/or
the information is independently developed, |
provided that prior to disclosure or use of any information pursuant to Clause
10.1.2 (i), (ii) or (iii) the Party concerned shall promptly notify the other Party
of such requirement with a view to providing the other Party with the opportunity to
contest such disclosure and/or use or otherwise to agree to the timing and content /
manner of such disclosure and/or use.
10.2 |
|
Survival of Obligations |
The obligations contained in this Clause 10 shall continue to apply for a period of six
years following Completion except and until any Confidential Information falls within the
exceptions under Clause 10.1.2.
11.1 |
|
Notices to be in Writing |
All notices, demands or other communications required or permitted to be given or made
hereunder shall be in writing and delivered personally or sent by reputable overnight
courier or e-mail transmission addressed to the intended recipient thereof at its applicable
address, and marked for the attention of such person (if any) designated by it to the other
Parties for the purposes of this Agreement or to such other address as a Party may from time
to time duly notify the other in writing.
11.2 |
|
Contact Addresses and Numbers |
The addresses of the Parties for the purpose of this Agreement are specified below:
PURCHASER:
Alan Powell
Sabre GLBL Inc.
3150 Sabre Dr.
Southlake, Texas, USA 76092
alan.powell@sabre.com
and
Rachel Gonzalez
Sabre GLBL Inc.
3150 Sabre Dr.
Southlake, Texas, USA 76092
rachel.gonzalez@sabre.com
With a copy to, which shall not constitute notice:
Darren C. Hauck
Alston & Bird LLP
2828 North Harwood Street
18th Floor
Dallas, Texas, USA 75201
darren.hauck@alston.com
VENDOR:
The Company Secretary
Abacus International Holdings Ltd
c/- Trident Trust Company (Cayman) Limited
4th floor, One Capital Place,
P.O. Box 847, Grand Cayman
Cayman Islands
With a copy to, which shall not constitute notice:
Chairman of Abacus International Holdings Ltd
c/- Cathay Pacific Airways Limited
Sales & Distribution Department
9/F, North Tower
Cathay Pacific City
8 Scenic Road, Lantau
Hong Kong
FAO: Alex McGowan
alexmcgowan@cathaypacific.com
Jon Perry
Norton Rose Fulbright Hong Kong
38/F, Jardine House
1 Connaught Place, Central
Hong Kong
jon.perry@nortonrosefulbright.com
And, in respect of notices dated prior to Completion only:
The Company Secretary
Abacus International Holdings Ltd
c/- Abacus International Pte Ltd
3 Tampines Central 1, #08-01
Abacus Plaza
Singapore 529540
PeterGammon@abacus.com.sg
11.3 |
|
Deemed Delivery Date |
Any such notice, demand or communication shall be deemed to have been duly served (if
delivered personally or given or made by e-mail) immediately or (if given or made by
courier) five (5) Business Days after posting and in proving the same it shall be sufficient
to show that personal delivery was made or that the envelope containing such notice was
properly addressed, and posted or that the e-mail transmission was properly addressed and
dispatched.
|
12.1.1 |
|
The Definitive Agreements (together with any documents referred to therein or
executed contemporaneously by the Parties in connection therewith) embody all the terms
and conditions agreed upon between the Parties as to the subject matter of this
Agreement, as at the date of this Agreement to the exclusion of any terms implied by
law and supersedes and cancels in all respects all previous agreements and
undertakings, if any, between the Parties with respect to the subject matter hereof,
whether such be written or oral. It is agreed that: |
|
(i) |
|
no Party has entered into this Agreement in reliance upon, nor
been induced to enter into this Agreement on the basis of, any representation,
warranty, indemnity, undertaking or other statements whatsoever of any other
Party (or any of its representatives or professional advisers) which is not
expressly set out in the Definitive Agreements (or the documents referred to
therein or executed contemporaneously by the Parties in connection therewith);
and |
|
(ii) |
|
save as expressly set out in this Agreement, no Party (nor its
representatives and professional advisers) shall owe any duty of care to any
other Party (or any of its representatives or professional advisers). |
|
12.1.2 |
|
Save for any additional right or remedy expressly set out in this Agreement, so far
as is permitted by law and except in the case of fraud, each of the Parties agrees and
acknowledges that its only right and remedy in relation to any representation, warranty
or undertaking made or given in connection with this Agreement shall be for the breach
of the terms of this Agreement to the exclusion of all other rights and remedies
(including those in tort or arising under statute) provided that this Clause 12.1.2
shall not limit a Partys right to seek equitable remedies such as injunctive relief
and specific performance. |
|
12.1.3 |
|
In Clauses 12.1.1 to 12.1.2, this Agreement includes the Disclosure Letter and all
documents entered into pursuant to this Agreement. |
Any liability to any Party under this Agreement may in whole or in part be released,
compounded or compromised, or time or indulgence given, by it in its absolute discretion as
regards the other Party under such liability without in any way prejudicing or affecting its
rights against such other Party.
12.3 |
|
Indulgence, Waiver, etc. |
Save as expressly provided in this Agreement, no failure on the part of any Party to
exercise and no delay on the part of such Party in exercising any right hereunder will
operate as a release or waiver thereof, nor will any single or partial exercise of any right
under this Agreement preclude any other or further exercise of it or any other right or
remedy provided for under Clause 12.1.2.
12.4 |
|
Successors and Assigns |
|
12.4.1 |
|
This Agreement shall be binding on and shall inure for the benefit of each of the
Parties permitted successors and assigns. Any reference in this Agreement to any of
the Parties shall be construed accordingly. |
|
12.4.2 |
|
Subject to Clause 12.4.3, none of the Parties may without the prior written consent
of the other Party, assign, grant any security interest over, hold on trust or
otherwise transfer the benefit of the whole or any part of this Agreement. |
|
12.4.3 |
|
Notwithstanding Clause 12.4.2, the Purchaser may, without the consent of the Vendor,
assign to any member of the Purchaser Group, this Agreement or the benefit of all or
any of the other Parties obligations under this Agreement provided that: |
|
(i) |
|
if the assignee ceases to be a member of the Purchaser Group,
this Agreement or the benefit of those obligations assigned shall be reassigned
to the Purchaser; |
|
(ii) |
|
the Purchaser shall not be relieved of any of its liabilities
or obligations hereunder; and |
|
(iii) |
|
the assignee shall not be entitled to receive under this
Clause 12.4.3 any amount greater than that to which the Purchaser would have
been entitled. |
The Vendor agrees that the benefit of any provision of this Agreement may, subject
to and following Completion, be enforced by any such permitted assignee.
Any time, date or period mentioned in any provision of this Agreement may be extended by
mutual agreement between the Parties in accordance with this Agreement or by agreement in
writing but as regards any time, date or period originally fixed or any time, date or period
so extended as aforesaid time shall be of the essence.
|
12.6.1 |
|
Each of the Parties shall, and shall use reasonable endeavours to procure that any
necessary third party shall, from time to time following Completion execute such
documents and perform such acts (including, in the case of the Vendor, exercising its
voting rights over the Sale Shares and, in the case of the Purchaser, exercising its
voting and other rights over the shares in the Company held by it, and procuring that
its nominated representatives on the board of the Company exercise their voting rights)
and do such things as the other Parties may reasonably require to transfer the Sale
Shares to the Purchaser and to give each Party the full benefit of this Agreement and
the other Definitive Agreements and to evidence, if necessary, the Companys ownership
of the assets transferred to the Company pursuant to the Reconstruction Agreement. |
|
12.6.2 |
|
The Parties agree that, subject to the undertakings expressly set forth in this
Agreement, any requirement under the Shareholders Agreement that relates to the
approval of the transfer of the Sale Shares shall be deemed satisfied by the entry into
this Agreement. |
Each of the Parties confirms it has received independent legal advice relating to all the
matters provided for in this Agreement (including Clause 7.3 (Restrictive Covenants) and
Clause 12.1 (Entire Agreement)) and agrees that the provisions of this Agreement and the
other Definitive Agreements are fair and reasonable.
Each Party shall bear its own legal, professional and other costs and expenses incurred by
it in connection with the negotiation, preparation or completion of this Agreement, and the
sale and purchase of the Sale Shares. The Purchaser shall bear all stamp duties payable in
connection with the transfer of the Sale Shares.
12.9 |
|
Severability of Provisions |
If any provision of this Agreement is held to be illegal, invalid and/or unenforceable in
whole or in part in any jurisdiction, this Agreement shall, as to such jurisdiction,
continue to be valid as to its other provisions and the remainder of the affected provision;
and the legality, validity and enforceability of such provision in any other jurisdiction
shall be unaffected.
This Agreement may be signed in any number of counterparts and by the Parties on separate
counterparts, each of which when so executed shall be an original, but all counterparts
shall together constitute one and the same document. Each counterpart may be signed by a
Party or Parties and transmitted by electronic transmission of a .pdf or .tif file which
shall be valid and effectual as if executed as an original.
12.11 |
|
Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore |
|
12.11.1 |
|
Save for Clause 6.1.2 which shall be enforceable against the Parties by the
directors, officers, agents and employees of the Group Companies who have assisted the
Vendor in the giving of any Vendors Warranty or in preparing the Disclosure Letter or
the Data Room Documentation or the entry by the Purchaser into the R&W Insurance (the
Transaction Team) under the Contracts (Rights of Third Parties) Act, Chapter 53B of
Singapore, any person who is not a party to this Agreement shall have no right under
the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any
term of, or enjoy any benefit under, this Agreement. |
|
12.11.2 |
|
The Parties may, without the consent of the Transaction Team, rescind or otherwise
terminate this Agreement or vary any of its terms. |
12.12 |
|
Variation and amendments |
No purported variation of this Agreement shall be effective unless made in writing and
signed by all the Parties (and the approval of the Company or the relevant Group Companies
shall not be required in respect of any such amendment, modification, waiver or
termination).
12.13 |
|
Governing Law and Submission to Jurisdiction |
|
12.13.1 |
|
This Agreement shall be governed by, and construed in accordance with, the laws of
Singapore. |
|
12.13.2 |
|
Each Party hereto irrevocably submits to the non-exclusive jurisdiction of the
courts of Singapore over any suit, action or proceeding (Proceedings) arising out of
or relating to this Agreement and (unless otherwise expressly set forth in any other
Definitive Agreement) each other Definitive Agreement including any petition for
equitable relief, for an order to compel arbitration, or any motion or application for
an order vacating, modifying, correcting or confirming an arbitration award, and
irrevocably waives, to the fullest extent permitted by law, any objection to the laying
of venue of any such Proceeding in any such court or any claim that such Proceeding has
been brought in an inconvenient forum. Each Party hereto consents to process being
served in any such Proceeding by serving a copy thereof upon its agent for service of
process referred to below, provided that service shall also be mailed to each such
Party. Each Party hereto agrees that such service shall be deemed in every respect
effective service or process in any such Proceeding and shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon and personal
delivery to such Party. Each Party hereto shall appoint an agent for service of process
in Singapore and shall maintain such agent at all times unless it shall designate a
successor agent or agents. |
12.14 |
|
Representation of Vendor |
The Vendor and each Owner Carrier shall have the right, at its election, to retain
Rothschild, Travel Technology Research Ltd., Covington & Burling LLP or Norton Rose
Fulbright to represent it in any matter, and the Purchaser, for itself and for its
successors and assigns, hereby irrevocably waives, and shall cause the Company and the other
Group Companies, if any, to waive, any objection and consent to any such representation in
any such matter.
[Signatures appear on the following page]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their
respective duly authorized officers as of the date first above written.
VENDOR:
ABACUS INTERNATIONAL
HOLDINGS LTD
By: /s/ Alex McGowan
Name: Alex McGowan
Title: Director
PURCHASER:
SABRE TECHNOLOGY
ENTERPRISES II LTD.
By: /s/ Gregory T. Webb
Name: Gregory T. Webb
Title: Authorized Signatory
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Exhibit 99.1
Sabre to acquire Abacus International
Leading GDS in Asia Pacific will enable accelerated global growth for Sabre
SOUTHLAKE, Texas, and SINGAPORE, May 14, 2015 Sabre Corporation (NASDAQ: SABR) announced
today that it has entered into a definitive agreement to acquire Abacus International, the leading
global distribution system (GDS) in the Asia-Pacific region. Abacus is currently owned by a
consortium of 11 Asian airlines along with Sabre, which has a 35% stake in the company.
Sabre will purchase the remaining portion of Abacus for net cash consideration of $411 million.
The Asia-Pacific travel market is the largest and fastest growing in the world, said Tom Klein,
Sabre President and CEO. Acquiring Abacus immediately combines the global capabilities of Sabre
with the deep local market expertise of the leading Asia-Pacific GDS. This powerful combination
will give customers even more innovation and service options, while allowing Sabre to accelerate
growth globally in a very capital efficient way and to gain regional synergies in all three of
our businesses serving travel agents, airlines and hospitality companies.
Abacus International President and CEO, Robert Bailey added, With our extended network in Asia
Pacific, Abacus has built a trusted brand of unique significance and scale. We now have the
opportunity to take the business forward even faster, broadening the scope within the Sabre family
and with the support of our shareholder carriers. This is great news for the industry in Asia
Pacific, and we look forward to passing the benefits of integration to all sectors of this regions
diverse travel community.
Abacus serves more than 100,000 travel agents across the Asia-Pacific regions 59 markets and has
both global and uniquely local relationships with airlines and hotels, including the leading
portfolio of low-cost content and Chinese airline content.
Separately, the acquisition includes new long-term distribution agreements between Sabre and the 11
airline owners of Abacus.
We look forward to continuing our long-term business relationships with our former partners in
Abacus, and our new agreements will provide benefits and confidence to travel agents throughout the
Asia-Pacific region for many years to come, said Greg Webb, President of Sabre Travel Network.
Abacus currently provides a broad set of services to its customers using a base of Sabre
technology for the large majority of core functions to market, distribute, sell and service travel
in the Asia-Pacific region, Webb added. That, along with deep local market capabilities, will
result in a smooth transition for Asia-Pacific customers, who should see the benefits of global
capabilities while continuing to use our familiar, leading technology.
Abacus will operate as a region of Sabre Travel Network, and Sabre expects its expanded Asia
Pacific direct presence will benefit Sabre Airline Solutions and Sabre Hospitality Solutions, which
already provide mission-critical support to 78 airlines and thousands of hotels throughout the
Asia-Pacific region. Sabre also will continue its partnership to provide technology services to
INFINI, a local Japanese GDS.
Sabre and Abacus have established the gold standard for service and content in the Asia-Pacific
region, and that only gets better, Klein said. Together with Abacus, Sabre will provide
customers and suppliers with improved and faster access to Sabres industry-leading innovations,
including low-cost carrier content, ancillary capabilities, data analytics, and the latest in
mobile solutions and personalization services. Additionally, airlines and travel agencies will have
more options for new and differentiated products and services created specifically for customers in
the Asia Pacific market.
Subject to regulatory approvals and other closing conditions, the transaction is expected to close
in the third quarter of 2015.
The acquisition, including associated working capital adjustments and cash acquired, is expected to
be financed through approximately $250 million in cash on hand, augmented by incremental net debt
of approximately $160 million. Pro forma for the transaction, Sabre estimates its March 31, 2015
net debt to trailing twelve months Adjusted EBITDA ratio would be 3.3x, compared to 3.0x as
reported.
Assuming a third quarter closing date, Sabre expects the transaction will increase 2015 revenue by
approximately $120 million, be approximately neutral to 2015 Adjusted EPS and modestly accretive to
current-year Adjusted EBITDA.
In 2016, Sabre expects the transaction to increase revenue by more than $300 million, to increase
Adjusted EBITDA by approximately $50 million and to be accretive to Adjusted EPS by approximately
$0.05.
Conference Call
Sabre will conduct an investor conference call on Thursday, May 14 at 11:00 a.m. Eastern Time. The
live webcast, including accompanying slide presentation, can be accessed via the Sabre Investor
Relations website at investors.sabre.com. A recording of the call will be archived for
replay following the conference call.
About the Company
Sabre Corporation is a leading technology provider to the global travel and tourism
industry. Sabres software, data, mobile and distribution solutions are used by hundreds of
airlines and thousands of hotels to manage vital operations, such as passenger and guest
reservations, revenue management, and flight, network and crew management. Sabre also operates the
worlds leading travel marketplace, processing more than $110 billion of annual travel spend.
Headquartered in Southlake, Texas, USA, Sabre operates in approximately 60 countries around the
world.
Website Information
We routinely post important information for investors on our website, www.sabre.com, in the
Investor Relations section. We intend to use this website as a means of disclosing material,
non-public information and for complying with our disclosure obligations under Regulation FD.
Accordingly, investors should monitor the Investor Relations section of our website, in addition to
following our press releases, SEC filings, public conference calls, presentations and webcasts. The
information contained on, or that may be accessed through, our website is not incorporated by
reference into, and is not a part of, this document.
Forward-looking statements
Certain statements in this release are forward-looking statements about trends, future events,
uncertainties and our plans and expectations of what may happen in the future. Any statements that
are not historical or current facts are forward-looking statements. In many cases, you can identify
forward-looking statements by terms such as will, expect, would, estimates, may,
potential or the negative of these terms or other comparable terminology. Forward-looking
statements involve known and unknown risks, uncertainties and other factors that may cause Sabres
actual results, performance or achievements to be materially different from any future results,
performances or achievements expressed or implied by the forward-looking statements. The potential
risks and uncertainties include, among others, the closing and effects of the acquisition described
in this release, dependency on transaction volumes in the global travel industry, particularly air
travel transaction volumes, adverse global and regional economic and political conditions,
including, but not limited to, conditions in Venezuela and Russia, dependence on maintaining and
renewing contracts with customers and other counterparties, exposure to pricing pressure in the
Travel Network business, dependence on relationships with travel buyers, changes affecting travel
supplier customers, travel suppliers usage of alternative distribution models, and competition in
the travel distribution market and solutions markets. More information about potential risks and
uncertainties that could affect our business and results of operations is included in Part I, Item
1A, Risk Factors in Sabres Annual Report on Form 10-K for the year ended December 31, 2014 filed
with the Securities and Exchange Commission. Although we believe that the expectations reflected
in the forward-looking statements are reasonable, we cannot guarantee future events, results,
actions, levels of activity, performance or achievements. Readers are cautioned not to place undue
reliance on these forward-looking statements. Unless required by law, Sabre undertakes no
obligation to publicly update or revise any forward-looking statements to reflect circumstances or
events after the date they are made.
1
Note on Non-GAAP Financial Measures
This release refers to unaudited non-GAAP financial measures, including Adjusted EBITDA,
Adjusted Net Income, Adjusted EPS, and the ratios based on these financial measures. We define
Adjusted EBITDA as Adjusted Net Income adjusted for depreciation and amortization of property and
equipment, amortization of capitalized implementation costs, amortization of upfront incentive
consideration, interest expense, net, and remaining provision (benefit) for income taxes. We define
Adjusted Net Income as income (loss) from continuing operations adjusted for impairment,
acquisition related amortization, loss on extinguishment of debt, other, net, restructuring and
other costs, litigation and taxes, including penalties, stock-based compensation, management fees,
and tax impact of net income adjustments. We define Adjusted EPS as Adjusted Net Income divided by
the applicable share count.
We present non-GAAP measures when our management believes that the additional information provides
useful information about our operating performance. Non-GAAP financial measures do not have any
standardized meaning and are therefore unlikely to be comparable to similar measures presented by
other companies. The presentation of non-GAAP financial measures is not intended to be a substitute
for, and should not be considered in isolation from, the financial measures reported in accordance
with GAAP.
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