(Mark One) | ||
þ
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the fiscal year ended December 31, 2010 | ||
Or
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||
o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the transition period from to |
Bermuda
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98-0505100 | |
(State or other jurisdiction
of incorporation or organization) |
(I.R.S. Employer
Identification Number) |
Large accelerated
filer
o
|
Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
i
| factors affecting the level of travel activity, particularly air travel volume, including security concerns, general economic conditions, natural disasters and other disruptions; | |
| the impact outstanding indebtedness may have on the way we operate our business; | |
| our ability to obtain travel supplier inventory from travel suppliers, such as airlines, hotels, car rental companies, cruise lines and other travel suppliers; | |
| our ability to maintain existing relationships with travel agencies and tour operators and to enter into new relationships on acceptable financial and other terms; | |
| our ability to develop and deliver products and services that are valuable to travel agencies and travel suppliers and generate new revenue streams, including our new universal desktop product; | |
| the impact on supplier capacity and inventory resulting from consolidation of the airline industry; | |
| our ability to grow adjacencies, such as our recent acquisition of Sprice and our controlling interest in eNett; | |
| general economic and business conditions in the markets in which we operate, including fluctuations in currencies; | |
| pricing, regulatory and other trends in the travel industry, including the direct connect efforts of American Airlines and our litigation with American Airlines related thereto; | |
| risks associated with doing business in multiple countries and in multiple currencies; | |
| our ability to achieve expected cost savings from our efforts to improve operational efficiency; | |
| maintenance and protection of our information technology and intellectual property; and | |
| financing plans and access to adequate capital on favorable terms. |
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2
ITEM 1.
BUSINESS
The Global Distribution Systems (GDS) business
consists of our GDSs, which provide aggregation, search and
transaction processing services to travel suppliers and travel
agencies, allowing travel agencies to search, compare, process
and book tens of thousands of itinerary and pricing options
across multiple travel suppliers within seconds. Our GDS
business operates three systems, Galileo, Apollo and Worldspan,
across approximately 160 countries to provide travel agencies
with booking technology and access to considerable supplier
inventory that we aggregate from airlines, hotels, car rental
companies, rail networks, cruise and tour operators, and
destination service providers. Our GDS business provides travel
distribution services to approximately 800 active travel
suppliers and approximately 67,000 online and offline travel
agencies, which in turn serve millions of end consumers
globally. In 2010, approximately 170 million tickets were
issued through our GDS business, with approximately six billion
stored fares normally available at any one time. Our GDS
business executed an average of 77 million searches and
processed up to 1.8 billion travel-related messages per day
in 2010.
The GTA business
receives access to accommodation, ground
travel, sightseeing and other destination services from travel
suppliers at negotiated rates and then distributes this
inventory in over 150 countries, through multiple channels to
other travel wholesalers, tour operators and travel agencies, as
well as directly to consumers via its affiliate channels. GTA
has an inventory of approximately 34,000 hotels worldwide, a
substantial number of which are independent of major hotel
chains, and over 69 million hotel rooms on an annual basis.
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Air France
Egypt Air
Cathay Pacific
Alitalia Airlines
Emirates Airlines
Jet Airways India
KLM Royal Dutch Airlines
Qatar Airways
Qantas Airways
Lufthansa Airlines
Saudi Arabian Airlines
Singapore Airlines
TAP Air Portugal
South African Airways
Thai Airways
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Hosting solutions.
These solutions encompass
mission-critical systems for airlines such as internal
reservation system services, seat and fare class inventory
management, flight operations technology services and software
development services. Our internal reservation system services
include the operation, maintenance, development and hosting of
an airlines internal reservation system and include
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seat availability, reservations, fares and pricing, ticketing
and baggage services. These services are integral to an
airlines operations as they are the means by which an
airline sells tickets to passengers and also drive all the other
key passenger-related services and revenue processes and systems
within the airline. Flight operations technology services
provide operational support to airlines, from pre-flight
preparation through to departure and landing. Some of these
services include weight and balance, flight planning and
tracking, passenger boarding, flight crew management, passenger
manifests and cargo. Software development services focus on
creating innovative software for use in an airlines
internal reservation system and flight operations systems.
IT subscription services.
While some airlines
elect to have their internal reservation system run by a single
IT services provider, others prefer to outsource selected
functions to multiple IT services providers. We have developed,
in part through our hosting arrangements, an array of
leading-edge IT subscription services for mission-critical
applications in fares, pricing and
e-ticketing.
We provide these services to 274 airlines and airline ground
handlers, of which 48 are direct customers and 226 are indirect
customers that receive our services through an intermediary.
Direct IT subscription customers include Emirates, KLM, United
Air Lines, SITA and Turkish Air. Our IT subscription services
include:
Fares and Pricing/e-pricing/Global Fares:
A
fare-shopping tool that enables airlines to outsource fares and
pricing functionality to us.
Electronic Ticketing:
A database and
interchange that enables airlines to outsource electronic
ticketing storage, maintenance and exchange to us. We provide
electronic ticketing services to more than 220 airlines.
Rapid Reprice:
An automated solution that
enables airlines to recalculate fares when itineraries change.
Fare Verified:
A comprehensive pre-ticketing
fare audit tool that enables airlines to protect against errors
or fraud caused by reservation and ticketing agents and
incorrectly priced or reissued tickets.
Interchange:
A system that provides
interactive message translation and switching for multiple
functions, such as
e-ticketing
and check-in, between airline partners.
Business Intelligence.
As part of our GDS
business, we also provide data to airlines, travel agencies,
hotels, car rental companies and other travel industry
participants. Our data sets are critical to these
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businesses in the management of our own operations and the
optimization of our industry position and revenue-generating
potential. Travelport Business Intelligence is a leader in
providing businesses involved in all aspects of travel with
access to both traditional and proprietary market intelligence
data sets. We provide market-sensitive data to 135 airlines,
supporting processes such as GDS billing, airline revenue
accounting and industry settlement. We also supply
marketing-oriented raw data sets, data processing services,
consulting services and web-based analytical tools to 56
airlines, travel agencies and other travel-related companies
worldwide to support their business processes, such as airline
network planning, revenue management, pricing, sales and
partnership management. This combined offering of data and
analytical capabilities delivers market intelligence to
businesses that use the information to enhance their industry
position. A primary data product supplies raw GDS
booking data with details of routes, fares and prices. No
personally identifiable data is provided. Our business
intelligence tools include Beacon and Clarity, which analyze
market specific data for sales planning, network planning,
revenue management and channel management.
Search and Shopping.
We are investing to
improve the speed, quality of results and functionality
available for searches. The existing product suite includes
Travelport
e-Pricing,
a
leading tool which requires a single entry to initiate searches
across published, negotiated, web and advertised fares and
returns shopping results in seconds. Travelport
e-Pricing
outperforms in finding the lowest fare available and generates
the greatest average saving. In May 2010, we acquired
Sprice.com, a metasearch provider with a technology platform
which will complement and extend our existing GDS channels to
enable us to distribute more content and expand our existing
hospitality portfolio.
Travelport Universal Desktop
is a fully-integrated
intelligent desktop, unifying selling and merchandising
programs, automating processes and providing a single integrated
channel to access full GDS, LCC, hotel, car rental and rail
content from multiple sources. Universal Desktop delivers a new
graphic interface that is faster, more user-friendly and offers
greater flexibility than the traditional green
screen interface. In addition to allowing agencies to
configure the desktop to satisfy their respective customer
needs, Universal Desktop also features a dashboard and activity
panel that will provide the latest information, access reports,
calendars and email within the same application. The Universal
Record feature, which combines components of a travel itinerary
irrespective of source, removes the need for duplication by
travel agencies. Further tools will include traveler profiling,
supplier preferencing, policy and quality control, agency search
capabilities, customer service automation, continuity checking,
data tracking and access to management information.
Travelport Traversa
is a corporate travel online booking
tool that allows business travelers to shop for and book their
own reservations quickly and cost-effectively while enabling
corporations to maintain travel policies, maximize supplier
agreements, standardize processes and achieve high online
adoption. Traversa has over 545,000 active traveler profiles and
processed in excess of 3.7 million segments in 2010.
Merchandising and Advertising.
We offer a
suite of travel sales and marketing capabilities which allow
travel suppliers flexibility in how they sell products or target
special offers to particular traveler groups. It enables travel
agencies to tailor their product offers to end customers and
provides a platform on which such products can be advertised and
sold.
eNett (Payment Services Joint Venture)
is developing
automated payment solutions between suppliers and travel
agencies, tailored to meet the needs of the travel industry,
currently focusing on Asia, Europe and the United States.
eNetts billing and settlement solutions via web-based
technology can be integrated or accessed as an independent
system.
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the timeliness, reliability and scope of travel inventory and
related information offered;
service, reliability and ease of use of the system;
the number and size of travel agencies utilizing our GDSs and
the fees charged and inducements paid to travel agencies;
travel supplier participation levels, inventory and the
transaction fees charged to travel suppliers; and
the range of products and services available to travel suppliers
and travel agencies.
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the choice and availability of travel inventory;
customer service;
the strength of independent hotel relationships;
the breadth, diversification and strength of local tour operator
and travel agency relationships;
pricing pressures, which have increased in mature markets in
Europe and North America as a result of increased use of new
distribution channels (such as online travel agencies and hotel
websites);
the reliability of the reservation system;
the geographic scope of products and services offered; and
the ability to package products and services in ways appealing
to travelers.
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ITEM 1A.
RISK
FACTORS
global security issues, political instability, acts or threats
of terrorism, hostilities or war and other political issues that
could adversely affect global air travel volume;
epidemics or pandemics, such as H1N1 swine flu,
avian flu and Severe Acute Respiratory Syndrome
(
SARS
);
natural disasters, such as hurricanes, volcanic activity and
resulting ash clouds, earthquakes and tsunamis, such as the
recent disaster in Japan;
general economic conditions, particularly to the extent that
adverse conditions may cause a decline in travel volume, such as
the crisis in the global credit and financial markets,
diminished liquidity and
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credit availability, declines in consumer confidence and
discretionary income, declines in economic growth, increases in
unemployment rates and uncertainty about economic stability;
the financial condition of travel suppliers, including airlines
and hotels, and the impact of any changes such as airline
bankruptcies or consolidations on the cost and availability of
air travel and hotel rooms;
changes to laws and regulations governing the airline and travel
industry and the adoption of new laws and regulations
detrimental to operations, including environmental and tax laws
and regulations, including the recent carbon emissions reduction
targets for flights to and from the European Union area by the
end of 2012;
fuel price escalation;
work stoppages or labor unrest at any of the major airlines or
other travel suppliers or at airports;
increased security, particularly airport security that could
reduce the convenience of air travel;
travelers perception of the occurrence of travel-related
accidents, of the environmental impact of air travel,
particularly in regards to
CO
2
emissions, or of the scope, severity and timing of the other
factors described above; and
changes in occupancy and room rates achieved by hotels.
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power losses, computer systems failure, Internet and
telecommunications or data network failures, operator error,
losses and corruption of data and similar events;
computer viruses, penetration by individuals seeking to disrupt
operations, misappropriate information or perpetrate fraudulent
activity and other physical or electronic breaches of security;
the failure of third-party software, systems or services that we
rely upon to maintain our own operations; and
natural disasters, wars and acts of terrorism.
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delays in the development, availability and use of the Internet
as a communication, advertising and commerce medium;
difficulties in staffing and managing operations due to
distance, time zones, language and cultural differences,
including issues associated with establishing management systems
infrastructure;
differences and changes in regulatory requirements and exposure
to local economic conditions;
changes in tax laws and regulations, and interpretations thereof;
increased risk of piracy and limits on our ability to enforce
our intellectual property rights, particularly in the MEA region
and Asia;
diminished ability to enforce our contractual rights;
currency risks; and
withholding and other taxes on remittances and other payments by
subsidiaries.
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requiring a substantial portion of cash flow from operations to
be dedicated to the payment of principal and interest on our
indebtedness, therefore reducing our ability to use our cash
flow to fund our capital expenditure and future business
opportunities;
exposing us to the risk of higher interest rates because certain
of our borrowings, including borrowings under our senior secured
credit agreement and our senior notes due 2014, are at variable
rates of interest;
restricting us from making strategic acquisitions or causing us
to make non-strategic divestitures;
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limiting our ability to obtain additional financing for
acquisitions or other strategic purposes;
limiting our ability to adjust to changing market conditions and
placing us at a competitive disadvantage to our less highly
leveraged competitors; and
making us more vulnerable to general economic downturns and
adverse developments in our businesses.
incur additional indebtedness;
pay dividends on, repurchase or make distributions in respect of
capital stock or make other restricted payments;
make certain investments;
sell certain assets;
create liens on certain assets to secure debt;
consolidate, merge, sell or otherwise dispose of all or
substantially all of our assets;
enter into certain transactions with affiliates; and
designate our subsidiaries as unrestricted subsidiaries.
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ITEM 1B.
UNRESOLVED
STAFF COMMENTS
ITEM 2.
PROPERTIES
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Corporate Headquarters
Leased
GDS Operational Business Global Headquarters
Leased
GDS Operational Business U.S. Headquarters
Leased
GTA Operational Business Global Headquarters
Leased
GDS Data Center
Leased
GDS Product Development Center
Leased
GDS Data Center
Owned
GDS Product Development Center
Leased
ITEM 3.
LEGAL
PROCEEDINGS
ITEM 4.
REMOVED
AND RESERVED
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ITEM 5.
MARKET
FOR REGISTRANTS COMMON EQUITY, RELATED STOCKHOLDER MATTERS
AND ISSUER PURCHASES OF EQUITY SECURITIES
ITEM 6.
SELECTED
FINANCIAL DATA
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Predecessor
Company (Consolidated)
(Combined)
July 13, 2006
(Formation
January 1,
Date)
2006
Year Ended
Year Ended
Year Ended
Year Ended
Through
Through
December 31,
December 31,
December 31,
December 31,
December 31,
August 22,
(in $ millions)
2010
2009
2008
2007
2006
2006
2,290
2,248
2,527
2,780
823
1,693
1,164
1,090
1,257
1,170
375
714
547
567
649
1,287
344
647
13
19
27
90
18
92
252
243
263
248
77
123
833
1
14
2,364
(5
)
7
2
(7
)
1,976
2,747
2,203
2,798
828
3,933
314
(499
)
324
(18
)
(5
)
(2,240
)
(272
)
(286
)
(342
)
(373
)
(150
)
(39
)
2
10
29
44
(775
)
11
(391
)
(155
)
(2,279
)
(60
)
68
(43
)
(41
)
(3
)
116
(28
)
(162
)
(144
)
(4
)
(1
)
(1
)
operations, net of tax
(44
)
(869
)
(176
)
(436
)
(159
)
(2,164
)
(1
)
(2
)
(6
)
(6
)
8
(6
)
(44
)
(869
)
(176
)
(443
)
(153
)
(2,176
)
1
(2
)
(3
)
3
(43
)
(871
)
(179
)
(440
)
(153
)
(2,176
)
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December 31,
December 31,
December 31,
December 31,
December 31,
(in $ millions)
2010
2009
2008
2007
2006
242
217
345
309
85
557
524
557
714
649
521
452
491
532
508
2,738
2,887
3,789
3,984
4,480
442
266
388
611
416
4,500
4,346
5,570
6,150
6,138
1,010
927
923
1,043
1,179
3,796
3,640
3,783
3,751
3,623
366
371
445
466
569
5,172
4,938
5,151
5,260
5,371
(672
)
(592
)
419
890
767
4,500
4,346
5,570
6,150
6,138
Predecessor
Company (Consolidated)
(Combined)
July 13, 2006
(Formation
January 1,
Year Ended
Year Ended
Year Ended
Year Ended
Date) Through
2006 Through
December 31,
December 31,
December 31,
December 31,
December 31,
August 22,
(in $ millions)
2010
2009
2008
2007
2006
2006
284
239
124
224
268
(241
)
(55
)
(84
)
(1,141
)
(4,310
)
84
(22
)
(317
)
6
1,137
4,394
(382
)
4
5
(10
)
4
2
8
25
(128
)
36
224
86
(22
)
2
1
(7
)
25
(128
)
36
226
87
(29
)
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Predecessor
Company (Consolidated)
(Combined)
July 13, 2006
(Formation
Date)
January 1,
Year Ended
Year Ended
Year Ended
Year Ended
Through
2006 Through
December
December
December
December
December
August
31, 2010
31, 2009
31, 2008
31, 2007
31, 2006
22, 2006
1.16
x
n/a
1.04
x
n/a
n/a
n/a
(a)
For the purposes of calculating the ratio of earnings to fixed
charges, earnings represents income from continuing operations
before income taxes plus fixed charges. Fixed charges comprise
interest for the period and includes amortization of debt
financing costs and the interest portion of rental payments. Due
to the losses in the year ended December 31, 2009, the year
ended December 31, 2007, the period July 13, 2006
(Formation Date) to December 31, 2006 and the period from
January 1, 2006 to August 22, 2006, earnings would
have been insufficient to cover fixed charges by
$775 million, $391 million, $155 million and
$2,279 million, respectively.
2010
(in $ millions)
First
Second
Third
Fourth
581
598
582
529
311
297
291
265
60
95
104
55
(21
)
22
24
(69
)
2009
(in $ millions)
First
Second
Third
(a)
Fourth
553
592
570
533
278
286
270
256
57
115
(740
)
69
(170
)
40
(740
)
1
(a)
During the third quarter of 2009, we recorded an impairment
charge of $833 million, of which $491 million related
to goodwill, $87 million related to trademarks and
tradenames and $255 million related to customer
relationships.
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ITEM 7.
MANAGEMENTS
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The GDS business
consists of our GDSs, which provide
aggregation, search and transaction processing services to
travel suppliers and travel agencies, allowing travel agencies
to search, compare, process and book tens of thousands of
itinerary and pricing options across multiple travel suppliers
within seconds. Our GDS business operates three systems,
Galileo, Apollo and Worldspan, across approximately 160
countries to provide travel agencies with booking technology and
access to considerable supplier inventory that we aggregate from
airlines, hotels, car rental companies, rail networks, cruise
and tour operators, and destination service providers. Our GDS
business provides travel distribution services to approximately
800 active travel suppliers and approximately 67,000 online and
offline travel agencies, which in turn serve millions of end
consumers globally. In 2010, approximately 170 million
tickets were issued through our GDS business, with approximately
six billion stored fares normally available at any one
time. Our GDS business executed an average of 77 million
searches and processed up to 1.8 billion travel-related
messages per day in 2010.
The GTA business
receives access to accommodation, ground
travel, sightseeing and other destination services from travel
suppliers at negotiated rates and then distributes this
inventory in over 150 countries, through multiple channels to
other travel wholesalers, tour operators and travel agencies, as
well as directly to consumers via its affiliate channels. GTA
has an inventory of approximately 34,000 hotels worldwide, a
substantial number of which are independent of major hotel
chains, and over 69 million hotel rooms on an annual basis.
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Years Ended December 31,
(in $ millions, except where indicated)
2010
2009
2008
2,290
2,248
2,527
314
(499
)
324
629
632
716
1,996
1,981
2,171
560
602
591
587
628
669
172
170
182
84
80
88
55
48
51
38
40
52
349
338
373
294
267
356
82
(776
)
110
84
59
110
11.9
10.0
11.4
1,887
1,594
1,887
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Years Ended December 31,
(in $ millions)
2010
2009
2008
(44
)
(869
)
(176
)
28
162
144
60
(68
)
43
252
243
263
272
286
342
568
(246
)
616
8
7
8
34
23
69
13
19
27
833
5
10
5
3
(6
)
6
6
(8
)
(23
)
61
878
100
629
632
716
(1)
Disposed EBITDA represents the EBITDA of a non-core GDS business
disposed during the year ended December 31, 2008.
(2)
Acquisition and corporate transaction costs represents costs
related to the integration of Worldspan, costs associated with
the relocation of Travelports finance and human resource
functions from the United States to the United Kingdom,
strategic transaction costs (including the proposed offering of
securities and other Company-related costs), other costs related
to non-core GDS businesses and a gain on the sale of
Travelports Indian service organization. This amount does
not include items classified as impairment or restructuring
charges, which are included as separate line items.
(3)
Restructuring charges represent the costs recorded during the
period to enhance our organizational efficiency and to
consolidate and rationalize existing processes.
(4)
Other includes gains on the extinguishment of debt (totaling
$2 million, $10 million and $29 million for the
years ended December 31, 2010, 2009 and 2008,
respectively), amounts relating to purchase accounting impacts,
including deferred revenue adjustments, recorded at the time of
the Acquisition (totaling $3 million for each of the years
ended December 31, 2010, 2009 and 2008, respectively), a
$6 million write-off of property and equipment for the year
ended December 31, 2010 and a $5 million gain on the
sale of assets for the year ended December 31, 2009.
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GDS
Years Ended December 31,
(in $ millions)
2010
2009
2008
560
602
591
8
11
17
54
6
6
14
10
3
2
27
26
78
587
628
669
(1)
Disposed EBITDA represents the EBITDA of a non-core GDS business
disposed during the year ended December 31, 2008.
(2)
GDS acquisition and corporate transaction costs represent costs
related to the integration of Worldspan, costs associated with
the relocation of our finance and human resource functions from
the United States to the United Kingdom, strategic transaction
costs, and certain other costs related to non-core GDS
businesses. This measure does not include items classified as
impairment or restructuring charges, which are included as
separate line items.
(3)
Restructuring charges represent the costs recorded during the
period to enhance our organizational efficiency and to
consolidate and rationalize existing processes.
(4)
Other includes amounts relating to purchase accounting impacts,
including deferred revenue adjustments, recorded at the time of
Acquisition (totaling $3 million for each of the years
ended December 31, 2010, 2009 and 2008, respectively) and a
$6 million write-off of property and equipment for the year
ended December 31, 2010.
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GTA
Years Ended December 31,
(in $ millions)
2010
2009
2008
82
(776
)
110
(2
)
(4
)
2
4
4
833
2
835
84
59
110
(1)
GTA acquisition and corporate transaction costs comprise
non-recurring items, including a gain on the sale of our Indian
service organization. This measure does not include items
classified as impairment or restructuring charges, which are
included as separate line items.
(2)
Restructuring charges represent the costs recorded during the
period to enhance our organizational efficiency and to
consolidate and rationalize existing processes.
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Reconciling Items
Corporate and Unallocated
GDS Segment
GTA Segment
Expenses
Consolidated
Year Ended
Year Ended
Year Ended
Year Ended
December 31,
December 31,
December 31,
December 31,
(in $ millions)
2010
2009
2010
2009
2010
2009
2010
2009
1,996
1,981
294
267
2,290
2,248
1,119
1,049
45
41
1,164
1,090
311
326
165
165
71
76
547
567
6
6
2
4
5
9
13
19
207
180
42
56
3
7
252
243
833
833
(2
)
(3
)
(5
)
1,643
1,559
254
1,099
79
89
1,976
2,747
353
422
40
(832
)
(79
)
(89
)
314
(499
)
207
180
42
56
560
602
82
(776
)
(272
)
(286
)
2
10
44
(775
)
(60
)
68
(28
)
(162
)
(44
)
(869
)
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Year Ended
December 31,
(in $ millions)
2010
2009
42
55
23
9
5
10
7
1
(5
)
71
76
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Year Ended
December 31,
(in $ millions)
2010
2009
(16
)
271
(26
)
(53
)
(3
)
(13
)
(16
)
16
(175
)
2
(3
)
(1
)
25
(60
)
68
52
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Year Ended
December 31,
Change
(in $ millions)
2010
2009
$
%
1,797
1,758
39
2
199
223
(24
)
(11
)
1,996
1,981
15
1
Year Ended
December 31,
Change
(in $ millions)
2010
2009
$
%
717
726
(9
)
(1
)
523
505
18
4
257
263
(6
)
(2
)
300
264
36
14
1,797
1,758
39
2
Year Ended
December 31,
Change
(in $ millions)
2010
2009
$
%
859
771
88
11
260
278
(18
)
(6
)
1,119
1,049
70
7
53
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54
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Reconciling Items
Corporate and Unallocated
GDS Segment
GTA Segment
Expenses
Consolidated
Year Ended
Year Ended
Year Ended
Year Ended
December 31,
December 31,
December 31,
December 31,
(in $ millions)
2009
2008
2009
2008
2009
2008
2009
2008
1,981
2,171
267
356
2,248
2,527
1,049
1,186
41
71
1,090
1,257
326
373
165
171
76
105
567
649
6
14
4
4
9
9
19
27
180
194
56
63
7
6
243
263
833
833
(2
)
7
(3
)
(5
)
7
1,559
1,774
1,099
309
89
120
2,747
2,203
422
397
(832
)
47
(89
)
(120
)
(499
)
324
180
194
56
63
602
591
(776
)
110
(286
)
(342
)
10
29
(775
)
11
68
(43
)
(162
)
(144
)
(869
)
(176
)
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Year Ended
December 31,
(in $ millions)
2009
2008
55
63
9
20
10
5
7
8
(5
)
9
76
105
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Year Ended
December 31,
(in $ millions)
2009
2008
271
(4
)
(175
)
(4
)
(53
)
(31
)
(13
)
(12
)
(3
)
(9
)
16
25
17
68
(43
)
Year Ended
December 31,
Change
(in $ millions)
2009
2008
$
%
1,758
1,932
(174
)
(9
)
223
239
(16
)
(7
)
1,981
2,171
(190
)
(9
)
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Year Ended
December 31,
Change
(in $ millions)
2009
2008
$
%
726
764
(38
)
(5
)
505
565
(60
)
(11
)
263
333
(70
)
(21
)
264
270
(6
)
(2
)
1,758
1,932
(174
)
(9
)
Year Ended
December 31,
Change
(in $ millions)
2009
2008
$
%
771
848
(77
)
(9
)
278
338
(60
)
(18
)
1,049
1,186
(137
)
(12
)
58
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As of December 31,
Change
(in $ millions)
2010
2009
$
799
741
58
3,701
3,605
96
4,500
4,346
154
1,010
927
83
4,162
4,011
151
5,172
4,938
234
(684
)
(607
)
(77
)
12
15
(3
)
4,500
4,346
154
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reducing or deferring discretionary expenditure;
selling assets or businesses;
re-negotiating financial covenants; and
securing additional sources of finance or investment.
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Year Ended December 31,
(in $ millions)
2010
2009
2008
629
632
716
(232
)
(255
)
(296
)
(29
)
(46
)
(34
)
(29
)
(32
)
(134
)
(18
)
(26
)
(33
)
(37
)
(34
)
(95
)
284
239
124
232
255
296
(182
)
(58
)
(94
)
334
436
326
Year Ended December 31,
(in $ millions)
2010
2009
2008
284
239
124
(241
)
(55
)
(84
)
(22
)
(317
)
6
4
5
(10
)
25
(128
)
36
62
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63
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64
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65
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incur additional indebtedness or issue certain preferred shares;
pay dividends on, repurchase or make other distributions in
respect of their capital stock or make other restricted payments;
make certain investments;
66
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sell certain assets;
create liens on certain assets to secure debt;
consolidate, merge, sell or otherwise dispose of all or
substantially all their assets;
enter into certain transactions with affiliates; and
designate subsidiaries as unrestricted subsidiaries.
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Year Ended December 31,
(in $ millions)
2011
2012
2013
2014
2015
Thereafter
Total
18
18
246
801
2,031
700
3,814
259
257
253
227
146
44
1,186
20
19
16
13
9
22
99
78
46
46
31
201
375
340
561
1,072
2,186
766
5,300
(a)
Interest on floating rate debt and euro denominated debt is
based on the interest rate and foreign exchange rate as of
December 31, 2010. As of December 31, 2010, we have
$61 million of accrued interest on our consolidated balance
sheets that will be paid in 2011. Interest payments exclude the
effects of
mark-to-market
adjustments on related hedging instruments.
(b)
Primarily reflects non-cancellable operating leases on
facilities and data processing equipment.
(c)
Purchase commitments and other primarily reflects our agreement
with a third party for data center services and our obligations
under pension plans. Our obligations related to defined benefit
and
post-retirement
pension plans are actuarially determined on an annual basis. Our
expected plan contributions of $12 million to be made
during 2011 are included above. However, funding projections
beyond 2011 are not practical to estimate and therefore not
included.
68
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69
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70
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71
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72
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ITEM 7A.
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
ITEM 8.
FINANCIAL
STATEMENTS AND SUPPLEMENTARY DATA
73
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ITEM 9.
CHANGES
IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
ITEM 9A(T).
CONTROLS
AND PROCEDURES
(a)
Disclosure
Controls and Procedures.
(b)
Managements
Annual Report on Internal Control over Financial
Reporting.
(c)
Changes
in Internal Control Over Financial Reporting.
ITEM 9B.
OTHER
INFORMATION
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ITEM 10.
DIRECTORS,
EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
49
President, Chief Executive Officer and Director
44
Deputy Chief Executive Officer; President and Chief Executive
Officer, GDS Business
47
Executive Vice President and Chief Financial Officer
46
President and Chief Executive Officer, GTA Business
45
Executive Vice President, Chief Administrative Officer and
General Counsel
46
Executive Vice President, Human Resources
43
Chairman of the Board of Directors
36
Director
39
Director
44
Director*
*
Mr. OHara has resigned from our Board of Directors
effective as of March 31, 2011.
75
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ITEM 11.
EXECUTIVE
COMPENSATION
salary;
annual incentive compensation (bonus awards);
long-term incentive compensation (generally in the form of
restricted equity); and
other limited perquisites and benefits.
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Discretionary Bonus.
Discretionary bonuses can
take the form of signing, retention, sale and other
discretionary bonuses, as determined by the Compensation
Committee of our Board of Directors. We paid discretionary
bonuses to our Named Executive Officers in 2010, as described in
Summary Compensation Table below, and we
may elect to pay these types of bonuses again from time to time
in the future.
Annual Incentive Compensation (Bonus).
We have
developed an annual bonus program to align executives
goals with our objectives for the applicable year. The target
bonus payment for each of our Named Executive Officers is
specified in each Named Executive Officers employment
agreement or related documentation and ranges from 75% to 150%
of each officers base salary. As receipt of these bonuses
is subject to the attainment of performance criteria, they may
be paid, to the extent earned or not earned, at, below, or above
target levels. For 2010, these bonuses were not paid because of
our performance as compared to the adjusted EBITDA targets
established by our Board of Directors for the 2010 fiscal year.
Bonuses for 2011 will be paid on a semi-annual basis and also
will be based upon the achievement of adjusted EBITDA targets
established by our Board of Directors. For 2011, executive
officers other than Mr. Clarke will have a maximum
potential award of twice their target bonus, and the maximum
potential award for Mr. Clarke is 350% of target level
pursuant to his employment agreement. In addition, our Board has
established an executive supplemental bonus program for certain
members of our management, including our Named Executive
Officers, payable in respect of the first quarter of 2011 upon
the satisfaction of certain conditions by the Company.
Option Awards.
We do not currently use options
as part of our executive compensation program.
Stock Partnership.
We provide long-term
incentives through our equity incentive plan, which uses
different classes of equity and is described further below under
Our Equity Incentive Plan. Under the
terms of the plan, we may grant equity incentive awards in the
form of
Class A-2
Units
and/or
Restricted Equity Units of our ultimate parent, TDS Investor
(Cayman) L.P., a limited partnership, to officers, employees,
non-employee directors or consultants. Each
Class A-2
Unit represents an interest in a limited partnership and has
economic characteristics that are similar to those of shares of
common stock in a corporation. Each Restricted Equity Unit
entitles its holder to receive one
Class A-2
Unit at a future date, subject to certain vesting conditions. In
2010, we awarded restricted equity units to two of our Named
Executive Officers, Philip Emery and Lee Golding, following
their promotion to Chief Financial Officer and Executive Vice
President, Human Resources, respectively, in October 2009.
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Paul C. Schorr IV
Martin J. Brand
William J.G. Griffith
M. Gregory OHara*
Non-Equity
Stock
Incentive Plan
All Other
Salary
Bonus(1)
Awards(2)
Compensation(3)
Compensation(4)
Total
Year
($)
($)
($)
($)
($)
($)
2010
1,000,000
190,587
0
0
462,914
(5)
1,653,501
2009
955,769
0
7,024,650
2,115,025
537,359
10,632,803
2008
1,000,000
209,688
0
3,375,000
853,648
5,438,336
2010
797,800
93,315
0
0
165,672
(7)
1,056,787
2009
636,744
0
3,364,079
781,975
170,342
4,953,140
2008
547,238
85,854
0
820,856
140,199
1,594,147
2010
475,000
138,968
0
0
101,721
(8)
715,688
2009
475,000
0
2,145,028
546,206
94,196
3,260,430
2008
475,000
44,759
0
712,500
385,229
1,617,488
2010
454,746
22,860
1,015,844
0
114,706
(9)
1,608,156
2009
374,189
0
1,345,633
336,297
96,874
2,152,993
2010
335,076
74,039
351,529
0
70,246
(10)
830,891
(1)
Amounts included in this column reflect special payments to
management in April 2010 and May 2008, as well as a special
bonus paid to Mr. Bock in January 2010 and an installment
of a cash long-term incentive program award paid to
Ms. Golding in March 2010. The amounts in this column do
not include any amounts paid as annual incentive compensation
(bonus), which are reported separately in the column entitled
Non-Equity Incentive Plan Compensation.
(2)
Amounts included in this column reflect the grant date fair
value computed in accordance with FASB ASC 718
Compensation Stock Compensation
(FASB
ASC 718) for Restricted Equity Units
(REUs) granted in the relevant year. Related fair
values consider the right to receive dividends in respect of
such equity awards, and, accordingly, dividends paid are not
separately reported in this table. Assumptions used in the
calculation of these amounts are included in footnote 18,
Equity-Based Compensation, to the financial
statements included in this
Form 10-K.
(3)
Amounts included in this column include amounts paid as annual
incentive compensation under our performance-based bonus plans.
(4)
As detailed in footnote 2 above, the right to receive dividends
in respect of equity awards is included in the FASB ASC 718
value and, thus, any dividends paid to our Named Executive
Officers are not included in All Other Compensation.
(5)
Includes company matching 401(k) contributions of $14,700, bonus
deferred compensation match of $11,435, base compensation
deferred compensation match of $47,492, housing allowance and
related benefits of $153,928, tax assistance on such housing
allowance benefits of $136,519, financial planning
81
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benefits of $17,000, tax assistance on such financial planning
benefits of $15,369, payment of employee FICA on vesting of
Restricted Equity Units of $34,910 and tax assistance on such
FICA of $31,560.
(6)
All amounts expressed for Messrs. Wilson and Emery and
Ms. Golding (with the exception of equity awards) were paid
in British pounds and have been converted to U.S. dollars at the
applicable exchange rate for December 31 of the applicable year,
i.e.
1.5659 U.S. dollars to 1 British pound as of
December 31, 2010
,
1.6145 U.S. dollars to 1 British
pound as of December 31, 2009, and 1.4593 U.S. dollars to 1
British pound as of December 31, 2008.
(7)
Includes company matching pension contributions of $117,443,
travel allowance of $7,830, car allowance benefits of $36,016
and financial planning benefits of $4,385.
(8)
Includes company matching 401(k) contributions of $14,700, bonus
deferred compensation match of $2,338, base compensation
deferred compensation match of $14,896, car allowance benefits
of $16,117, financial planning benefits of $12,610, tax
assistance on such car allowance and financial planning benefits
of $21,238, payment of employee FICA on vesting of Restricted
Equity Units of $10,660 and tax assistance on such FICA of
$9,162.
(9)
Includes company matching pension contributions of $66,942,
travel allowance of $7,830, car allowance benefits of $23,958,
financial planning benefits of $783 and commuting benefits of
$15,193.
(10)
Includes company matching pension contributions of $32,884,
travel allowance of $7,830, car allowance benefits of $27,341
and financial planning benefits of $2,192.
All Other
Stock
Grant
Awards:
Date
Estimated Potential Payouts
Estimated Future Payouts
Number
Fair Value
Under Non-Equity Incentive
Under Equity Plan
of Shares
of Stock
Plan Awards
Awards
of Stock
and Option
Type of
Grant
Threshold
Target
Maximum
Threshold
Target
Maximum
Units
Awards
Award
Date
($)
($)
($)
(#)
(#)
(#)
(#)
($)(1)
President, Chief Executive
Officer and Director
Non-Equity Incentive Plan
$
0
$
1,500,000
$
5,250,000
Non-Equity Incentive Plan
$
0
$
782,950
$
1,565,900
and President and Chief Executive Officer, GDS
Non-Equity Incentive Plan
$
0
$
475,000
$
950,000
Chief Administrative Officer and General Counsel
Non-Equity Incentive Plan
$
0
$
334,711
$
669,422
2010 LTIP REUs
8/18/2010
302,728
606,364
909,092
$1,015,844
Non-Equity Incentive Plan
$
0
$
246,629
$
493,259
2010 LTIP REUs
8/18/2010
104,758
209,830
314,588
351,529
(1)
These amounts reflect maximum grant date value of the award
computed in accordance with FASB ASC 718 assuming the highest
level of performance over the four year period, as the probable
outcome of performance could not be determined as of the grant
date of August 18, 2010. FASB ASC 718, however, only
allows for expensing of units for which performance vesting
criteria have been established.
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84
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Stock Awards
Equity Incentive Plan
Market
Equity Incentive
Awards: Market or
Number of
Value of
Plan Awards:
Payout Value of
Shares or
Shares or
Number of
Unearned Shares,
Units of
Units of
Unearned Shares,
Units or Other
Stock that
Stock that
Units or Other
Rights that
Type of
have not
have not
Rights that have
have not
Award
Vested (#)
Vested ($)
not Vested (#)
Vested ($)(1)
President, Chief Executive Officer and Director
2009 LTIP REUs
n/a
n/a
5,767,607
$
7,555,565
Deputy Chief Executive Officer and President and Chief Executive
Officer, GDS
2009 LTIP REUs
n/a
n/a
2,762,086
$
3,618,333
Executive Vice President, Chief Administrative Officer and
General Counsel
2009 LTIP REUs
n/a
n/a
1,761,181
$
2,307,147
Executive Vice President and
2009 LTIP REUs
n/a
n/a
1,104,836
$
1,447,335
2010 LTIP REUs
n/a
n/a
909,092
$
1,190,911
Executive Vice President,
2009 LTIP REUs
n/a
n/a
859,317
$
1,125,705
2010 LTIP REUs
n/a
n/a
314,588
$
412,110
(1)
The Companys equity is not publicly traded. Payout Value
in this column is based upon the established value of each REU
based upon the most recently completed independent valuation of
the Company as of December 31, 2010.
Number of Restricted Equity
Units Becoming Vested
Value Realized on
During the Year(1)
Vesting($)
President, Chief Executive Officer and Director
1,626,761
$
2,407,606
Deputy Chief Executive Officer and President and Chief Executive
Officer, GDS
779,050
$
1,152,994
Executive Vice President, Chief Administrative Officer and
General Counsel
496,743
$
735,180
Executive Vice President and Chief Financial Officer
311,620
$
461,198
Executive Vice President, Human Resources
242,371
$
358,709
(1)
As noted above, the REUs granted pursuant to the 2010 LTIP did
not vest in 2010 as the first tranche will be eligible for
vesting on August 1, 2011 based on Company performance in
2010.
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Beginning
Aggregate
Balance at
Executive
Registrant
Aggregate
Aggregate
Balance
Prior FYE
Contributions
Contributions
Earnings
Withdrawals/
at Last FYE
(12/31/2009)
in Last FY
in Last FY
in Last FY
Distributions
(12/31/2010)
($)
($)
($)
($)
($)
($)
2,895,504
371,218
140,829
176,721
1,541,356
2,042,916
192,185
35,757
35,757
45,057
0
308,756
(a)
Messrs. Wilson and Emery and Ms. Golding participate
in a United Kingdom defined contribution pension scheme that is
similar to a 401(k) plan and, therefore, is not included in this
table.
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Acceleration
and
Continuation
Continuation
of
of Certain
Equity
Cash
Benefits
(Unamortized
Total
Severance
(Present
Expense as of
Excise Tax
Termination
Payment($)
value)($)
12/31/2010($)
Gross-up($)
Benefits($)
Voluntary retirement
0
0
0
0
0
Involuntary termination
7,475,000
179,226
4,038,110
0
11,692,337
Change in Control (CIC)
0
0
5,039,562
0
5,039,562
Involuntary or good reason termination after CIC
7,475,000
179,226
0
0
7,654,226
Voluntary retirement
0
0
0
0
Involuntary termination
3,131,800
0
1,933,836
5,065,636
Change in Control (CIC)
0
0
2,413,427
2,413,427
Involuntary or good reason termination after CIC
3,131,800
0
0
3,131,800
Voluntary retirement
0
0
0
0
Involuntary termination
2,850,000
287,176
1,233,066
4,370,242
Change in Control (CIC)
0
0
1,538,867
1,538,867
Involuntary or good reason termination after CIC
2,850,000
287,176
0
3,137,176
Voluntary retirement
0
0
0
0
Involuntary termination
780,993
0
1,155,868
1,936,861
Change in Control (CIC)
0
0
1,763,284
1,763,284
Involuntary or good reason termination after CIC
1,896,696
0
0
1,896,696
Voluntary retirement
0
0
0
0
Involuntary termination
575,468
0
733,943
1,309,411
Change in Control (CIC)
0
0
1,026,959
1,026,959
Involuntary or good reason termination after CIC
1,397,566
0
0
1,397,566
Accrued salary and vacation pay (if applicable);
Earned but unpaid bonus; and
Distributions of plan balances under our 401(k) plan and the
Deferred Compensation Plan.
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Covered terminations generally.
Eligible
terminations include an involuntary termination for reasons
other than cause, or, as applicable, a voluntary resignation by
the executive as a result of a constructive termination or
fundamental breach of contract.
Covered terminations following a Change in
Control.
Eligible terminations include an
involuntary termination for reasons other than cause, or, as
applicable, a voluntary resignation by the executive as a result
of a constructive termination or fundamental breach of contract
following a change in control.
Definitions of Cause and Constructive Termination (only
applicable to Messrs. Clarke and Bock)
A termination of the executive by the Company is for cause if it
is for any of the following reasons:
The executives failure substantially to perform
executives duties for a period of 10 days following
receipt of written notice from the Company of such failure;
Theft or embezzlement of company property or dishonesty in the
performance of the executives duties;
Conviction
which is not subject to routine appeals of
right or a plea of no contest for (x) a felony
under the laws of the United States or any state thereof or
(y) a crime involving moral turpitude for which the
potential penalty includes imprisonment of at least one year;
In the case of Mr. Clarke only, if executive purposefully
or knowingly makes a false certification to the Company
pertaining to its financial statements or by reason or any court
or administrative order, arbitration or other ruling, the
executives ability to fully perform his duties as
President and Chief Executive Officer or as a member of the
Board is materially impaired;
The executives willful malfeasance or willful misconduct
in connection with the Named Executive Officers duties or
any act or omission which is materially injurious to our
financial condition or business reputation; or
The executives breach of the restrictive covenants in his
employment agreement.
A termination by the executive is as a result of constructive
termination if it results from, among other things:
Any material reduction in the executives base salary or
annual bonus (excluding any change in value of equity incentives
or a reduction affecting substantially all similarly situated
executives);
The Companys failure to pay compensation or benefits when
due;
In the case of Mr. Clarke only, the Companys failure
to nominate the executive for election to the Board of Directors
or failure of the executive to be re-elected to the Board of
Directors resulting from the failure of the Companys
majority shareholder to vote in favor of the executive;
Material and sustained diminution to the executives duties
and responsibilities;
The primary business office for the executive being relocated by
more than 50 miles (for Mr. Clarke only, more than
30 miles from the city limits of Parsippany, New Jersey;
New York,
88
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New York or Chicago, Illinois; for Mr. Bock only, more than
50 miles from Parsippany, New Jersey or New York, New
York); or
The Companys election not to renew the initial employment
term or any subsequent extension thereof (except as a result of
the executives reaching retirement age, as determined by
our policy).
Cash severance payment.
This represents a cash
severance payment of 2.99 (Mr. Clarke) and three
(Mr. Bock) times the sum of his base salary and target
annual bonus plus a pro-rata bonus for 2010. For
Mr. Wilson, this represents two times the sum of his base
salary and target annual bonus. For Mr. Emery and
Ms. Golding, this represents 12 months of salary plus
pro-rata target bonus for 2010, and, for a termination following
a change in control, 24 months of base annual salary and
target bonus (which applies in certain circumstances following a
change in control), plus pro-rata target bonus for 2010. The
Company is also required to give both Messrs. Wilson and
Emery and Ms. Golding 12 months of notice or pay in
lieu of notice. In the case of Messrs. Clarke, Bock and
Emery, as well as Ms. Golding, they must execute, deliver
and not revoke a separation agreement and general release
(Separation Agreement) in order to receive these
benefits.
Continuation of health, welfare and other
benefits.
Represents, following a covered
termination, three years for Messrs. Clarke and Bock of
continued health and welfare benefits (at active employee rates)
and financial planning benefits and a lump sum in lieu of life
insurance and executive car program (the latter for
Mr. Bock only), as well as applicable tax assistance on
such benefits, provided the executive has executed, delivered
and not revoked the Separation Agreement.
Acceleration and continuation of equity
awards.
Upon termination without cause, as the
result of a constructive termination, death or disability,
unvested REUs granted to our Named Executive Officers under the
2009 LTIP and 2010 LTIP are converted into a time-based award,
and the Named Executive Officer receives vesting of unvested
REUs at target based upon pro-rata time served in year of
termination plus an additional 18 months divided by number
of months remaining in the four year performance period starting
with the year of termination. As a result, a termination on
December 31, 2010 results in vesting of
30
/
36
ths
of the 2010 through 2012 tranches of the 2009 LTIP REUs at
target (66.7%) and vesting of
23
/
48
ths
of the 2010 through 2013 tranches of the 2010 LTIP REUs at
target (67%).
Payments Upon Change in Control Alone.
The
change in control provisions in the current employment
agreements for our Named Executive Officers do not provide for
any special vesting upon a change in control alone, and
severance payments are made only if the executive suffers a
covered termination of employment. In addition, upon a change in
control while a Named Executive Officer who was granted 2009
LTIP REUs and, if such change in control occurs following a
qualified public offering, 2010 LTIP REUs, is employed by the
Company, unvested REUs under the 2009 LTIP and 2010 LTIP will
vest at target (including any unvested REUs that did not vest in
prior year(s) due to not meeting Annual Goals at target) and
remaining unvested REUs are forfeited. As a result, in the
Potential Payments Upon Termination of Employment or Change in
Control table, a change in control on December 31, 2010
results in vesting of 66.7% of the unvested REUs granted to our
Named Executive Officers pursuant to the 2009 LTIP and 67% of
the unvested REUs granted to our Named Executive Officers
pursuant to the 2010 LTIP.
Excise Tax
Gross-Up.
Mr. Clarkes
employment agreement provides that, in the event that any
payments or benefits provided to Mr. Clarke under his
employment agreement or any other plan or agreement in
connection with a change in control by us result in an
excess parachute payment excise tax of over $50,000
being imposed on Mr. Clarke, he would be entitled to a
gross-up
payment equal to the amount of the excise tax, as well as a
payment equal to the income tax and additional excise tax on the
gross-up
payment. In the change in control scenarios set forth above,
there is no excise tax that is required to be paid or grossed up.
89
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ITEM 12.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
Amount and Nature
of Beneficial
Ownership
Percent
Blackstone
Funds
(1)
818,706,823
70.26
%
TCV
Funds
(2)
132,049,488
11.33
%
OEP TP
Ltd.
(3)
132,049,487
11.33
%
Jeff
Clarke
(4)
17,075,388
1.47
%
Gordon
Wilson
(4)
8,007,083
*
Philip
Emery
(4)
1,566,112
*
Eric
Bock
(4)
2,953,891
*
Lee
Golding
(4)
1,314,006
*
Paul C. Schorr
IV
(5)
818,706,823
70.26
%
Martin
Brand
(6)
818,706,823
70.26
%
William J.G.
Griffith
(7)
132,049,488
11.33
%
All directors and executive officers as a group
(10 persons)
(8)
34,717,981
2.98
%
*
Beneficial owner holds less than 1% of Class A Units.
(1)
Reflects beneficial ownership of 342,838,521
Class A-1
Units held by Blackstone Capital Partners (Cayman) V L.P.,
317,408,916
Class A-1
Units held by Blackstone Capital Partners (Cayman) VA L.P.,
90
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98,340,355
Class A-1
Units held by BCP (Cayman) V-S L.P., 18,930,545
Class A-1
Units held by BCP V Co-Investors (Cayman) L.P., 24,910,878
Class A-1
Units held by Blackstone Family Investment Partnership (Cayman)
V-SMD L.P., 13,826,933
Class A-1
Units held by Blackstone Family Investment Partnership (Cayman)
V L.P. and 2,450,675
Class A-1
Units held by Blackstone Participation Partnership (Cayman) V
L.P. (collectively, the Blackstone Funds), as a
result of the Blackstone Funds ownership of interests in
TDS Investor (Cayman) L.P., for each of which Blackstone LR
Associates (Cayman) V Ltd. is the general partner having voting
and investment power over the
Class A-1
Units held or controlled by each of the Blackstone Funds.
Messrs. Schorr and Brand are directors of Blackstone LR
Associates (Cayman) V Ltd. and as such may be deemed to share
beneficial ownership of the
Class A-1
Units held or controlled by the Blackstone Funds. The address of
Blackstone LR Associates (Cayman) V Ltd. and the Blackstone
Funds is
c/o The
Blackstone Group L.P., 345 Park Avenue, New York, New York 10154.
(2)
Reflects beneficial ownership of 131,016,216
Class A-1
Units held by TCV VI (Cayman), L.P. and 1,033,272
Class A-1
Units held by TCV Member Fund (Cayman), L.P. (collectively, the
TCV Funds), both funds fully owned by Technology
Crossover Ventures. The address of Technology Crossover Ventures
and the TCV Funds is
c/o Technology
Crossover Ventures, 528 Ramona Street, Palo Alto, California
94301.
(3)
The address of OEP TP Ltd. is
c/o One
Equity Partners, 320 Park Avenue, 18th Floor, New York,
NY 10022.
(4)
The units of TDS Investor (Cayman) L.P. consist of
Class A-1
and
Class A-2
Units. As of March 5, 2011, all of the issued and
outstanding
Class A-1
Units were held by the Blackstone Funds, the TCV Funds and OEP
TP Ltd. Certain of our executive officers hold
Class A-2
Units, which generally have the same rights as
Class A-1
Units, subject to restrictions and put and call rights
applicable only to units held by employees.
(5)
Mr. Schorr, a director of the Company and TDS Investor
(Cayman) L.P., is a Senior Managing Director of The Blackstone
Group. Amounts disclosed for Mr. Schorr are also included
in the amounts disclosed for the Blackstone Funds.
Mr. Schorr disclaims beneficial ownership of any shares
owned directly or indirectly by the Blackstone Funds.
(6)
Mr. Brand, a director of the Company and TDS Investor
(Cayman) L.P., is a Managing Director of The Blackstone Group.
Amounts disclosed for Mr. Brand are also included in the
amounts disclosed for the Blackstone Funds. Mr. Brand
disclaims beneficial ownership of any shares owned directly or
indirectly by the Blackstone Funds.
(7)
Mr. Griffith, a director of the Company and TDS Investor
(Cayman) L.P., is a General Partner of Technology Crossover
Ventures. Amounts disclosed for Mr. Griffith are also
included in the amounts disclosed for the TCV Funds.
Mr. Griffith disclaims beneficial ownership of any shares
owned directly or indirectly by the TCV Funds.
(8)
Shares beneficially owned by the Blackstone Funds, the TCV Funds
and OEP TP Ltd. have been excluded for purposes of the
presentation of directors and executive officers as a group.
91
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ITEM 13.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
92
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93
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the nature of the related-persons interest in the
transaction;
the material terms of the transaction, including the amount
involved and type of transaction;
the importance of the transaction to the related person and to
us;
whether the transaction would impair the judgment of a director
or executive officer to act in our best interest; and
any other matters the Audit Committee deems appropriate.
94
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ITEM 14.
PRINCIPAL
ACCOUNTING FEES AND SERVICES
95
Table of Contents
ITEM 15.
EXHIBITS,
FINANCIALS STATEMENT SCHEDULES.
ITEM 15(A)(1)
FINANCIAL
STATEMENTS
ITEM 15(A)(3)
EXHIBITS
96
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By:
President, Chief Executive Officer and Director
March 31, 2011
Executive Vice President and Chief Financial Officer
March 31, 2011
Chairman of the Board and Director
March 31, 2011
Director
March 31, 2011
Director
March 31, 2011
97
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Page
F-2
F-3
F-4
F-5
F-7
F-8
F-1
Table of Contents
F-2
Table of Contents
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
(in $ millions) | December 31, 2010 | December 31, 2009 | December 31, 2008 | |||||||||
Net revenue
|
2,290 | 2,248 | 2,527 | |||||||||
Costs and expenses
|
||||||||||||
Cost of revenue
|
1,164 | 1,090 | 1,257 | |||||||||
Selling, general and administrative
|
547 | 567 | 649 | |||||||||
Restructuring charges
|
13 | 19 | 27 | |||||||||
Depreciation and amortization
|
252 | 243 | 263 | |||||||||
Impairment of goodwill and other intangible assets
|
| 833 | | |||||||||
Other (income) expense
|
| (5 | ) | 7 | ||||||||
Total costs and expenses
|
1,976 | 2,747 | 2,203 | |||||||||
Operating income (loss)
|
314 | (499 | ) | 324 | ||||||||
Interest expense, net
|
(272 | ) | (286 | ) | (342 | ) | ||||||
Gain on early extinguishment of debt
|
2 | 10 | 29 | |||||||||
Income (loss) from operations before income taxes and equity
in losses of investment in Orbitz Worldwide
|
44 | (775 | ) | 11 | ||||||||
(Provision) benefit for income taxes
|
(60 | ) | 68 | (43 | ) | |||||||
Equity in losses of investment in Orbitz Worldwide
|
(28 | ) | (162 | ) | (144 | ) | ||||||
Net loss
|
(44 | ) | (869 | ) | (176 | ) | ||||||
Net loss (income) attributable to non-controlling interest in
subsidiaries
|
1 | (2 | ) | (3 | ) | |||||||
Net loss attributable to the Company
|
(43 | ) | (871 | ) | (179 | ) | ||||||
F-3
(in $ millions) | December 31, 2010 | December 31, 2009 | ||||||
Assets
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
242 | 217 | ||||||
Accounts receivable (net of allowances for doubtful accounts of
$35 and $59)
|
348 | 346 | ||||||
Deferred income taxes
|
5 | 22 | ||||||
Other current assets
|
204 | 156 | ||||||
Total current assets
|
799 | 741 | ||||||
Property and equipment, net
|
521 | 452 | ||||||
Goodwill
|
1,277 | 1,285 | ||||||
Trademarks and tradenames
|
413 | 419 | ||||||
Other intangible assets, net
|
1,048 | 1,183 | ||||||
Investment in Orbitz Worldwide
|
91 | 60 | ||||||
Non-current deferred income taxes
|
5 | 2 | ||||||
Other non-current assets
|
346 | 204 | ||||||
Total assets
|
4,500 | 4,346 | ||||||
Liabilities and equity
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
183 | 139 | ||||||
Accrued expenses and other current liabilities
|
809 | 765 | ||||||
Current portion of long-term debt
|
18 | 23 | ||||||
Total current liabilities
|
1,010 | 927 | ||||||
Long-term debt
|
3,796 | 3,640 | ||||||
Deferred income taxes
|
133 | 143 | ||||||
Other non-current liabilities
|
233 | 228 | ||||||
Total liabilities
|
5,172 | 4,938 | ||||||
Commitments and contingencies (Note 16)
|
||||||||
Shareholders equity:
|
||||||||
Common shares $1.00 par value; 12,000 shares
authorized; 12,000 shares issued and outstanding
|
| | ||||||
Additional paid in capital
|
1,011 | 1,006 | ||||||
Accumulated deficit
|
(1,686 | ) | (1,643 | ) | ||||
Accumulated other comprehensive (loss) income
|
(9 | ) | 30 | |||||
Total shareholders equity
|
(684 | ) | (607 | ) | ||||
Equity attributable to non-controlling interest in subsidiaries
|
12 | 15 | ||||||
Total equity
|
(672 | ) | (592 | ) | ||||
Total liabilities and equity
|
4,500 | 4,346 | ||||||
F-4
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
(in $ millions) | December 31, 2010 | December 31, 2009 | December 31, 2008 | |||||||||
Operating activities
|
||||||||||||
Net loss
|
(44 | ) | (869 | ) | (176 | ) | ||||||
Adjustments to reconcile net loss to net cash provided by
operating activities:
|
||||||||||||
Depreciation and amortization
|
252 | 243 | 263 | |||||||||
Impairment of goodwill and other intangible assets
|
| 833 | | |||||||||
(Gain) loss on sale of assets
|
| (5 | ) | 7 | ||||||||
Provision for bad debts
|
2 | 15 | 9 | |||||||||
Equity-based compensation
|
5 | 10 | 1 | |||||||||
Gain on early extinguishment of debt
|
(2 | ) | (10 | ) | (29 | ) | ||||||
Amortization of debt finance costs and debt discount
|
23 | 16 | 20 | |||||||||
(Gain) loss on interest rate derivative instruments
|
(6 | ) | 6 | 28 | ||||||||
(Gain) loss on foreign exchange derivative instruments
|
(3 | ) | (13 | ) | 9 | |||||||
Equity in losses of investment in Orbitz Worldwide
|
28 | 162 | 144 | |||||||||
FASA liability
|
(18 | ) | (26 | ) | (33 | ) | ||||||
Deferred income taxes
|
11 | (118 | ) | (12 | ) | |||||||
Changes in assets and liabilities, net of effects from
acquisitions:
|
||||||||||||
Accounts receivable
|
(6 | ) | 31 | 4 | ||||||||
Other current assets
|
(12 | ) | (4 | ) | (10 | ) | ||||||
Accounts payable, accrued expenses and other current liabilities
|
68 | (20 | ) | (103 | ) | |||||||
Other
|
(14 | ) | (12 | ) | 2 | |||||||
Net cash provided by operating activities
|
284 | 239 | 124 | |||||||||
Investing activities
|
||||||||||||
Property and equipment additions
|
(182 | ) | (58 | ) | (94 | ) | ||||||
Investment in Orbitz Worldwide
|
(50 | ) | | | ||||||||
Businesses acquired
|
(16 | ) | (2 | ) | 4 | |||||||
Loan to parent company
|
(9 | ) | | | ||||||||
Loan repaid by parent company
|
9 | | | |||||||||
Proceeds from sale of assets
|
2 | 5 | 3 | |||||||||
Other
|
5 | | 3 | |||||||||
Net cash used in investing activities
|
(241 | ) | (55 | ) | (84 | ) | ||||||
F-5
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
(in $ millions) | December 31, 2010 | December 31, 2009 | December 31, 2008 | |||||||||
Financing activities
|
||||||||||||
Principal repayments
|
(318 | ) | (307 | ) | (169 | ) | ||||||
Proceeds from new borrowings
|
517 | 144 | 259 | |||||||||
Cash provided as collateral
|
(137 | ) | | | ||||||||
Payments on settlement of derivative contracts
|
(77 | ) | | | ||||||||
Proceeds on settlement of derivative contracts
|
16 | 87 | | |||||||||
Net share settlement for equity-based compensation
|
| (7 | ) | (24 | ) | |||||||
Debt finance costs
|
(20 | ) | (3 | ) | | |||||||
Distribution to a parent company
|
| (227 | ) | (60 | ) | |||||||
Other
|
(3 | ) | (4 | ) | | |||||||
Net cash (used in) provided by financing activities
|
(22 | ) | (317 | ) | 6 | |||||||
Effect of changes in exchange rates on cash and cash equivalents
|
4 | 5 | (10 | ) | ||||||||
Net increase (decrease) in cash and cash equivalents
|
25 | (128 | ) | 36 | ||||||||
Cash and cash equivalents at beginning of year
|
217 | 345 | 309 | |||||||||
Cash and cash equivalents at end of year
|
242 | 217 | 345 | |||||||||
Supplemental disclosure of cash flow information
|
||||||||||||
Interest payments
|
232 | 255 | 296 | |||||||||
Income tax payments, net
|
29 | 46 | 34 |
F-6
Accumulated
|
Non -
|
|||||||||||||||||||||||
Additional
|
Other
|
Controlling
|
||||||||||||||||||||||
Paid in
|
Accumulated
|
Comprehensive
|
Interest in
|
Total
|
||||||||||||||||||||
(in $ millions) | Common Stock | Capital | Deficit | Income (Loss) | Subsidiaries | Equity | ||||||||||||||||||
Balance as of January 1, 2008
|
| 1,317 | (594 | ) | 163 | 4 | 890 | |||||||||||||||||
Distribution to a parent company
|
| (60 | ) | | | | (60 | ) | ||||||||||||||||
Net share settlement for equity-based compensation
|
| (32 | ) | | | | (32 | ) | ||||||||||||||||
Comprehensive income (loss):
|
||||||||||||||||||||||||
Net (loss) income
|
| | (179 | ) | | 3 | (176 | ) | ||||||||||||||||
Currency translation adjustment, net of tax of $0
|
| | | (88 | ) | | (88 | ) | ||||||||||||||||
Unrealized gain on available for sale securities, net of tax $0
|
| | | 3 | | 3 | ||||||||||||||||||
Unrealized loss on equity investment and other, net of tax of $0
|
| | | (11 | ) | | (11 | ) | ||||||||||||||||
Unrealized loss on cash flow hedges, net of tax of $0
|
| | | (14 | ) | | (14 | ) | ||||||||||||||||
Unrecognized actuarial loss on defined benefit plans, net of tax
of $0
|
| | | (93 | ) | | (93 | ) | ||||||||||||||||
Total comprehensive loss
|
(379 | ) | ||||||||||||||||||||||
Balance as of December 31, 2008
|
| 1,225 | (773 | ) | (40 | ) | 7 | 419 | ||||||||||||||||
Distribution to a parent company
|
| (227 | ) | | | | (227 | ) | ||||||||||||||||
Equity-based compensation, net of repurchases
|
| 8 | | | | 8 | ||||||||||||||||||
Businesses acquired
|
| | 1 | | 7 | 8 | ||||||||||||||||||
Dividend to non-controlling interest shareholders
|
| | | | (1 | ) | (1 | ) | ||||||||||||||||
Comprehensive income (loss):
|
||||||||||||||||||||||||
Net (loss) income
|
| | (871 | ) | | 2 | (869 | ) | ||||||||||||||||
Currency translation adjustment, net of tax of $0
|
| | | 33 | | 33 | ||||||||||||||||||
Unrealized gain on cash flow hedges, net of tax of $0
|
| | | 18 | | 18 | ||||||||||||||||||
Defined benefit plan settlement, net of tax of $0
|
| | | 4 | | 4 | ||||||||||||||||||
Unrecognized actuarial gain on defined benefit plans, net of tax
of $0
|
| | | 8 | | 8 | ||||||||||||||||||
Unrealized gain on equity investment and other, net of tax of $0
|
| | | 7 | | 7 | ||||||||||||||||||
Total comprehensive loss
|
(799 | ) | ||||||||||||||||||||||
Balance as of December 31, 2009
|
| 1,006 | (1,643 | ) | 30 | 15 | (592 | ) | ||||||||||||||||
Capital contribution from non-controlling interest shareholders
|
| | | | 1 | 1 | ||||||||||||||||||
Equity-based compensation
|
| 5 | | | | 5 | ||||||||||||||||||
Dividend to non-controlling interest shareholders
|
| | | | (3 | ) | (3 | ) | ||||||||||||||||
Comprehensive income (loss):
|
||||||||||||||||||||||||
Net loss
|
| | (43 | ) | | (1 | ) | (44 | ) | |||||||||||||||
Currency translation adjustment, net of tax of $0
|
| | | (35 | ) | | (35 | ) | ||||||||||||||||
Unrealized gain on cash flow hedges, net of tax of $0
|
| | | 9 | | 9 | ||||||||||||||||||
Unrecognized actuarial loss on defined benefit plans, net of tax
of $0
|
| | | (22 | ) | | (22 | ) | ||||||||||||||||
Unrealized gain on equity investment in Orbitz Worldwide, net of
tax of $0
|
| | | 9 | | 9 | ||||||||||||||||||
Total comprehensive loss
|
(83 | ) | ||||||||||||||||||||||
Balance as of December 31, 2010
|
| 1,011 | (1,686 | ) | (9 | ) | 12 | (672 | ) | |||||||||||||||
F-7
1. | Basis of Presentation |
| The GDS business consists of Travelport GDSs, which provide aggregation, search and transaction processing services to travel suppliers and travel agencies, allowing travel agencies to search, compare, process and book itinerary and pricing options across multiple travel suppliers. Travelports GDS business operates three systems, Galileo, Apollo and Worldspan, providing travel agencies with booking technology and access to supplier inventory that Travelport aggregates from airlines, hotels, car rental companies, rail networks, cruise and tour operators, and destination service providers. Within Travelports GDS business, Travelports Airline IT Solutions business provides hosting solutions and a number of IT services to airlines to enable them to focus on their core business competencies. | |
| The GTA business receives access to accommodation, ground travel, sightseeing and other destination services from travel suppliers at negotiated rates and then distributes this inventory through multiple channels to other travel wholesalers, tour operators and travel agencies, as well as directly to consumers via its affiliate channels. |
2. | Summary of Significant Accounting Policies |
F-8
2. | Summary of Significant Accounting Policies (Continued) |
F-9
2. | Summary of Significant Accounting Policies (Continued) |
F-10
2. | Summary of Significant Accounting Policies (Continued) |
F-11
2. | Summary of Significant Accounting Policies (Continued) |
Level 1 | Valuations based on quoted prices in active markets for identical assets or liabilities that the Company has the ability to access. | |
Level 2 | Valuations based on quoted prices in markets that are not active or for which all significant inputs are observable, either directly or indirectly. | |
Level 3 | Valuations based on inputs that are unobservable and significant to overall fair value measurement. |
F-12
2. | Summary of Significant Accounting Policies (Continued) |
F-13
2. | Summary of Significant Accounting Policies (Continued) |
F-14
2. | Summary of Significant Accounting Policies (Continued) |
F-15
3. | Orbitz Worldwide |
December 31,
|
December 31,
|
|||||||
(in $ millions) | 2010 | 2009 | ||||||
Current assets
|
188 | 170 | ||||||
Non-current assets
|
1,029 | 1,124 | ||||||
Total assets
|
1,217 | 1,294 | ||||||
Current liabilities
|
423 | 419 | ||||||
Non-current liabilities
|
604 | 745 | ||||||
Total liabilities
|
1,027 | 1,164 | ||||||
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Net revenue
|
757 | 738 | 870 | |||||||||
Operating expenses
|
688 | 679 | 811 | |||||||||
Impairment of goodwill, intangibles and long-lived assets
|
81 | 332 | 297 | |||||||||
Operating loss
|
(12 | ) | (273 | ) | (238 | ) | ||||||
Interest expense, net
|
(44 | ) | (57 | ) | (63 | ) | ||||||
Gain on extinguishment of debt
|
| 2 | | |||||||||
Loss before income taxes
|
(56 | ) | (328 | ) | (301 | ) | ||||||
Income tax (provision) benefit
|
(2 | ) | (9 | ) | 2 | |||||||
Net loss
|
(58 | ) | (337 | ) | (299 | ) | ||||||
F-16
3. | Orbitz Worldwide (Continued) |
4. | Impairment of Long-Lived Assets |
F-17
4. | Impairment of Long-Lived Assets (Continued) |
F-18
5. | Intangible Assets |
January 1,
|
December 31,
|
|||||||||||||||
(in $ millions) | 2010 | Additions | Foreign Exchange | 2010 | ||||||||||||
Non-Amortizable
Assets:
|
||||||||||||||||
Goodwill
|
||||||||||||||||
GDS
|
979 | 6 | 1 | 986 | ||||||||||||
GTA
|
306 | 5 | (20 | ) | 291 | |||||||||||
1,285 | 11 | (19 | ) | 1,277 | ||||||||||||
Trademarks and tradenames
|
419 | | (6 | ) | 413 | |||||||||||
Amortizable Intangible Assets:
|
||||||||||||||||
Customer relationships
|
1,564 | 4 | (28 | ) | 1,540 | |||||||||||
Vendor relationships and other
|
51 | 1 | (3 | ) | 49 | |||||||||||
1,615 | 5 | (31 | ) | 1,589 | ||||||||||||
Accumulated amortization
|
(432 | ) | (118 | ) | 9 | (541 | ) | |||||||||
Amortizable intangible assets, net
|
1,183 | (113 | ) | (22 | ) | 1,048 | ||||||||||
F-19
5. | Intangible Assets (Continued) |
January 1,
|
Impairment
|
Foreign
|
December 31,
|
|||||||||||||||||
(in $ millions) | 2009 | Additions | Charge | Exchange | 2009 | |||||||||||||||
Non-Amortizable
Assets:
|
||||||||||||||||||||
Goodwill
|
||||||||||||||||||||
GDS
|
972 | 7 | | | 979 | |||||||||||||||
GTA
|
766 | | (491 | ) | 31 | 306 | ||||||||||||||
1,738 | 7 | (491 | ) | 31 | 1,285 | |||||||||||||||
Trademarks and tradenames
|
499 | | (87 | ) | 7 | 419 | ||||||||||||||
Amortizable Intangible Assets:
|
||||||||||||||||||||
Customer relationships
|
1,796 | | (255 | ) | 23 | 1,564 | ||||||||||||||
Vendor relationships and other
|
50 | 1 | | | 51 | |||||||||||||||
1,846 | 1 | (255 | ) | 23 | 1,615 | |||||||||||||||
Accumulated amortization
|
(294 | ) | (132 | ) | | (6 | ) | (432 | ) | |||||||||||
Amortizable intangible assets, net
|
1,552 | (131 | ) | (255 | ) | 17 | 1,183 | |||||||||||||
Adjustments to
|
||||||||||||||||||||
Intangibles
|
||||||||||||||||||||
January 1,
|
Acquired in
|
Foreign
|
December 31,
|
|||||||||||||||||
(in $ millions) | 2008 | Additions | Prior Periods | Exchange | 2008 | |||||||||||||||
Non-Amortizable
Assets:
|
||||||||||||||||||||
Goodwill
|
||||||||||||||||||||
GDS
|
948 | 1 | 23 | | 972 | |||||||||||||||
GTA
|
809 | | | (43 | ) | 766 | ||||||||||||||
1,757 | 1 | 23 | (43 | ) | 1,738 | |||||||||||||||
Trademarks and tradenames
|
510 | | | (11 | ) | 499 | ||||||||||||||
Amortizable Intangible Assets:
|
||||||||||||||||||||
Customer relationships
|
1,826 | | | (30 | ) | 1,796 | ||||||||||||||
Vendor relationships and other
|
52 | | | (2 | ) | 50 | ||||||||||||||
1,878 | | | (32 | ) | 1,846 | |||||||||||||||
Accumulated amortization
|
(161 | ) | (141 | ) | | 8 | (294 | ) | ||||||||||||
Amortizable intangible assets, net
|
1,717 | (141 | ) | | (24 | ) | 1,552 | |||||||||||||
F-20
5. | Intangible Assets (Continued) |
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Customer relationships
|
116 | 130 | 138 | |||||||||
Vendor relationships and other
|
2 | 2 | 3 | |||||||||
Total*
|
118 | 132 | 141 | |||||||||
* | Included as a component of depreciation and amortization in the Companys consolidated statements of operations. |
6. | Restructuring Charges |
Personnel
|
Facility
|
|||||||||||||||
(in $ millions) | Related | Related | Other | Total | ||||||||||||
Balance as of January 1, 2008
|
8 | | | 8 | ||||||||||||
2007 restructuring plan charges incurred in 2008
|
26 | | 1 | 27 | ||||||||||||
Cash payments made in 2008
|
(25 | ) | | | (25 | ) | ||||||||||
Balance as of December 31, 2008
|
9 | | 1 | 10 | ||||||||||||
2007 restructuring plan charges incurred in 2009
|
18 | 1 | | 19 | ||||||||||||
Cash payments made in 2009
|
(21 | ) | | | (21 | ) | ||||||||||
Balance as of December 31, 2009
|
6 | 1 | 1 | 8 | ||||||||||||
2007 restructuring plan charges incurred in 2010
|
3 | 4 | | 7 | ||||||||||||
2010 restructuring plan charges incurred in 2010
|
6 | | | 6 | ||||||||||||
Cash payments made in 2010
|
(7 | ) | (5 | ) | | (12 | ) | |||||||||
Balance as of December 31, 2010
|
8 | | 1 | 9 | ||||||||||||
F-21
6. | Restructuring Charges (Continued) |
7. | Income Taxes |
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Current
|
||||||||||||
US State
|
| (3 | ) | (3 | ) | |||||||
Non-US
|
(46 | ) | (33 | ) | (40 | ) | ||||||
(46 | ) | (36 | ) | (43 | ) | |||||||
Deferred
|
||||||||||||
US Federal
|
(19 | ) | 13 | (3 | ) | |||||||
US State
|
| | (1 | ) | ||||||||
Non-US
|
8 | 105 | 16 | |||||||||
(11 | ) | 118 | 12 | |||||||||
Non-current
|
||||||||||||
Liabilities for uncertain tax positions
|
(3 | ) | (14 | ) | (12 | ) | ||||||
(Provision) benefit for income taxes
|
(60 | ) | 68 | (43 | ) | |||||||
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
US
|
6 | 36 | 52 | |||||||||
Non-US
|
38 | (811 | ) | (41 | ) | |||||||
Income (loss) from continuing operations before income taxes and
equity in losses of investment in Orbitz Worldwide
|
44 | (775 | ) | 11 | ||||||||
F-22
7. | Income Taxes (Continued) |
December 31,
|
December 31,
|
|||||||
(in $ millions) | 2010 | 2009 | ||||||
Deferred tax assets:
|
||||||||
Accrued liabilities and deferred income
|
49 | 59 | ||||||
Accrued interest
|
| 56 | ||||||
Allowance for doubtful accounts
|
7 | 9 | ||||||
Net operating loss carry forwards and tax credit carry forwards
|
105 | 20 | ||||||
Accumulated other comprehensive income
|
25 | 22 | ||||||
Other assets
|
6 | 6 | ||||||
Less: Valuation allowance
|
(182 | ) | (148 | ) | ||||
Total deferred tax assets
|
10 | 24 | ||||||
Deferred tax liabilities
|
||||||||
Depreciation and amortization
|
(131 | ) | (142 | ) | ||||
Other
|
(2 | ) | (1 | ) | ||||
Total deferred tax liabilities
|
(133 | ) | (143 | ) | ||||
Net deferred tax liability
|
(123 | ) | (119 | ) | ||||
F-23
7. | Income Taxes (Continued) |
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in %) | 2010 | 2009 | 2008 | |||||||||
US Federal statutory rate
|
35.0 | 35.0 | 35.0 | |||||||||
US State and local income taxes, net of federal tax benefits
|
0.8 | (0.4 | ) | 30.8 | ||||||||
Taxes on non-US operations at alternative rates
|
54.0 | (6.8 | ) | 283.7 | ||||||||
Tax benefit resulting from non-US rate change
|
2.3 | | 5.7 | |||||||||
Tax benefit arising from US state rate change
|
| | 4.8 | |||||||||
Liability for uncertain tax positions
|
7.5 | (1.6 | ) | 108.5 | ||||||||
Non-deductible compensation
|
| (0.4 | ) | (84.4 | ) | |||||||
Non-deductible interest
|
| | 5.1 | |||||||||
Non-deductible impairment and amortization
|
| (22.6 | ) | 31.2 | ||||||||
Capitalized consulting costs
|
| | (76.2 | ) | ||||||||
Change in valuation allowance
|
20.7 | 5.1 | 35.5 | |||||||||
Other non-deductible items
|
16.1 | (0.9 | ) | 11.1 | ||||||||
Other
|
| 1.4 | 0.1 | |||||||||
136.4 | 8.8 | 390.9 | ||||||||||
F-24
7. | Income Taxes (Continued) |
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Unrecognized tax benefit opening balance
|
64 | 50 | 53 | |||||||||
Gross increases tax positions in prior periods
|
3 | 9 | 5 | |||||||||
Gross decreases tax positions in prior periods
|
(1 | ) | (6 | ) | (11 | ) | ||||||
Gross increases tax positions in current period
|
1 | 8 | 13 | |||||||||
Settlements
|
(2 | ) | (1 | ) | (2 | ) | ||||||
Increases due to currency translation adjustments
|
| 4 | (8 | ) | ||||||||
Unrecognized tax benefit ending balance
|
65 | 64 | 50 | |||||||||
F-25
8. | Other Current Assets |
December 31,
|
December 31,
|
|||||||
(in $ millions) | 2010 | 2009 | ||||||
Upfront inducement payments and supplier deposits
|
86 | 70 | ||||||
Sales and use tax receivables
|
46 | 48 | ||||||
Prepaid expenses
|
18 | 20 | ||||||
Assets held for sale
|
16 | 2 | ||||||
Derivative assets
|
15 | 1 | ||||||
Deferred costs
|
| 10 | ||||||
Other
|
23 | 5 | ||||||
204 | 156 | |||||||
9. | Property and Equipment, Net |
December 31, 2010 | December 31, 2009 | |||||||||||||||||||||||
Accumulated
|
Accumulated
|
|||||||||||||||||||||||
(in $ millions) | Cost | depreciation | Net | Cost | depreciation | Net | ||||||||||||||||||
Land
|
| | | 4 | | 4 | ||||||||||||||||||
Capitalized software
|
611 | (283 | ) | 328 | 455 | (182 | ) | 273 | ||||||||||||||||
Furniture, fixtures and equipment
|
244 | (143 | ) | 101 | 230 | (129 | ) | 101 | ||||||||||||||||
Building and leasehold improvements
|
24 | (11 | ) | 13 | 48 | (20 | ) | 28 | ||||||||||||||||
Construction in progress
|
79 | | 79 | 46 | | 46 | ||||||||||||||||||
958 | (437 | ) | 521 | 783 | (331 | ) | 452 | |||||||||||||||||
F-26
10. | Other Non-Current Assets |
December 31,
|
December 31,
|
|||||||
(in $ millions) | 2010 | 2009 | ||||||
Restricted cash
|
137 | 5 | ||||||
Development advances
|
116 | 87 | ||||||
Deferred financing costs
|
37 | 42 | ||||||
Pension assets
|
17 | 14 | ||||||
Derivative assets
|
5 | 18 | ||||||
Avis Budget tax receivable
|
| 7 | ||||||
Other
|
34 | 31 | ||||||
346 | 204 | |||||||
11. | Accrued Expenses and Other Current Liabilities |
December 31,
|
December 31,
|
|||||||
(in $ millions) | 2010 | 2009 | ||||||
Accrued commissions and incentives
|
255 | 197 | ||||||
Accrued travel supplier payments, deferred revenue and customer
advances
|
217 | 206 | ||||||
Accrued interest expense
|
61 | 41 | ||||||
Accrued sales and use tax
|
59 | 75 | ||||||
Accrued payroll and related
|
44 | 63 | ||||||
Accrued sponsor monitoring fees
|
42 | 49 | ||||||
Derivative contracts
|
35 | 43 | ||||||
Other
|
96 | 91 | ||||||
809 | 765 | |||||||
F-27
12. | Long-Term Debt |
December 31,
|
December 31,
|
|||||||||
(in $ millions) | Maturity | 2010 | 2009 | |||||||
Senior Secured Credit Agreement
|
||||||||||
Term loan facility
|
||||||||||
Dollar denominated
|
August 2013 | 172 | 1,846 | |||||||
Euro denominated
|
August 2013 | 59 | 501 | |||||||
Dollar denominated
|
August 2015 | 1,520 | | |||||||
Euro denominated
|
August 2015 | 410 | | |||||||
Tranche S
|
August 2015 | 137 | | |||||||
Senior notes
|
||||||||||
Dollar denominated floating rate notes
|
September 2014 | 123 | 143 | |||||||
Euro denominated floating rate notes
|
September 2014 | 217 | 232 | |||||||
9
7
/
8
%
Dollar denominated notes
|
September 2014 | 443 | 443 | |||||||
9% Dollar denominated notes
|
March 2016 | 250 | | |||||||
Senior subordinated notes
|
||||||||||
11
7
/
8
%
Dollar denominated notes
|
September 2016 | 247 | 247 | |||||||
10
7
/
8
%
Euro denominated notes
|
September 2016 | 187 | 201 | |||||||
Capital leases and other
|
49 | 50 | ||||||||
Total debt
|
3,814 | 3,663 | ||||||||
Less: current portion
|
18 | 23 | ||||||||
Long-term debt
|
3,796 | 3,640 | ||||||||
F-28
12. | Long-Term Debt (Continued) |
F-29
12. | Long-Term Debt (Continued) |
F-30
12. | Long-Term Debt (Continued) |
(in $ millions) | ||||
2011
|
18 | |||
2012
|
18 | |||
2013
|
246 | |||
2014
|
801 | |||
2015
|
2,031 | |||
Thereafter
|
700 | |||
3,814 | ||||
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Deferred financing costs at beginning of year
|
42 | 55 | 75 | |||||||||
Payment of debt finance costs
|
12 | 3 | | |||||||||
Amortization
|
(17 | ) | (16 | ) | (20 | ) | ||||||
Deferred financing costs at end of year
|
37 | 42 | 55 | |||||||||
F-31
12. | Long-Term Debt (Continued) |
13. | Other Non-Current Liabilities |
December 31,
|
December 31,
|
|||||||
(in $ millions) | 2010 | 2009 | ||||||
Pension liabilities
|
121 | 106 | ||||||
Income tax payable
|
63 | 62 | ||||||
Derivative liabilities
|
6 | 13 | ||||||
FASA liability
|
5 | 18 | ||||||
Other
|
38 | 29 | ||||||
233 | 228 | |||||||
14. | Financial Instruments |
F-32
14. | Financial Instruments (Continued) |
F-33
14. | Financial Instruments (Continued) |
Fair Value Asset
|
Fair Value Asset
|
|||||||||||||||||||
(Liability) | (Liability) | |||||||||||||||||||
Balance Sheet
|
December 31,
|
December 31,
|
Balance Sheet
|
December 31,
|
December 31,
|
|||||||||||||||
(in $ millions) | Location | 2010 | 2009 | Location | 2010 | 2009 | ||||||||||||||
Derivatives designated as hedging instruments:
|
||||||||||||||||||||
Interest rate swaps
|
Accrued expenses and other current liabilities | | (8 | ) | ||||||||||||||||
Interest rate swaps
|
Other non-current assets | | (5 | ) | Other non-current liabilities | | (3 | ) | ||||||||||||
Foreign currency impact of cross currency swaps
|
Other non-current assets | | 23 | |||||||||||||||||
Foreign currency forward contacts
|
Accrued expenses and other current liabilities | | (4 | ) | ||||||||||||||||
| 18 | | (15 | ) | ||||||||||||||||
Derivatives not designated as hedging instruments:
|
||||||||||||||||||||
Interest rate swaps
|
Other current assets | (3 | ) | | Accrued expenses and other current liabilities | (32 | ) | (25 | ) | |||||||||||
Interest rate swaps
|
Other non-current liabilities | (4 | ) | (10 | ) | |||||||||||||||
Foreign currency impact of cross currency swaps
|
Other current assets | 8 | | |||||||||||||||||
Foreign currency forward contracts
|
Other current assets | 10 | 1 | Accrued expenses and other current liabilities | (3 | ) | (6 | ) | ||||||||||||
Foreign currency forward contracts
|
Other non-current assets | 5 | | Other non-current liabilities | (2 | ) | | |||||||||||||
20 | 1 | (41 | ) | (41 | ) | |||||||||||||||
Total fair value of derivative assets (liabilities)
|
20 | 19 | (41 | ) | (56 | ) | ||||||||||||||
F-34
14. | Financial Instruments (Continued) |
Amount of Gain (Loss) Recognized
|
||||||||||||||||
in Other
|
Amount of Gain (Loss)
|
|||||||||||||||
Comprehensive
|
Recorded
|
|||||||||||||||
Income (Loss) | into Income (Loss) | |||||||||||||||
Year Ended
|
Year Ended
|
Year Ended
|
Year Ended
|
|||||||||||||
December 31,
|
December 31,
|
Location of Gain (Loss)
|
December 31,
|
December 31,
|
||||||||||||
(in $ millions) | 2010 | 2009 | Recorded in Income (Loss) | 2010 | 2009 | |||||||||||
Derivatives designated as hedging instruments:
|
||||||||||||||||
Interest rate swaps
|
(4 | ) | 9 | Interest expense, net | (10 | ) | (13 | ) | ||||||||
Foreign exchange impact of cross currency swaps
|
(15 | ) | 26 | Selling, general and administrative | (15 | ) | 26 | |||||||||
Foreign exchange forward contracts
|
(9 | ) | (4) | Selling, general and administrative | (12 | ) | | |||||||||
Derivatives not designated as hedging instruments:
|
||||||||||||||||
Interest rate swaps
|
Interest expense, net | (22 | ) | (30 | ) | |||||||||||
Foreign exchange forward contracts
|
Selling, general and administrative | (50 | ) | 9 | ||||||||||||
(109 | ) | (8 | ) | |||||||||||||
15. | Fair values of financial instruments and non-financial assets |
F-35
15. | Fair values of financial instruments and non-financial assets (Continued) |
December 31, 2010 | December 31, 2009 | |||||||||||||||
Carrying
|
Carrying
|
|||||||||||||||
(in $ millions) | Amount | Fair Value | Amount | Fair Value | ||||||||||||
Asset (liability)
|
||||||||||||||||
Investment in Orbitz Worldwide
|
91 | 273 | 60 | 292 | ||||||||||||
Derivative assets (see above)
|
20 | 20 | 19 | 19 | ||||||||||||
Derivative liabilities (see above)
|
(41 | ) | (41 | ) | (56 | ) | (56 | ) | ||||||||
Total debt
|
(3,814 | ) | (3,644 | ) | (3,663 | ) | (3,526 | ) |
Fair Value as of
|
||||||||
September 30,
|
||||||||
2009
|
||||||||
Measured Using
|
||||||||
Significant
|
Total Losses for
|
|||||||
Unobservable Inputs
|
Year Ended
|
|||||||
(in $ millions) | (Level 3) | December 31, 2009 | ||||||
Goodwill
|
312 | (491 | ) | |||||
Trademarks and tradenames
|
108 | (87 | ) | |||||
Other intangible assets, net
|
295 | (255 | ) |
F-36
16. | Commitments and Contingencies |
(in $ millions) | ||||
2011
|
20 | |||
2012
|
19 | |||
2013
|
16 | |||
2014
|
13 | |||
2015
|
9 | |||
Thereafter
|
22 | |||
99 | ||||
F-37
16. | Commitments and Contingencies (Continued) |
17. | Equity |
F-38
17. | Equity (Continued) |
Unrecognized
|
||||||||||||||||||||||||
Unrealized
|
Unrealized
|
Actuarial
|
Unrealized
|
Accumulated
|
||||||||||||||||||||
Currency
|
Gain (Loss) on
|
Gain (Loss)
|
Gain (Loss)
|
Gain (Loss)
|
Other
|
|||||||||||||||||||
Translation
|
Available for
|
on Cash Flow
|
on Defined
|
on Equity
|
Comprehensive
|
|||||||||||||||||||
(in $ millions) | Adjustments | Sale Securities | Hedges | Benefit Plans | Investment | Income (Loss) | ||||||||||||||||||
Balance as of January 1, 2008
|
163 | (1 | ) | (22 | ) | 34 | (11 | ) | 163 | |||||||||||||||
Activity during period, net of tax
|
(88 | ) | 3 | (14 | ) | (93 | ) | (11 | ) | (203 | ) | |||||||||||||
Balance as of December 31, 2008
|
75 | 2 | (36 | ) | (59 | ) | (22 | ) | (40 | ) | ||||||||||||||
Activity during period, net of tax
|
33 | | 18 | 12 | 7 | 70 | ||||||||||||||||||
Balance as of December 31, 2009
|
108 | 2 | (18 | ) | (47 | ) | (15 | ) | 30 | |||||||||||||||
Activity during period, net of tax
|
(35 | ) | | 9 | (22 | ) | 9 | (39 | ) | |||||||||||||||
Balance as of December 31, 2010
|
73 | 2 | (9 | ) | (69 | ) | (6 | ) | (9 | ) | ||||||||||||||
18. | Equity-Based Compensation |
F-39
18. | Equity-Based Compensation (Continued) |
Restricted Equity Units | ||||||||
Class A-2 | ||||||||
Weighted
|
||||||||
Average
|
||||||||
Number
|
Grant Date
|
|||||||
of Shares | Fair Value | |||||||
Balance as of January 1, 2008
|
110.0 | $ | 2.10 | |||||
Granted at fair market value
|
1.3 | $ | 1.96 | |||||
Net share settlement
|
(29.1 | ) | $ | 1.13 | ||||
Forfeited
|
(0.1 | ) | $ | 1.96 | ||||
Balance as of December 31, 2008
|
82.1 | $ | 2.44 | |||||
Granted at fair market value
|
8.2 | $ | 1.10 | |||||
Net share settlement and repurchases
|
(0.2 | ) | $ | 2.24 | ||||
Forfeited
|
(0.1 | ) | $ | 1.96 | ||||
Balance as of December 31, 2009
|
90.0 | $ | 2.32 | |||||
Granted at fair market value
|
11.0 | $ | 1.12 | |||||
Forfeited
|
(1.5 | ) | $ | 1.26 | ||||
Balance as of December 31, 2010
|
99.5 | $ | 2.20 | |||||
F-40
19. | Employee Benefit Plans |
F-41
19. | Employee Benefit Plans (Continued) |
Defined Benefit Pension Plans | ||||||||||||
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Benefit obligation, beginning of year
|
475 | 456 | 460 | |||||||||
Service cost
|
| 1 | 1 | |||||||||
Interest cost
|
27 | 27 | 28 | |||||||||
Actuarial loss (gain)
|
38 | 27 | (3 | ) | ||||||||
Net benefits paid
|
(22 | ) | (15 | ) | (25 | ) | ||||||
Defined benefit plan
settlement
(a)
|
| (29 | ) | | ||||||||
Currency translation adjustment and other
|
(2 | ) | 8 | (5 | ) | |||||||
Benefit obligation, end of year
|
516 | 475 | 456 | |||||||||
Fair value of plan assets, beginning of year
|
395 | 363 | 465 | |||||||||
Return on plan assets
|
49 | 59 | (76 | ) | ||||||||
Employer contribution
|
3 | 3 | 6 | |||||||||
Net benefits paid
|
(22 | ) | (15 | ) | (25 | ) | ||||||
Defined benefit plan
settlement
(a)
|
| (21 | ) | | ||||||||
Currency translation adjustment and other
|
(1 | ) | 6 | (7 | ) | |||||||
Fair value of plan assets, end of year
|
424 | 395 | 363 | |||||||||
Funded status
|
(92 | ) | (80 | ) | (93 | ) | ||||||
(a) | During the year ended December 31, 2009, the Company settled two defined benefit pension plans for a cash payment of $2 million. |
Post-Retirement Benefit Plan | ||||||||||||
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Benefit obligation, beginning of year
|
12 | 17 | 36 | |||||||||
Interest cost
|
1 | 1 | 2 | |||||||||
Actuarial gains
|
| (3 | ) | (4 | ) | |||||||
Net benefits paid
|
(1 | ) | (3 | ) | (3 | ) | ||||||
Plan amendment
|
| | (14 | ) | ||||||||
Benefit obligation, end of year
|
12 | 12 | 17 | |||||||||
Fair value of plan assets, beginning of year
|
| | | |||||||||
Employer contributions
|
1 | 3 | 3 | |||||||||
Net benefits paid
|
(1 | ) | (3 | ) | (3 | ) | ||||||
Fair value of plan assets, end of year
|
| | | |||||||||
Funded status
|
(12 | ) | (12 | ) | (17 | ) | ||||||
F-42
19. | Employee Benefit Plans (Continued) |
Defined Benefit Pension Plans | ||||||||||||
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Service cost
|
| 1 | 1 | |||||||||
Interest cost
|
27 | 27 | 28 | |||||||||
Expected return on plan assets
|
(28 | ) | (25 | ) | (35 | ) | ||||||
Recognized net actuarial loss
|
2 | 5 | | |||||||||
Net periodic benefit cost (gain)
|
1 | 8 | (6 | ) | ||||||||
Post-Retirement Benefit Plan | ||||||||||||
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Interest cost
|
1 | 1 | 2 | |||||||||
Amortization of prior service cost
|
(6 | ) | (5 | ) | | |||||||
Recognized net actuarial gain
|
(1 | ) | (2 | ) | (1 | ) | ||||||
Net periodic benefit (gain) cost
|
(6 | ) | (6 | ) | 1 | |||||||
F-43
19. | Employee Benefit Plans (Continued) |
Pension Plan Assets | ||||||||||||
($ in millions) | Level 1 | Level 2 | Total | |||||||||
Common & commingled trust funds
|
| 407 | 407 | |||||||||
Mutual funds
|
12 | | 12 | |||||||||
Money market funds
|
| 5 | 5 | |||||||||
Total
|
12 | 412 | 424 | |||||||||
Pension Plan Assets | ||||||||||||
($ in millions) | Level 1 | Level 2 | Total | |||||||||
Common & commingled trust funds
|
| 375 | 375 | |||||||||
Mutual funds
|
10 | | 10 | |||||||||
Money market funds
|
| 10 | 10 | |||||||||
Total
|
10 | 385 | 395 | |||||||||
Defined Benefit
|
Post-Retirement
|
|||||||
(in $ millions) | Pension Plans | Benefit Plan | ||||||
2011
|
23 | 1 | ||||||
2012
|
23 | 1 | ||||||
2013
|
24 | 1 | ||||||
2014
|
24 | 1 | ||||||
2015
|
25 | 1 | ||||||
Five years thereafter
|
145 | 3 | ||||||
264 | 8 | |||||||
F-44
20. | Segment Information |
Year Ended
|
Year Ended
|
Year Ended
|
||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
GDS
|
||||||||||||
Net revenue
|
1,996 | 1,981 | 2,171 | |||||||||
Segment EBITDA
|
560 | 602 | 591 | |||||||||
GTA
|
||||||||||||
Net revenue
|
294 | 267 | 356 | |||||||||
Segment EBITDA
|
82 | (776 | ) | 110 | ||||||||
Combined totals
|
||||||||||||
Net revenue
|
2,290 | 2,248 | 2,527 | |||||||||
Segment EBITDA
|
642 | (174 | ) | 701 | ||||||||
Reconciling items:
|
||||||||||||
Corporate and
unallocated
(a)
|
(76 | ) | (82 | ) | (114 | ) | ||||||
Gain on early extinguishment of debt
|
2 | 10 | 29 | |||||||||
Interest expense, net
|
(272 | ) | (286 | ) | (342 | ) | ||||||
Depreciation and amortization
|
(252 | ) | (243 | ) | (263 | ) | ||||||
Income (loss) from operations before income taxes and equity
in losses of investment in Orbitz Worldwide
|
44 | (775 | ) | 11 | ||||||||
(a) | Corporate and unallocated includes corporate general and administrative costs not allocated to the segments, such as treasury, legal and human resources and other costs that are managed at the corporate level, including company-wide equity-based compensation plans and the impact of foreign exchange derivative contracts. |
F-45
20. | Segment Information (Continued) |
December 31,
|
December 31,
|
December 31,
|
||||||||||
(in $ million) | 2010 | 2009 | 2008 | |||||||||
GDS
|
3,062 | 3,007 | 3,019 | |||||||||
GTA
|
1,066 | 1,089 | 1,907 | |||||||||
Total segment assets
|
4,128 | 4,096 | 4,926 | |||||||||
Reconciling items: corporate and unallocated
|
372 | 250 | 644 | |||||||||
Total
|
4,500 | 4,346 | 5,570 | |||||||||
United
|
United
|
All Other
|
||||||||||||||
(in $ millions) | States | Kingdom | Countries | Total | ||||||||||||
Net Revenue
|
||||||||||||||||
Year ended December 31, 2010
|
883 | 157 | 1,250 | 2,290 | ||||||||||||
Year ended December 31, 2009
|
877 | 135 | 1,236 | 2,248 | ||||||||||||
Year ended December 31, 2008
|
1,044 | 155 | 1,328 | 2,527 | ||||||||||||
Long-Lived Assets (excluding financial instruments and
deferred tax assets)
|
||||||||||||||||
As of December 31, 2010
|
1,890 | 812 | 989 | 3,691 | ||||||||||||
As of December 31, 2009
|
1,711 | 843 | 1,031 | 3,585 | ||||||||||||
As of December 31, 2008
|
2,090 | 1,661 | 894 | 4,645 |
21. | Related Party Transactions |
F-46
21. | Related Party Transactions (Continued) |
22. | Subsequent Events |
23. | Guarantor and Non-Guarantor Financial Statements |
F-47
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Net revenue
|
| | | 908 | 1,382 | | 2,290 | |||||||||||||||||||||
Costs and expenses
|
||||||||||||||||||||||||||||
Cost of revenue
|
| | | 564 | 600 | | 1,164 | |||||||||||||||||||||
Selling, general and administrative
|
9 | | 5 | 61 | 472 | | 547 | |||||||||||||||||||||
Restructuring charges
|
| | | 9 | 4 | | 13 | |||||||||||||||||||||
Depreciation and amortization
|
| | | 179 | 73 | | 252 | |||||||||||||||||||||
Total costs and expenses
|
9 | | 5 | 813 | 1,149 | | 1,976 | |||||||||||||||||||||
Operating (loss) income
|
(9 | ) | | (5 | ) | 95 | 233 | | 314 | |||||||||||||||||||
Interest expense, net
|
| | (267 | ) | (5 | ) | | | (272 | ) | ||||||||||||||||||
Gain on early extinguishment of debt
|
| | 2 | | | | 2 | |||||||||||||||||||||
Equity in (losses) earnings of subsidiaries
|
(34 | ) | (195 | ) | 75 | | | 154 | | |||||||||||||||||||
(Loss) income before income taxes and equity in losses of
investment in Orbitz Worldwide
|
(43 | ) | (195 | ) | (195 | ) | 90 | 233 | 154 | 44 | ||||||||||||||||||
Benefit (provision) for income taxes
|
| 5 | | (15 | ) | (50 | ) | | (60 | ) | ||||||||||||||||||
Equity in losses of investment in Orbitz Worldwide
|
| (28 | ) | | | | | (28 | ) | |||||||||||||||||||
Net (loss) income
|
(43 | ) | (218 | ) | (195 | ) | 75 | 183 | 154 | (44 | ) | |||||||||||||||||
Net loss attributable to non-controlling interest in subsidiaries
|
| | | | 1 | 1 | ||||||||||||||||||||||
Net (loss) income attributable to the Company
|
(43 | ) | (218 | ) | (195 | ) | 75 | 184 | 154 | (43 | ) | |||||||||||||||||
F-48
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Net revenue
|
| | | 1,036 | 1,212 | | 2,248 | |||||||||||||||||||||
Costs and expenses
|
||||||||||||||||||||||||||||
Cost of revenue
|
| | | 588 | 502 | | 1,090 | |||||||||||||||||||||
Selling, general and administrative
|
(9 | ) | | 5 | 145 | 426 | | 567 | ||||||||||||||||||||
Restructuring charges
|
| | | 14 | 5 | | 19 | |||||||||||||||||||||
Depreciation and amortization
|
| | | 162 | 81 | | 243 | |||||||||||||||||||||
Impairment of goodwill and intangible assets
|
| | | | 833 | | 833 | |||||||||||||||||||||
Other income
|
| | | (5 | ) | | | (5 | ) | |||||||||||||||||||
Total costs and expenses
|
(9 | ) | | 5 | 904 | 1,847 | | 2,747 | ||||||||||||||||||||
Operating income (loss)
|
9 | | (5 | ) | 132 | (635 | ) | | (499 | ) | ||||||||||||||||||
Interest expense, net
|
(2 | ) | | (276 | ) | (8 | ) | | | (286 | ) | |||||||||||||||||
Gain on early extinguishment of debt
|
| | 10 | | | | 10 | |||||||||||||||||||||
Equity in (losses) earnings of subsidiaries
|
(878 | ) | (134 | ) | 137 | | | 875 | | |||||||||||||||||||
(Loss) income before income taxes and equity in losses of
investment in Orbitz Worldwide
|
(871 | ) | (134 | ) | (134 | ) | 124 | (635 | ) | 875 | (775 | ) | ||||||||||||||||
(Provision) benefit for income taxes
|
| (3 | ) | | 13 | 58 | | 68 | ||||||||||||||||||||
Equity in losses of investment in Orbitz Worldwide
|
| (162 | ) | | | | | (162 | ) | |||||||||||||||||||
Net (loss) income
|
(871 | ) | (299 | ) | (134 | ) | 137 | (577 | ) | 875 | (869 | ) | ||||||||||||||||
Net income attributable to non-controlling interest in
subsidiaries
|
| | | | (2 | ) | | (2 | ) | |||||||||||||||||||
Net (loss) income attributable to the Company
|
(871 | ) | (299 | ) | (134 | ) | 137 | (579 | ) | 875 | (871 | ) | ||||||||||||||||
F-49
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Net revenue
|
| | | 1,108 | 1,419 | | 2,527 | |||||||||||||||||||||
Costs and expenses
|
||||||||||||||||||||||||||||
Cost of revenue
|
| | | 576 | 681 | | 1,257 | |||||||||||||||||||||
Selling, general and administrative
|
6 | | (8 | ) | 266 | 385 | | 649 | ||||||||||||||||||||
Restructuring charges
|
| | | 18 | 9 | | 27 | |||||||||||||||||||||
Depreciation and amortization
|
| | | 183 | 80 | | 263 | |||||||||||||||||||||
Other expense
|
| | | 6 | 1 | | 7 | |||||||||||||||||||||
Total costs and expenses
|
6 | | (8 | ) | 1,049 | 1,156 | | 2,203 | ||||||||||||||||||||
Operating (loss) income
|
(6 | ) | | 8 | 59 | 263 | | 324 | ||||||||||||||||||||
Interest expense, net
|
| | (328 | ) | (14 | ) | | | (342 | ) | ||||||||||||||||||
Gain on early extinguishment of debt
|
| | 29 | | | | 29 | |||||||||||||||||||||
Equity in (losses) earnings of subsidiaries
|
(173 | ) | (256 | ) | 35 | | | 394 | | |||||||||||||||||||
(Loss) income before income taxes and equity in losses of
investment in Orbitz Worldwide
|
(179 | ) | (256 | ) | (256 | ) | 45 | 263 | 394 | 11 | ||||||||||||||||||
Provision for income taxes
|
| | | (10 | ) | (33 | ) | | (43 | ) | ||||||||||||||||||
Equity in losses of investment in Orbitz Worldwide
|
| (144 | ) | | | | | (144 | ) | |||||||||||||||||||
Net (loss) income
|
(179 | ) | (400 | ) | (256 | ) | 35 | 230 | 394 | (176 | ) | |||||||||||||||||
Net income attributable to non-controlling interest in
subsidiaries
|
| | | | (3 | ) | | (3 | ) | |||||||||||||||||||
Net (loss) income attributable to the Company
|
(179 | ) | (400 | ) | (256 | ) | 35 | 227 | 394 | (179 | ) | |||||||||||||||||
F-50
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Assets
|
||||||||||||||||||||||||||||
Current assets:
|
||||||||||||||||||||||||||||
Cash and cash equivalents
|
| | 36 | 2 | 204 | | 242 | |||||||||||||||||||||
Accounts receivable, net
|
| | | 61 | 287 | | 348 | |||||||||||||||||||||
Deferred income taxes
|
| | | | 5 | | 5 | |||||||||||||||||||||
Other current assets
|
| | 36 | 42 | 126 | | 204 | |||||||||||||||||||||
Total current assets
|
| | 72 | 105 | 622 | | 799 | |||||||||||||||||||||
Investment in subsidiary/intercompany
|
(683 | ) | (1,755 | ) | 1,862 | | | 576 | | |||||||||||||||||||
Property and equipment, net
|
| | | 401 | 120 | | 521 | |||||||||||||||||||||
Goodwill
|
| | | 986 | 291 | | 1,277 | |||||||||||||||||||||
Trademarks and tradenames
|
| | | 232 | 181 | | 413 | |||||||||||||||||||||
Other intangible assets, net
|
| | | 455 | 593 | | 1,048 | |||||||||||||||||||||
Investment in Orbitz Worldwide
|
| 91 | | | | | 91 | |||||||||||||||||||||
Non-current deferred income taxes
|
| | | | 5 | | 5 | |||||||||||||||||||||
Other non-current assets
|
| | 180 | 43 | 123 | | 346 | |||||||||||||||||||||
Total assets
|
(683 | ) | (1,664 | ) | 2,114 | 2,222 | 1,935 | 576 | 4,500 | |||||||||||||||||||
Liabilities and shareholders equity
|
||||||||||||||||||||||||||||
Current liabilities:
|
||||||||||||||||||||||||||||
Accounts payable
|
| | | 37 | 146 | | 183 | |||||||||||||||||||||
Accrued expenses and other current liabilities
|
1 | 41 | 92 | 92 | 583 | | 809 | |||||||||||||||||||||
Current portion of long-term debt
|
| | 10 | 8 | | | 18 | |||||||||||||||||||||
Total current liabilities
|
1 | 41 | 102 | 137 | 729 | | 1,010 | |||||||||||||||||||||
Long-term debt
|
| | 3,755 | 41 | | | 3,796 | |||||||||||||||||||||
Deferred income taxes
|
| | | 36 | 97 | | 133 | |||||||||||||||||||||
Other non-current liabilities
|
| | 12 | 146 | 75 | | 233 | |||||||||||||||||||||
Total liabilities
|
1 | 41 | 3,869 | 360 | 901 | | 5,172 | |||||||||||||||||||||
Total shareholders equity/intercompany
|
(684 | ) | (1,705 | ) | (1,755 | ) | 1,862 | 1,022 | 576 | (684 | ) | |||||||||||||||||
Equity attributable to non-controlling interest in subsidiaries
|
| | | | 12 | | 12 | |||||||||||||||||||||
Total equity
|
(684 | ) | (1,705 | ) | (1,755 | ) | 1,862 | 1,034 | 576 | (672 | ) | |||||||||||||||||
Total liabilities and equity
|
(683 | ) | (1,664 | ) | 2,114 | 2,222 | 1,935 | 576 | 4,500 | |||||||||||||||||||
F-51
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Assets
|
||||||||||||||||||||||||||||
Current assets:
|
||||||||||||||||||||||||||||
Cash and cash equivalents
|
| | | 38 | 179 | | 217 | |||||||||||||||||||||
Accounts receivable, net
|
| | | 77 | 269 | | 346 | |||||||||||||||||||||
Deferred income taxes
|
| | | 16 | 6 | | 22 | |||||||||||||||||||||
Other current assets
|
1 | | 2 | 45 | 108 | | 156 | |||||||||||||||||||||
Total current assets
|
1 | | 2 | 176 | 562 | | 741 | |||||||||||||||||||||
Investment in subsidiary/intercompany
|
(608 | ) | (1,667 | ) | 1,991 | | | 284 | | |||||||||||||||||||
Property and equipment, net
|
| | | 319 | 133 | | 452 | |||||||||||||||||||||
Goodwill
|
| | | 985 | 300 | | 1,285 | |||||||||||||||||||||
Trademarks and tradenames
|
| | | 232 | 187 | | 419 | |||||||||||||||||||||
Other intangible assets, net
|
| | | 535 | 648 | | 1,183 | |||||||||||||||||||||
Investment in Orbitz Worldwide
|
| 60 | | | | | 60 | |||||||||||||||||||||
Non-current deferred income taxes
|
| | | | 2 | | 2 | |||||||||||||||||||||
Other non-current assets
|
4 | | 45 | 71 | 84 | | 204 | |||||||||||||||||||||
Total assets
|
(603 | ) | (1,607 | ) | 2,038 | 2,318 | 1,916 | 284 | 4,346 | |||||||||||||||||||
Liabilities and shareholders equity
|
||||||||||||||||||||||||||||
Current liabilities:
|
||||||||||||||||||||||||||||
Accounts payable
|
| | | 27 | 112 | | 139 | |||||||||||||||||||||
Accrued expenses and other current liabilities
|
4 | 35 | 78 | 84 | 564 | | 765 | |||||||||||||||||||||
Current portion of long-term debt
|
| | 12 | 11 | | | 23 | |||||||||||||||||||||
Total current liabilities
|
4 | 35 | 90 | 122 | 676 | | 927 | |||||||||||||||||||||
Long-term debt
|
| | 3,601 | 39 | | | 3,640 | |||||||||||||||||||||
Deferred income taxes
|
| | | 33 | 110 | | 143 | |||||||||||||||||||||
Other non-current liabilities
|
| | 14 | 133 | 81 | | 228 | |||||||||||||||||||||
Total liabilities
|
4 | 35 | 3,705 | 327 | 867 | | 4,938 | |||||||||||||||||||||
Total shareholders equity/intercompany
|
(607 | ) | (1,642 | ) | (1,667 | ) | 1,991 | 1,034 | 284 | (607 | ) | |||||||||||||||||
Equity attributable to non-controlling interest in subsidiaries
|
| | | | 15 | | 15 | |||||||||||||||||||||
Total equity
|
(607 | ) | (1,642 | ) | (1,667 | ) | 1,991 | 1,049 | 284 | (592 | ) | |||||||||||||||||
Total liabilities and equity
|
(603 | ) | (1,607 | ) | 2,038 | 2,318 | 1,916 | 284 | 4,346 | |||||||||||||||||||
F-52
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Operating activities
|
||||||||||||||||||||||||||||
Net (loss) income
|
(43 | ) | (218 | ) | (195 | ) | 75 | 183 | 154 | (44 | ) | |||||||||||||||||
Adjustments to reconcile net loss to net cash provided by
operating activities:
|
||||||||||||||||||||||||||||
Depreciation and amortization
|
| | | 179 | 73 | | 252 | |||||||||||||||||||||
Provision for bad debts
|
| | | | 2 | | 2 | |||||||||||||||||||||
Equity-based compensation
|
5 | | | | | | 5 | |||||||||||||||||||||
Gain on early extinguishment of debt
|
| | (2 | ) | | | | (2 | ) | |||||||||||||||||||
Amortization of debt finance costs and debt discount
|
| | 23 | | | | 23 | |||||||||||||||||||||
Gain on interest rate derivative instruments
|
| | (6 | ) | | | | (6 | ) | |||||||||||||||||||
Gain on foreign exchange derivative instruments
|
| | (3 | ) | | | | (3 | ) | |||||||||||||||||||
Equity in losses of investment in Orbitz Worldwide
|
| 28 | | | | | 28 | |||||||||||||||||||||
FASA liability
|
| | | (18 | ) | | | (18 | ) | |||||||||||||||||||
Deferred income taxes
|
| | | 19 | (8 | ) | | 11 | ||||||||||||||||||||
Equity in losses (earnings) of subsidiaries
|
34 | 195 | (75 | ) | | | (154 | ) | | |||||||||||||||||||
Changes in assets and liabilities, net of effects from
acquisitions:
|
||||||||||||||||||||||||||||
Accounts receivable
|
| | | 16 | (22 | ) | | (6 | ) | |||||||||||||||||||
Other current assets
|
| | | 3 | (15 | ) | | (12 | ) | |||||||||||||||||||
Accounts payable, accrued expenses and other current liabilities
|
| 6 | 19 | 18 | 25 | | 68 | |||||||||||||||||||||
Other
|
| | 13 | (5 | ) | (22 | ) | | (14 | ) | ||||||||||||||||||
Net cash (used in) provided by operating activities
|
(4 | ) | 11 | (226 | ) | 287 | 216 | | 284 | |||||||||||||||||||
F-53
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Investing activities
|
||||||||||||||||||||||||||||
Property and equipment additions
|
| | | (173 | ) | (9 | ) | | (182 | ) | ||||||||||||||||||
Investment in Orbitz Worldwide
|
| (50 | ) | | | | | (50 | ) | |||||||||||||||||||
Businesses acquired
|
| | | (11 | ) | (5 | ) | | (16 | ) | ||||||||||||||||||
Loan to parent company
|
| | | (9 | ) | | | (9 | ) | |||||||||||||||||||
Loan repaid by parent company
|
| | | 9 | | | 9 | |||||||||||||||||||||
Proceeds from asset sales
|
| | | 2 | | | 2 | |||||||||||||||||||||
Net intercompany funding
|
4 | 39 | 271 | (136 | ) | (178 | ) | | | |||||||||||||||||||
Other
|
| | | 5 | | | 5 | |||||||||||||||||||||
Net cash provided by (used in) investing activities
|
4 | (11 | ) | 271 | (313 | ) | (192 | ) | | (241 | ) | |||||||||||||||||
Financing activities
|
||||||||||||||||||||||||||||
Principal repayments
|
| | (308 | ) | (10 | ) | | | (318 | ) | ||||||||||||||||||
Proceeds from new borrowings
|
| | 517 | | | | 517 | |||||||||||||||||||||
Cash provided as collateral
|
| | (137 | ) | | | | (137 | ) | |||||||||||||||||||
Payments on settlement of derivative contracts
|
| | (77 | ) | | | | (77 | ) | |||||||||||||||||||
Proceeds on settlement of derivative contracts
|
| | 16 | | | | 16 | |||||||||||||||||||||
Debt finance costs
|
| | (20 | ) | | | | (20 | ) | |||||||||||||||||||
Other
|
| | | | (3 | ) | | (3 | ) | |||||||||||||||||||
Net cash provided by (used in) financing activities
|
| | (9 | ) | (10 | ) | (3 | ) | | (22 | ) | |||||||||||||||||
Effect of changes in exchange rates on cash and cash equivalents
|
| | | | 4 | | 4 | |||||||||||||||||||||
Net increase (decrease) in cash and cash equivalents
|
| | 36 | (36 | ) | 25 | | 25 | ||||||||||||||||||||
Cash and cash equivalents at beginning of year
|
| | | 38 | 179 | | 217 | |||||||||||||||||||||
Cash and cash equivalents at end of year
|
| | 36 | 2 | 204 | | 242 | |||||||||||||||||||||
F-54
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Operating activities
|
||||||||||||||||||||||||||||
Net (loss) income
|
(871 | ) | (299 | ) | (134 | ) | 137 | (577 | ) | 875 | (869 | ) | ||||||||||||||||
Adjustments to reconcile net income to net cash provided by
operating activities:
|
||||||||||||||||||||||||||||
Depreciation and amortization
|
| | | 162 | 81 | | 243 | |||||||||||||||||||||
Impairment of goodwill, intangible assets and other long-lived
assets
|
| | | | 833 | | 833 | |||||||||||||||||||||
Gain on sale of assets
|
| | | (5 | ) | | | (5 | ) | |||||||||||||||||||
Provision for bad debts
|
| | | 2 | 13 | | 15 | |||||||||||||||||||||
Equity-based compensation
|
| | | 10 | | | 10 | |||||||||||||||||||||
Gain on early extinguishment of debt
|
| | (10 | ) | | | | (10 | ) | |||||||||||||||||||
Amortization of debt finance costs
|
| | 16 | | | | 16 | |||||||||||||||||||||
Loss on interest rate derivative instruments
|
| | 6 | | | | 6 | |||||||||||||||||||||
Gain on foreign exchange derivative instruments
|
(9 | ) | | (4 | ) | | | | (13 | ) | ||||||||||||||||||
Equity in losses of investment in Orbitz Worldwide
|
| 162 | | | | | 162 | |||||||||||||||||||||
FASA liability
|
| | | (26 | ) | | | (26 | ) | |||||||||||||||||||
Deferred income taxes
|
| | | (13 | ) | (105 | ) | | (118 | ) | ||||||||||||||||||
Equity in losses (earnings) of subsidiaries
|
878 | 134 | (137 | ) | | | (875 | ) | | |||||||||||||||||||
Changes in assets and liabilities, net of effects from
acquisitions:
|
||||||||||||||||||||||||||||
Accounts receivable
|
| | | 1 | 30 | | 31 | |||||||||||||||||||||
Other current assets
|
| | | (5 | ) | 1 | | (4 | ) | |||||||||||||||||||
Accounts payable, accrued expenses and other current liabilities
|
| (3 | ) | 8 | (47 | ) | 22 | | (20 | ) | ||||||||||||||||||
Other
|
2 | | 6 | (5 | ) | (15 | ) | | (12 | ) | ||||||||||||||||||
Net cash (used in) provided by operating activities
|
| (6 | ) | (249 | ) | 211 | 283 | | 239 | |||||||||||||||||||
F-55
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Investing activities
|
||||||||||||||||||||||||||||
Property and equipment additions
|
| | | (51 | ) | (7 | ) | | (58 | ) | ||||||||||||||||||
Proceeds from asset sales
|
| | | 5 | | | 5 | |||||||||||||||||||||
Businesses acquired
|
| | | (2 | ) | | | (2 | ) | |||||||||||||||||||
Net intercompany funding
|
133 | 6 | 313 | (288 | ) | (164 | ) | | | |||||||||||||||||||
Net cash provided by (used in) investing activities
|
133 | 6 | 313 | (336 | ) | (171 | ) | | (55 | ) | ||||||||||||||||||
Financing activities
|
||||||||||||||||||||||||||||
Principal repayments
|
| | (292 | ) | (15 | ) | | | (307 | ) | ||||||||||||||||||
Proceeds from new borrowings
|
| | 144 | | | | 144 | |||||||||||||||||||||
Proceeds from settlement of derivative contracts
|
| | 87 | | | | 87 | |||||||||||||||||||||
Net share settlement for equity-based compensation
|
| | | (7 | ) | | | (7 | ) | |||||||||||||||||||
Debt finance costs
|
| | (3 | ) | | | | (3 | ) | |||||||||||||||||||
Distribution to a parent company
|
(227 | ) | | | | | | (227 | ) | |||||||||||||||||||
Other
|
| | | (4 | ) | | | (4 | ) | |||||||||||||||||||
Net cash used in financing activities
|
(227 | ) | | (64 | ) | (26 | ) | | | (317 | ) | |||||||||||||||||
Effect of changes in exchange rates on cash and cash equivalents
|
| | | | 5 | | 5 | |||||||||||||||||||||
Net (decrease) increase in cash and cash equivalents
|
(94 | ) | | | (151 | ) | 117 | | (128 | ) | ||||||||||||||||||
Cash and cash equivalents at beginning of year
|
94 | | | 189 | 62 | | 345 | |||||||||||||||||||||
Cash and cash equivalents at end of year
|
| | | 38 | 179 | | 217 | |||||||||||||||||||||
F-56
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Operating activities
|
||||||||||||||||||||||||||||
Net (loss) income
|
(179 | ) | (400 | ) | (256 | ) | 35 | 230 | 394 | (176 | ) | |||||||||||||||||
Adjustments to reconcile net income to net cash provided by
operating activities:
|
||||||||||||||||||||||||||||
Depreciation and amortization
|
| | | 184 | 79 | | 263 | |||||||||||||||||||||
Loss on sale of assets
|
| | | 7 | | | 7 | |||||||||||||||||||||
Provision for bad debts
|
| | | 4 | 5 | | 9 | |||||||||||||||||||||
Equity-based compensation
|
| | | 1 | | | 1 | |||||||||||||||||||||
Gain on early extinguishment of debt
|
| | (29 | ) | | | | (29 | ) | |||||||||||||||||||
Amortization of debt finance costs
|
| | 20 | | | | 20 | |||||||||||||||||||||
Loss on interest rate derivative instruments
|
| | 28 | | | | 28 | |||||||||||||||||||||
Loss on foreign exchange derivative instruments
|
5 | | 4 | | | | 9 | |||||||||||||||||||||
Equity in losses of investment in Orbitz Worldwide
|
| 144 | | | | | 144 | |||||||||||||||||||||
FASA liability
|
| | | (33 | ) | | | (33 | ) | |||||||||||||||||||
Deferred income taxes
|
| | | 4 | (16 | ) | | (12 | ) | |||||||||||||||||||
Equity in losses (earnings) of subsidiaries
|
173 | 256 | (35 | ) | | | (394 | ) | | |||||||||||||||||||
Changes in assets and liabilities, net of effects from
acquisitions:
|
||||||||||||||||||||||||||||
Accounts receivables
|
| | | 20 | (16 | ) | | 4 | ||||||||||||||||||||
Other current assets
|
| | | 22 | (32 | ) | | (10 | ) | |||||||||||||||||||
Accounts payable, accrued expenses and other current liabilities
|
| | 28 | (86 | ) | (45 | ) | | (103 | ) | ||||||||||||||||||
Other
|
(5 | ) | | (4 | ) | (39 | ) | 50 | | 2 | ||||||||||||||||||
Net cash (used in) provided by operating activities
|
(6 | ) | | (244 | ) | 119 | 255 | | 124 | |||||||||||||||||||
F-57
23. | Guarantor and Non-Guarantor Financial Statements (Continued) |
Intermediate
|
||||||||||||||||||||||||||||
Parent
|
Parent
|
Guarantor
|
Non-Guarantor
|
Travelport
|
||||||||||||||||||||||||
(in $ millions) | Guarantor | Guarantor | Issuer | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||||||||
Investing activities
|
||||||||||||||||||||||||||||
Property and equipment additions
|
| | | (59 | ) | (35 | ) | | (94 | ) | ||||||||||||||||||
Businesses acquired
|
| | | 4 | | | 4 | |||||||||||||||||||||
Proceeds from asset sales
|
| | | 3 | | | 3 | |||||||||||||||||||||
Net intercompany funding
|
(61 | ) | | 146 | 156 | (241 | ) | | | |||||||||||||||||||
Other
|
| | | 4 | (1 | ) | | 3 | ||||||||||||||||||||
Net cash (used in) provided by investing activities
|
(61 | ) | | 146 | 108 | (277 | ) | | (84 | ) | ||||||||||||||||||
Financing activities
|
||||||||||||||||||||||||||||
Principal repayments
|
| | (161 | ) | (8 | ) | | | (169 | ) | ||||||||||||||||||
Proceeds from new borrowings
|
| | 259 | | | | 259 | |||||||||||||||||||||
Net share settlement for equity-based compensation
|
| | | (24 | ) | | | (24 | ) | |||||||||||||||||||
Distribution to a parent company
|
(60 | ) | | | | | | (60 | ) | |||||||||||||||||||
Net cash (used in) provided by financing activities
|
(60 | ) | | 98 | (32 | ) | | | 6 | |||||||||||||||||||
Effect of changes in exchange rates on cash and cash equivalents
|
| | | | (10 | ) | | (10 | ) | |||||||||||||||||||
Net (decrease) increase in cash and cash equivalents
|
(127 | ) | | | 195 | (32 | ) | | 36 | |||||||||||||||||||
Cash and cash equivalents at beginning of year
|
221 | | | (6 | ) | 94 | | 309 | ||||||||||||||||||||
Cash and cash equivalents at end of year
|
94 | | | 189 | 62 | | 345 | |||||||||||||||||||||
F-58
Exhibit
2
.1
Purchase Agreement by and among Cendant Corporation, Travelport
Americas, Inc. (f/k/a Travelport Inc.), and Travelport LLC
(f/k/a TDS Investor Corporation, f/k/a TDS Investor LLC), dated
as of June 30, 2006 (Incorporated by reference to Exhibit
2.1 to the Registration Statement on Form S-4 of Travelport
Limited (333-141714) filed on March 30, 2007).
2
.2
Amendment to the Purchase Agreement among Cendant Corporation,
Travelport Americas, Inc., (f/k/a Travelport Inc.) (f/k/a
TDS Investor Corporation, f/k/a TDS Investor LLC) and Travelport
Limited (f/k/a TDS Investor (Bermuda), Ltd.), dated as of August
23, 2006, to the Purchase Agreement dated as of June 30, 2006
(Incorporated by reference to Exhibit 2.2 to the Registration
Statement on Form S-4 of Travelport Limited (333-141714) filed
on March 30, 2007).
2
.3
Agreement and Plan of Merger by and among Travelport LLC (f/k/a
Travelport Inc.) Warpspeed Sub Inc., Worldspan Technologies
Inc., Citigroup Venture Capital Equity Partners, L.P., Ontario
Teachers Pension Plan Board and Blackstone Management
Partners V, L.P., dated as of December 7, 2006
(Incorporated by reference to Exhibit 2.3 to the Registration
Statement on Form S-4 of Travelport Limited (333-141714) filed
on March 30, 2007).
2
.4
Separation and Distribution Agreement by and among Cendant
Corporation (n/k/a Avis Budget Group, Inc.), Realogy
Corporation, Wyndham Worldwide Corporation and Travelport
Americas, Inc. (f/k/a Travelport Inc.), dated as of July 27,
2006 (Incorporated by reference to Exhibit 2.1 to Cendant
Corporations Current Report on Form 8-K dated August 1,
2006).
2
.5
Share Purchase Agreement, dated March 5, 2011, among
Gullivers Services Limited, Travelport (Bermuda) Ltd.,
Travelport Inc., Travelport Limited, Kuoni Holdings PLC, Kuoni
Holding Delaware, Inc., KIT Solution AG and Kuoni Reisen Holding
AG.
3
.1
Certificate of Incorporation of Travelport Limited (f/k/a TDS
Investor (Bermuda) Ltd.) (Incorporated by reference to Exhibit
3.3 to the Registration Statement on Form S-4 of Travelport
Limited
(333-141714)
filed on March 30, 2007).
3
.2
Memorandum of Association and By-laws of Travelport Limited
(f/k/a TDS Investor (Bermuda) Ltd.) (Incorporated by reference
to Exhibit 3.4 to the Registration Statement on Form S-4 of
Travelport Limited (333-141714) filed on March 30, 2007).
4
.1
Indenture dated as of August 23, 2006 by and among Travelport
LLC (f/k/a Travelport Inc.) and the Bank of Nova Scotia Trust
Company of New York relating to the Senior Notes (Incorporated
by reference to Exhibit 4.1 to the Registration Statement on
Form S-4 of Travelport Limited
(333-141714)
filed on March 30, 2007).
4
.2
Indenture dated as of August 23, 2006 by and among Travelport
LLC (f/k/a Travelport Inc.) and the Bank of Nova Scotia Trust
Company of New York relating to the Senior Subordinated Notes
(Incorporated by reference to Exhibit 4.2 to the Registration
Statement on Form S-4 of Travelport Limited (333-141714) filed
on March 30, 2007).
4
.3
Supplemental Indenture No. 1 (with respect to the Senior Notes)
dated January 11, 2007 between Warpspeed Sub Inc. and The Bank
of Nova Scotia Trust Company of New York (Incorporated by
reference to Exhibit 4.5 to the Registration Statement on Form
S-4 of Travelport Limited
(333-141714)
filed on March 30, 2007).
4
.4
Supplemental Indenture No. 1 (with respect to the Senior
Subordinated Notes) dated January 11, 2007 between Warpspeed Sub
Inc. and The Bank of Nova Scotia Trust Company of New York
(Incorporated by reference to Exhibit 4.6 to the Registration
Statement on Form S-4 of Travelport Limited (333-141714) filed
on March 30, 2007).
4
.5
Supplemental Indenture No. 2 (with respect to the Senior Notes)
dated March 13, 2007 among Travelport LLC (f/k/a TDS Investor
Corporation), TDS Investor (Luxembourg) S.à.r.l.,
Travelport Inc., Orbitz Worldwide, Inc., Travelport Holdings,
Inc. and The Bank of Nova Scotia Trust Company of New York
(Incorporated by reference to Exhibit 4.7 to the Registration
Statement on Form S-4 of Travelport Limited (333-141714) filed
on March 30, 2007).
G-1
Table of Contents
Exhibit
4
.6
Supplemental Indenture No. 2 (with respect to the Senior
Subordinated Notes) dated March 13, 2007 among Travelport LLC
(f/k/a TDS Investor Corporation), TDS Investor (Luxembourg)
S.à.r.l., Travelport Inc., Orbitz Worldwide, Inc.,
Travelport Holdings, Inc. and The Bank of Nova Scotia Trust
Company of New York (Incorporated by reference to Exhibit 4.8 to
the Registration Statement on Form S-4 of Travelport Limited
(333-141714) filed on March 30, 2007).
4
.7
Indenture, relating to the 9% Senior Notes due 2016, dated
as of August 18, 2010, by and among Travelport Limited,
Travelport LLC, Travelport Inc. and the guarantors named
therein, and The Bank of Nova Scotia Trust Company of New York,
as trustee (Incorporated by reference to Exhibit 4.1 to the
Current Report on Form 8-K filed by Travelport Limited on August
18, 2010 (dated August 12, 2010)).
4
.8
Registration Rights Agreement, relating to the 9% Senior
Notes due 2016, dated as of August 18, 2010, among Travelport
Limited, Travelport LLC, Travelport Inc. and the guarantors
named therein and Credit Suisse Securities (USA) LLC, as the
representative of the initial purchasers (Incorporated by
reference to Exhibit 4.2 to the Current Report on Form 8-K filed
by Travelport Limited on August 18, 2010).
10
.1
Third Amended and Restated Credit Agreement dated as of August
23, 2006, as amended and restated on October 22, 2010, among
Travelport LLC (f/k/a Travelport Inc.), Travelport Limited
(f/k/a TDS Investor (Bermuda) Ltd.), Waltonville Limited, UBS
AG, Stamford Branch, UBS Loan Finance LLC and Other Lenders
Party Thereto (Incorporated by reference to Exhibit 10.1 to the
Current Report on Form 8-K filed by Travelport Limited on
October 26, 2010 (dated October 22, 2010)).
10
.2
Security Agreement dated as of August 23, 2006 by and among
Travelport LLC (f/k/a Travelport Inc.), Travelport Limited
(f/k/a TDS Investor (Bermuda) Ltd.), Waltonville Limited.
Certain Subsidiaries of Holdings Identified Herein and UBS AG,
Stamford Branch (Incorporated by reference to Exhibit 10.2 to
the Registration Statement on Form S-4 of Travelport Limited
(333-141714) filed on March 30, 2007).
10
.3
Transition Services Agreement among Cendant Corporation (n/k/a
Avis Budget Group, Inc.), Realogy Corporation, Wyndham Worldwide
Corporation and Travelport Americas, Inc. (f/k/a Travelport
Inc.), dated as of July 27, 2006 (Incorporated by reference to
Exhibit 10.1 to Cendant Corporations Current Report on
Form 8-K dated August 1, 2006).
10
.4
Tax Sharing Agreement among Cendant Corporation (n/k/a Avis
Budget Group, Inc.), Realogy Corporation, Wyndham Worldwide
Corporation and Travelport Americas, Inc. (f/k/a Travelport
Inc.), dated as of July 28, 2006 (Incorporated by reference to
Exhibit 10.1 to Cendant Corporations Current Report on
Form 8-K dated August 1, 2006).
10
.5
Separation Agreement, dated as of July 25, 2007, by and between
Travelport Limited and Orbitz Worldwide, Inc. (Incorporated by
reference to Exhibit 10.1 to the Current Report on Form 8-K
filed by Travelport Limited on July 27, 2007 (dated July 23,
2007)).
10
.6
Transition Services Agreement, dated as of July 25, 2007, by and
between Travelport Inc. and Orbitz Worldwide, Inc. (Incorporated
by reference to Exhibit 10.2 to the Current Report on Form 8-K
filed by Travelport Limited on July 27, 2007 (dated July 23,
2007)).
10
.7
Tax Sharing Agreement, dated as of July 25, 2007, by and between
Travelport Inc. and Orbitz Worldwide, Inc. (Incorporated by
reference to Exhibit 10.3 to the Current Report on Form 8-K
filed by Travelport Limited on July 27, 2007 (dated July 23,
2007)).
10
.8
Subscriber Services Agreement, dated as of July 23, 2007, by and
among Orbitz Worldwide, Inc., Galileo International, L.L.C.
(n/k/a Travelport International, L.L.C. and Galileo Nederland
B.V. (n/k/a Travelport Global Distribution System B.V.)
(Incorporated by reference to Exhibit 10.4 to the Current Report
on Form 8-K/A filed by Travelport Limited on February 27, 2008
(dated July 23, 2007)).*
10
.9
Amended and Restated Employment Agreement of Jeff Clarke, dated
as of August 3, 2009 (Incorporated by reference to Exhibit 10.2
to the Quarterly Report on Form 10-Q filed by Travelport Limited
on August 6, 2009).
10
.10
Amended and Restated Employment Agreement of Eric J. Bock, dated
as of August 3, 2009 (Incorporated by reference to Exhibit 10.3
to the Quarterly Report on Form 10-Q filed by Travelport Limited
on August 6, 2009).
G-2
Table of Contents
Exhibit
10
.11
Service Agreement dated as of March 30, 2007 between Gordon
Wilson and Galileo International Limited (n/k/a Travelport
International Limited) (Incorporated by reference to
Exhibit 10.13 to the Registration Statement on
Form S-4
of Travelport Limited
(333-141714)
filed on March 30, 2007).
10
.12
Contract of Employment, dated as of October 1, 2009, among
Philip Emery, Travelport International Limited and TDS Investor
(Cayman) L.P. (Incorporated by reference to Exhibit 10.1 to the
Current Report on Form 8-K filed by Travelport Limited on
October 7, 2009).
10
.13
Contract of Employment, dated as of October 2, 2009, among
Lee Golding, Travelport International Limited and TDS Investor
(Cayman) L.P.
10
.14
Travelport Officer Deferred Compensation Plan (Incorporated by
reference to Exhibit 10.20 to the Annual Report on Form
10-K of Travelport Limited filed on March 12, 2009).
10
.15
First Amendment to Travelport Officer Deferred Compensation Plan
(Incorporated by reference to Exhibit 10.15 to the Annual
Report on
Form 10-K
filed by Travelport Limited on March 17, 2010).
10
.16
Second Amendment to Travelport Officer Deferred Compensation
Plan.
10
.17
Form of Management Equity Award Agreement (Senior Leadership
Team) (Incorporated by reference to Exhibit 10.4 to the Current
Report on Form 8-K filed by Travelport Limited on August 28,
2007 (dated August 22, 2007)).
10
.18
Form of Management Equity Award Agreement for Gordon Wilson
(Incorporated by reference to Exhibit 10.5 to the Current Report
on Form 8-K filed by Travelport Limited on August 28, 2007
(dated August 22, 2007)).
10
.19
Form of TDS Investor (Cayman) L.P. Sixth Amended and Restated
Agreement of Exempted Limited Partnership (Incorporated by
reference to Exhibit 10.28 to the Annual Report on Form 10-K
filed by Travelport Limited on May 11, 2008).
10
.20
Amendment No. 7, dated as of February 9, 2010, to the TDS
Investor (Cayman) L.P. Sixth Amended and Restated Agreement of
Exempted Limited Partnership, dated as of December 19, 2007
(Incorporated by reference to Exhibit 10.17 to the Annual
Report on
Form 10-K
filed by Travelport Limited on March 17, 2010).
10
.21
Form of TDS Investor (Cayman) L.P. Fifth Amended and Restated
2006 Interest Plan (Incorporated by reference to Exhibit 10.2 to
the Quarterly Report on Form 10-Q filed by Travelport Limited on
November 10, 2010).
10
.22
Form of 2009 LTIP Equity Award Agreement (Restricted Equity
Units) U.S. Senior Leadership Team (Incorporated by
reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q
filed by Travelport Limited on May 12, 2009).
10
.23
Form of 2009 LTIP Equity Award Agreement (Restricted Equity
Units) for Gordon Wilson (Incorporated by reference to Exhibit
10.3 to the Quarterly Report on Form 10-Q filed by Travelport
Limited on May 12, 2009).
10
.24
Form of 2010 LTIP Equity Award Agreement (Restricted Equity
Units) UK Senior Leadership Team (Incorporated by
reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q
filed by Travelport Limited on November 10, 2010).
10
.25
2011 Executive Supplemental Bonus Plan.
10
.26
Amendment 6 to the Worldspan Asset Management Offering
Agreement, dated as of July 1, 2002, as amended, among
Worldspan, L.P., Travelport Inc., Galileo International LLC,
International Business Machines Corporation and IBM Credit LLC
(Incorporated by reference to Exhibit 10.31 to the Annual Report
on Form 10-K filed by Travelport Limited on May 11, 2008).*
10
.27
Amendment 7 to the Worldspan Asset Management Offering
Agreement, dated as of July 1, 2002, as amended, among
Worldspan, L.P., Travelport Inc., Galileo International LLC,
International Business Machines Corporation and IBM Credit LLC
(Incorporated by reference to Exhibit 10.32 to the Annual Report
on Form 10-K filed by Travelport Limited on May 11, 2008).*
10
.28
Amendment 8 to the Worldspan Asset Management Offering
Agreement, dated as of July 1, 2002, as amended, among
Worldspan, L.P., Travelport Inc., Galileo International LLC,
International Business Machines Corporation and IBM Credit LLC
(Incorporated by reference to Exhibit 10.33 to the Annual Report
on Form 10-K filed by Travelport Limited on May 11, 2008).*
G-3
Table of Contents
Exhibit
10
.29
Amendment 9 to the Worldspan Asset Management Offering
Agreement, dated as of July 1, 2002, as amended, among
Worldspan, L.P., Travelport Inc., Galileo International LLC,
International Business Machines Corporation and IBM Credit LLC
(Incorporated by reference to Exhibit 10.34 to the Annual Report
on Form 10-K filed by Travelport Limited on May 11, 2008).*
10
.30
Amendment 11 to the Asset Management Offering Agreement,
effective as of July 1, 2002, as amended, among Travelport, LP,
International Business Machines Corporation and IBM Credit LLC
(Incorporated by reference to Exhibit 10.3 to the Quarterly
Report on Form 10-Q filed by Travelport Limited on May 6, 2010).*
10
.31
First Amendment to the Separation Agreement, dated as of May 5,
2008, between Travelport Limited and Orbitz Worldwide, Inc.
(Incorporated by reference to Exhibit 10.1 to the Current Report
on Form 8-K filed by Travelport Limited on May 7, 2008).
10
.32
Second Amendment to the Separation Agreement, dated as of
January 23, 2009, between Travelport Limited and Orbitz
Worldwide, Inc. (Incorporated by reference to Exhibit 10.34 to
the Annual Report on Form 10-K filed by Travelport Limited on
March 12, 2009).
10
.33
Form of Indemnification Agreement between Travelport Limited and
its Directors and Officers (Incorporated by reference to Exhibit
10.2 to the Quarterly Report on Form 10-Q filed by Travelport
Limited on August 14, 2008).
10
.34
First Amendment to Subscriber Services Agreement, dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Galileo
International, L.L.C. (n/k/a Travelport International, L.L.C.)
and Galileo Nederland B.V. (n/k/a Travelport Global Distribution
System B.V.) (Incorporated by reference to Exhibit 10.36 to the
Annual Report on Form 10-K filed by Travelport Limited on March
12, 2009).*
10
.35
Second Amendment to Subscriber Services Agreement, dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Galileo
International, L.L.C. (n/k/a Travelport International, L.L.C.)
and Galileo Nederland B.V. (n/k/a Travelport Global Distribution
System B.V.) (Incorporated by reference to Exhibit 10.37 to the
Annual Report on Form 10-K filed by Travelport Limited on March
12, 2009).
10
.36
Third Amendment to Subscriber Services Agreement, dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Galileo
International, L.L.C. (n/k/a Travelport International, L.L.C.)
and Galileo Nederland B.V. (n/k/a Travelport Global Distribution
System B.V.) (Incorporated by reference to Exhibit 10.38 to the
Annual Report on Form 10-K filed by Travelport Limited on March
12, 2009).*
10
.37
Fourth Amendment to Subscriber Services Agreement, dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Galileo
International L.L.C. (n/k/a Travelport International L.L.C.) and
Galileo Nederland B.V. (n/k/a Travelport Global Distribution
System B.V.) (Incorporated by reference to Exhibit 10.5 to the
Quarterly Report on Form 10-Q filed by Travelport Limited on
November 13, 2009).
10
.38
Fifth Amendment to Subscriber Services Agreement, dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Galileo
International L.L.C. (n/k/a Travelport International L.L.C.) and
Galileo Nederland B.V. (n/k/a Travelport Global Distribution
System B.V.) (Incorporated by reference to Exhibit 10.32 to the
Annual Report on Form
10-K
filed
by Travelport Limited on March 17, 2010).
10
.39
Sixth Amendment to Subscriber Services Agreement, dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Travelport,
LP (f/k/a Travelport International, L.L.C.) and Travelport
Global Distribution System B.V. (f/k/a Galileo Nederland B.V.)
(Incorporated by reference to Exhibit 10.1 to the Quarterly
Report on Form 10-Q filed by Travelport Limited on May 5, 2010).*
10
.40
Seventh Amendment to Subscriber Services Agreement dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Travelport,
LP (f/k/a Travelport International, L.L.C.) and Travelport
Global Distribution Systems B.V. (f/k/a Galileo Nederland B.V.)
(Incorporated by reference to Exhibit 10.2 to the Quarterly
Report on Form 10-Q filed by Travelport Limited on May 5, 2010).
10
.41
Eighth Amendment to Subscriber Services Agreement dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Travelport,
LP (f/k/a Travelport International, L.L.C.) and Travelport
Global Distribution Systems B.V. (f/k/a Galileo Nederland B.V.)
(Incorporated by reference to Exhibit 10.3 to the Quarterly
Report on Form 10-Q filed by Travelport Limited on November 10,
2010).
G-4
Table of Contents
Exhibit
10
.42
Ninth Amendment to Subscriber Services Agreement dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Travelport,
LP (f/k/a Travelport International, L.L.C.) and Travelport
Global Distribution Systems B.V. (f/k/a Galileo Nederland B.V.)
(Incorporated by reference to Exhibit 10.4 to the Quarterly
Report on Form 10-Q filed by Travelport Limited on May 5, 2010).
10
.43
Tenth Amendment to Subscriber Services Agreement dated as of
July 23, 2007, by and among Orbitz Worldwide, Inc., Travelport,
LP (f/k/a Travelport International, L.L.C.) and Travelport
Global Distribution Systems B.V. (f/k/a Galileo Nederland B.V.).
10
.44
Amendment No. 1, dated as of March 14, 2011, to the Third
Amended and Restated Credit Agreement dated as of August 23,
2006, as amended and restated on October 22, 2010, among
Travelport LLC, Travelport Limited, UBS AG, Stamford Branch, as
Administrative Agent, Collateral Agent, L/C Issuer and Swing
Line Lender, the lenders party thereto, Credit Suisse Securities
(USA) LLC, as Syndication Agent, and the other parties thereto
(Incorporated by reference to Exhibit 10.1 to the Current Report
on Form 8-K filed by Travelport Limited on March 14, 2011 (dated
March 8, 2011)).
10
.45
Letter Agreement, dated March 28, 2011, between Gordon
Wilson and Travelport International Limited.
10
.46
Letter Agreement, dated March 28, 2011, between Philip
Emery and Travelport International Limited.
12
Statement re: Computation of Ratio of Earnings to Fixed Charges.
21
List of Subsidiaries.
31
.1
Certification of Chief Executive Officer Pursuant to Rules
13(a)-14(a) and 15(d)-14(a) Promulgated Under the Securities
Exchange Act of 1934, as amended.
31
.2
Certification of Chief Financial Officer Pursuant to Rules
13(a)-14(a) and 15(d)-14(a) Promulgated Under the Securities
Exchange Act of 1934, as amended.
32
Certification Pursuant to 18 U.S.C. Section 1350, as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
99
Financial Statements and Supplementary Data of Orbitz Worldwide,
Inc.
*
Portions of this document have been omitted and filed separately
with the Securities and Exchange Commission pursuant to a
request for confidential treatment pursuant to
Rule 24b-2.
G-5
Page | ||||
1 Interpretation
|
2 | |||
2. Sale and Purchase
|
15 | |||
3. Condition
|
15 | |||
4. Conduct of business before Completion
|
17 | |||
5. Consideration
|
19 | |||
6. Leakage
|
21 | |||
7. Completion
|
21 | |||
8. Post-Completion obligations
|
22 | |||
9. Warranties
|
23 | |||
10. Restrictive Covenants
|
24 | |||
11. The Purchasers Warranties and Undertakings
|
26 | |||
12. Travelport Guarantee
|
27 | |||
13. Kuoni Guarantee
|
29 | |||
14. Release of Guarantees and Letters of Credit
|
31 | |||
15. Employees
|
32 | |||
16. D&O Insurance Cover and Transitional Services Agreement
|
33 | |||
17. Effect of Completion
|
34 | |||
18. Remedies and waivers
|
34 | |||
19. Assignment
|
34 | |||
20. Further Assurance
|
35 | |||
21. Entire Agreement
|
35 | |||
22. Variations
|
36 | |||
23. Notices
|
36 | |||
24. Announcements
|
37 | |||
25. Confidentiality
|
37 | |||
26. Costs and Expenses
|
38 | |||
27. Counterparts
|
39 | |||
28. Severability
|
39 | |||
29. Contracts (Rights of Third Parties) Act 1999
|
39 | |||
30. Governing law
|
39 | |||
31. Jurisdiction
|
39 | |||
Schedule 1 The Sellers
|
||||
Schedule 2 Completion and Post-Completion Arrangements
|
||||
Part A1 Sellers Obligations
|
||||
Part B1 Purchasers Obligations at Completion
|
||||
Schedule 3 Warranties
|
||||
Schedule 4
|
||||
Schedule 5 Restricted Actions
|
||||
Schedule 6 Effective Time Statements
|
||||
Schedule 7 Accounting Policies
|
||||
Schedule 8 Employee Payments
|
||||
Schedule 9 Properties
|
||||
Schedule 10 Intellectual Property
|
||||
Schedule 11 Part 1 Travelport Guarantees
|
||||
Part 2 Travelport Letters of Credit
|
||||
Schedule 12 FX Hedging Arrangements
|
||||
Schedule 13 Tax Indemnity
|
||||
Schedule 14 Limitations on the liability of the Sellers under the Business Warranties
|
||||
Schedule 15 Transitional Services Agreement
|
(i)
(1) | GULLIVERS SERVICES LIMITED , a company registered in England and Wales under number 05227753, whose registered office is Gullivers House, 27 Goswell Road, London, EC1M 7GT ( Gullivers Services ); | |
(2) | TRAVELPORT (BERMUDA) LTD. , a company registered in Bermuda under number EC38680 whose registered office is, Clarendon House, 2 Church Street, Hamilton, HM 11, Bermuda ( Travelport Bermuda ); | |
(3) | TRAVELPORT INC. , a Delaware corporation, whose principal place of business is at 300 Galleria Parkway, Atlanta, Georgia 30339 ( Travelport US and together with Gullivers Services and Travelport Bermuda, the Sellers and each a Seller ); | |
(4) | TRAVELPORT LIMITED , a company registered in Bermuda under number 38682 whose registered office is Clarendon House, 2 Church Street, Hamilton, HM 11, Bermuda (the Travelport Guarantor ); | |
(5) | KUONI HOLDINGS PLC , a company registered in England and Wales under number 03656448, whose registered office is at Kuoni House, Deep Dean Avenue, Dorking, Surrey, RH5 4AZ ( Kuoni UK ); | |
(6) | KUONI HOLDING DELAWARE, INC. , a company registered in Delaware under number 3068473, whose registered office is at c/o The Corporation Trust Company, Corporation Trust Centre, 1209 Orange Street, Wilmington (New Castle Country) Delaware 19801, the United States of America ( Kuoni US ); | |
(7) | KIT SOLUTION AG , a company registered in Switzerland under number 020.3.003.992.5, whose registered office is at Neue Hard 7, CH-8010 Zurich, Switzerland ( Kuoni SW ) (Kuoni UK, Kuoni US and Kuoni SW, together the Purchasers ); | |
(8) | KUONI REISEN HOLDING AG, a company registered in Switzerland under number 020.3.921.635-3 whose registered office is at Neue Hard 7, CH-8010 Zurich, Switzerland (the Kuoni Guarantor ). |
(A) | Each Seller is the beneficial owner and registered holder of that number of Shares in the capital of the Companies as are set out opposite the name of such Seller in column (3) of Schedule 1 ( The Sellers ). Brief particulars of each of the Companies and each of the Subsidiaries are set out in the Group Schedule. |
(B) | Each Seller has agreed to sell and the Purchasers have agreed to purchase and pay for the Shares set forth opposite the name of the relevant Seller in column (3) of Schedule 1 ( The Sellers ), in each case on the terms and subject to the conditions of this Agreement. |
(C) | The Travelport Guarantor, at the request of the Sellers, has agreed to guarantee the obligations of the Sellers under this Agreement and the Transitional Services Agreement. |
(D) | The Kuoni Guarantor, at the request of the Purchasers, has agreed to guarantee the obligations of the Purchasers under this Agreement and the Transitional Services Agreement. |
1
1 | Interpretation | |
1.1 | In this Agreement including the Recitals and the Schedules to it: |
Accounting Policies
|
means the accounting policies set out in Schedule 7 ( Accounting Policies ); | ||
|
|||
Accounts
|
means the unaudited proforma combined balance sheet of the Group as of the Accounts Date and the unaudited proforma combined profit and loss account of the Group for the financial year ended on the Accounts Date in the agreed form; | ||
|
|||
Accounts Date
|
means 31 December 2010; | ||
|
|||
Actual Cash Amount
|
means the actual amount of Cash of the Group Companies calculated in accordance with Schedule 6 ( Effective Time Statements ); | ||
|
|||
Actual Cash Statement
|
means the statement setting out the Actual Cash Amount, as agreed or determined in accordance with Schedule 6 ( Effective Time Statements ); | ||
|
|||
Actual Indebtedness Amount
|
means the actual amount of Indebtedness of the Group Companies calculated in accordance with Part 4 of Schedule 6 ( Effective Time Statements ); | ||
|
|||
Actual Indebtedness Statement
|
means the statement setting out the Actual Indebtedness Amount, as agreed or determined in accordance with Schedule 6 ( Effective Time Statements ); | ||
|
|||
Actual Working Capital Amount
|
means the actual amount of Working Capital of the Group Companies calculated in accordance with Part 3 of Schedule 6 ( Effective Time Statements ); | ||
|
|||
Actual Working Capital Statement
|
means the statement setting out the Actual Working Capital Amount, as agreed or determined in accordance with of Schedule 6 ( Effective Time Statement ); | ||
|
|||
Affiliate
|
means: | ||
|
|||
|
(i) when used in relation to the Sellers (or any one of them), Travelport Limited and it subsidiaries and subsidiary undertakings from time to time (excluding the Group Companies); and | ||
|
|||
|
(ii) when used in relation to any person other than the Sellers (or any one of them), any person which is from time to time a subsidiary or holding company of that person and all other subsidiaries of any such holding company; | ||
|
|||
Audited Accounts
|
means: | ||
|
|||
|
(i) the audited combined balance sheet of the Group as at |
2
|
the Accounts Date and the audited combined profit and loss account and cash flow statement of the Group in respect of the financial year ended on the Accounts Date; and | ||
|
|||
|
(ii) the audited combined balance sheet of the Group as at 31 December 2009 and the audited combined profit and loss account and cash flow statement of the Group in respect of the financial year ended on 31 December 2009, | ||
|
|||
|
in each case to be prepared by or on behalf of the Travelport Guarantor and audited by the Sellers Accountants in accordance with the terms of the Audit Engagement Letter but which, for the avoidance of doubt, need not have been signed by the Sellers Accountants in order to constitute the Audited Accounts for the purposes hereof; | ||
|
|||
Audit Engagement Letter
|
means the engagement letter dated 4 March 2011 between the Sellers Accountants and the Travelport Guarantor; | ||
|
|||
Audit Report
|
means the audit report relating to the Audited Accounts which the Sellers Accountants have been instructed to deliver in accordance with the terms of the Audit Engagement Letter but which, for the avoidance of doubt, need not have been signed by the Sellers Accountants in order to constitute the Audit Report for the purposes hereof; | ||
|
|||
Audit Deliverables
|
means: | ||
|
|||
|
(a) the Audited Accounts; and
|
||
|
|||
|
(b) the Audit Report;
|
||
|
|||
Balancing Amount
|
means an amount equal to the aggregate of: | ||
|
|||
|
(i) the Working Capital Shortfall (if any) (expressed as a
negative number) or, if there is no Working Capital
Shortfall, the Working Capital True-up Amount (if any); and
|
||
|
|||
|
(ii) the Cash Shortfall (if any) (expressed as a negative
number) or, if there is no Cash Shortfall, the Cash True-up
Amount (if any);
|
||
|
|||
|
(iii) the Indebtedness True-up Amount (if any);
|
||
|
|||
Board Recommendation
|
means the duly adopted recommendation of the board of directors of the Kuoni Guarantor at a meeting duly called and held whereby the board of directors of the Kuoni Guarantor has resolved (i) that this Agreement and the transactions contemplated by it are fair to, and in the best interests of, the Kuoni Guarantor, (ii) to approve the entry into this Agreement and the other transactions contemplated by it, and (iii) to recommend approval of the Resolutions; |
3
Business
|
means the businesses conducted by the Group Companies in the ordinary course as at the date of this Agreement, or all or any part of any of it; | ||
|
|||
Business Warranties
|
means the Warranties set out in Schedule 3, other than the Fundamental Warranties, and Business Warranty shall mean any one of them (as the context requires); | ||
|
|||
Business Day
|
means a day (other than a Saturday or a Sunday) on which banks generally are open for business in London, New York City and Switzerland and Business Days shall be construed accordingly; | ||
|
|||
CA 2006
|
means the Companies Act 2006; | ||
|
|||
Cash
|
means, as at the Effective Time, the aggregate amount of any cash on hand or credited to an account with a bank or other financial institution and cash equivalents readily convertible to cash to which any Group Company is beneficially entitled in accordance with US GAAP and as recorded in, and calculated consistent with past practice from, the books and records of the relevant Group Company but excluding Trapped Cash; | ||
|
|||
Cash Shortfall
|
means the amount (if any) by which the Actual Cash Amount is less than the Estimated Cash Amount; | ||
|
|||
Cash True-up Amount
|
means the lesser of: (i) the amount (if any) by which the Actual Cash Amount exceeds the Estimated Cash Amount; and (ii) the Estimated Cash Shortfall (if any), expressed as a positive number; | ||
|
|||
Claim
|
means a claim by the Purchasers against the Sellers in respect of the Business Warranties or the Indemnities; | ||
|
|||
Comfort Letters
|
means the unsigned forms of comfort and consent letters from the Sellers Accountants in the form agreed to be provided by the Sellers Accountants under the terms of the Joint Engagement Letter; | ||
|
|||
Companies
|
means the companies whose names are set out in column (2) of Schedule 1 (the Sellers) and the term Company shall mean any one of them; | ||
|
|||
Completion
|
means completion of the sale and purchase of the Shares under this Agreement; | ||
|
|||
Completion Date
|
means (save as may as may be otherwise agreed in writing between the Sellers and the Purchasers), 5 May 2011 unless the Condition has not been satisfied at least 2 Business Days prior to that date in which case the Completion Date shall be the first Business Day falling three Business Days after the date on which the Condition is satisfied; |
4
Condition
|
means the condition to the sale and purchase of the Shares set out in clause 3.1 (Condition); | ||
|
|||
Confidential Information
|
means all secret or confidential commercial, financial, technical information, know-how trade secrets, trade secrets, inventions, computer hardware and other information whatsoever and whatever form or medium and whether disclosed orally or in writing, together with all reproductions in whatsoever form or medium or any part or parts of it; | ||
|
|||
Confidentiality Agreement
|
means the confidentiality agreement entered into between the Kuoni Guarantor and Travelport Limited dated 3 September 2010; | ||
|
|||
Consideration
|
shall have the meaning given in clause 5.6 (Consideration); | ||
|
|||
CTA 2009
|
means the Corporation Tax Act 2009; | ||
|
|||
Definitive Agreements
|
means this Agreement and the Disclosure Letter; | ||
|
|||
Deliverables
|
means: | ||
|
|||
|
(a) the Audit Deliverables;
|
||
|
|||
|
(b) the Comfort Letters; and
|
||
|
|||
|
(c) the Reconciliation Statement;
|
||
|
|||
Disclosed
|
means fairly disclosed by the Disclosure Letter and Disclosure shall be construed accordingly; | ||
|
|||
Disclosure Letter
|
means the letter dated on the same date as this Agreement and written by the Sellers to the Purchasers for the purposes of clause 9.3 (i) together with the documents attached or appended to it in the agreed form; | ||
|
|||
Effective Time
|
means 5.30 pm Eastern Standard Time on 30 April 2011; | ||
|
|||
Effective Time Statements
|
means the Actual Cash Statement, the Actual Working Capital Statement and the Actual Indebtedness Statement; | ||
|
|||
Employee Payments
|
means the payments set out in Schedule 8 ; | ||
|
|||
Encumbrance
|
means any mortgage, charge, pledge, lien, restriction, assignment, hypothecation, security interest, title retention or any other agreement or arrangement the effect of which is the creation of security, or any other interest, equity or other right of any person (including any right to acquire, option, right of first refusal or right of pre-emption), or any agreement or arrangement to create any of the same and Unencumbered shall be construed accordingly; |
5
Estimated Cash Amount
|
means the amount of Cash of the Group Companies as at the Effective Time designated as such in the Estimated Completion Statement which amount shall be estimated by the Sellers in good faith in accordance with the Accounting Policies; | ||
|
|||
Estimated Cash Shortfall
|
means the amount (if any) by which the Estimated Cash Amount is less than the Target Cash Amount; | ||
|
|||
Estimated Completion
Statement
|
has the meaning given in clause 5.1 ; | ||
|
|||
Estimated Consideration
|
means the sum of: | ||
|
|||
|
(i) US$720,000,000; less
|
||
|
|||
|
(ii) the Estimated Working Capital Shortfall (if any); less
|
||
|
|||
|
(iii) the Estimated Cash Shortfall (if any); less
|
||
|
|||
|
(iv) the Estimated Indebtedness Excess (if any); plus
|
||
|
|||
|
(v) the Interest Amount; less
|
||
|
|||
|
(v) (in the event only that the Consideration is to be
reduced in accordance with clause 3.4) the appropriate
amount set out in clause 3.4;
|
||
|
|||
Estimated Indebtedness
Amount
|
means the amount of Indebtedness of the Group Companies as at the Effective Time designated as such in the Estimated Completion Statement which amount shall be estimated by the Sellers in good faith in accordance with the Accounting Policies; | ||
|
|||
Estimated Indebtedness
Excess
|
the amount (if any) by which the Estimated Indebtedness Amount is more than the Indebtedness Target; | ||
|
|||
Estimated Working Capital
Amount
|
means the amount of Working Capital of the Group Companies as at the Effective Time designated as such in the Estimated Completion Statement which amount shall be estimated by the Sellers in good faith in accordance with the Accounting Policies; | ||
|
|||
Estimated Working Capital
Shortfall
|
the amount (if any) by which the Estimated Working Capital Amount is less than the Working Capital Target; | ||
|
|||
Event
|
has the meaning given in Schedule 13 ( Tax Indemnity ); | ||
|
|||
Financial Year
|
shall be construed in accordance with s390 CA 2006; | ||
|
|||
Fundamental Warranties
|
means the Warranties set out in paragraph 2 of Schedule 3 and Fundamental Warranty shall mean any one of them (as the context requires); |
6
FX Hedging Arrangements
|
means the foreign exchange hedging arrangements more particularly described in Schedule 12 ( FX Hedging Arrangements ); | ||
|
|||
General Meeting
|
means the annual general meeting of the Kuoni Guarantor to be convened for 20 April 2011 or such later date as either (i) the Sellers may agree or (ii) a court of competent jurisdiction may order; | ||
|
|||
Governmental or
Regulatory Authority
|
means any supranational or national court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality or other political subdivision thereof; | ||
|
|||
Group
|
means the Group Companies, taken as a whole; | ||
|
|||
Group Company
|
means the Companies and the Subsidiaries, further brief particulars of which are set out in the Group Schedule, and Group Companies shall mean any and all of them; | ||
|
|||
Group Reallocation
|
has the meaning given in Schedule 13 ( Tax Indemnity ); | ||
|
|||
Group Relief
|
has the meaning given in Schedule 13 ( Tax Indemnity ); | ||
|
|||
Group Schedule
|
means the list of corporate details of the Companies and the Subsidiaries in the agreed form; | ||
|
|||
Indebtedness
|
means the aggregate amount of such items of indebtedness as would properly be recognised as such in a balance sheet (but not, for the avoidance of doubt in a profit and loss statement) if the same were to be prepared in respect of the Group as at the Effective Time in accordance with US GAAP (which amount shall not, for the avoidance of doubt, include the Travelport Letters of Credit or the Travelport Letters of Guarantee or any ordinary course trading indebtedness); | ||
|
|||
Indebtedness Target
|
means US$0; | ||
|
|||
Indebtedness True-up
Amount
|
means the difference (if any) between the Actual Indebtedness Amount and the Estimated Indebtedness Amount (expressed as a negative number if the Actual Indebtedness Amount is greater than the Estimated Indebtedness Amount and a positive number if the Estimated Indebtedness Amount is greater that the Actual Indebtedness Amount); | ||
|
|||
Indemnities
|
means the indemnities set out in Schedule 17 ; | ||
|
|||
Information Participants
|
means the persons listed in part A of Schedule 16 ; | ||
|
|||
Intellectual Property
|
means any rights in or to intellectual property including without limitation, patents, trade marks, registered designs, domain names, applications for any of those rights, trade and business names, unregistered trade marks and service marks, logos, copyrights and rights in designs; |
7
Interest Amount
|
has the meaning given in clause 6.5; | ||
|
|||
Intra-Group Indebtedness
|
means all amounts owing as between any Group Company and any member of the Sellers Group (excluding any Intra-Group Trading Indebtedness), to the extent not settled at Completion pursuant to clause 5.3(ii), as set out in the Effective Time Statement; | ||
|
|||
Intra-Group Trading
Indebtedness
|
means all sums owing between any Group Company and any member of the Sellers Group in respect of intra-group trading activities; | ||
|
|||
Joint Engagement Letter
|
means the joint engagement between the Kuoni Guarantor and the Travelport Guarantor dated 4 March 2011 of the Sellers Accountants in connection with production of the Comfort Letters; | ||
|
|||
Key Employee
|
means those employees of the Group listed in part C of Schedule 16 ; | ||
|
|||
Law
|
means all laws, statutes, rules, regulations and other pronouncements having the effect of law of any country, state, province, city or other political subdivision thereof or of any Governmental or Regulatory Authority; | ||
|
|||
Leakage
|
means: | ||
|
|||
|
(i) any dividend, bonus or other distribution of capital,
income or profit declared, paid or made or any repurchase,
redemption, repayment or return of share or loan capital
(or any other relevant securities) by any Group Company to
any Seller or any Affiliate of that Seller;
|
||
|
|||
|
(ii) any payments made by any Group Company to (or assets
transferred to or liabilities assumed, indemnified, or
incurred by any Group Company for the benefit of) any
Seller or any Affiliate of that Seller (including with
respect to any share capital or other securities of any
Group Company);
|
8
|
(iii) the waiver by any Group Company of any amount owed to
that Group Company by any Seller or any Affiliate of that
Seller;
|
||
|
|||
|
(iv) the payment by any Group Company of any professional
fees or other transaction costs or expenses (including
bonus payments) in connection with the transactions
contemplated by this Agreement;
|
||
|
|||
|
(v) the payment of, or incurring of any obligation to pay,
any salary, bonus, fees or other sums to any employee,
consultant or officer other than those which are
contractually required to be paid in the ordinary course of
business;
|
||
|
|||
|
(vi) any Tax suffered in relation to any of the matters
referred to in paragraphs (i) to (iv) above; or
|
||
|
|||
|
(vii) agreeing, conditionally or otherwise, to do any of
the matters referred to in paragraphs (i) to
|
||
|
|||
|
(v) above, other than any Permitted Leakage Payment;
|
||
|
|||
Long Stop Date
|
means 31 May 2011 or such later date, if any, as the Sellers and the Purchasers may agree; | ||
|
|||
Management Accounts
|
means the unaudited combined balance sheets, profit and loss accounts, cash flow statements and consolidation schedules of the Wider Group as at the end of each monthly period for the twelve months ended on the Accounts Date, in the agreed form; | ||
|
|||
Management Accounts
Reconciliation Schedule
|
means the schedule of reconciliations relating to the Management Accounts in the agreed form; | ||
|
|||
Material Contract
|
means any written contract of any Group Company which (i) is not terminable on less than three months notice or (ii) which calls for payments by any party thereto in excess of US$10,000,000 in any one year (other than any contract with any employee of any Group Company) or (iii) which is otherwise material to the business of the Group; | ||
|
|||
Material Variance
|
means a difference of 10% or more in the adjusted EBITDA of the Group as set out in the Reconciliation Statement; | ||
|
|||
Parties
|
means the Sellers, the Travelport Guarantor, the Purchasers and the Kuoni Guarantor, and Party shall mean any of them; | ||
|
|||
Payment Statement
|
means a statement setting out the total consideration payable under clause 5.1 and the Balancing Amount payable by the Purchasers or the Sellers under clause 5.4 , as agreed and determined in accordance with Schedule 6 ( Effective Time Statements ); |
9
Payroll Participants
|
means the persons listed in part B of Schedule 16; | ||
|
|||
Permitted Leakage Payment
|
means: | ||
|
|||
|
(i) any payment which is provided for under the terms of
this Agreement;
|
||
|
|||
|
(ii) any payments made or agreed to be made by any Group
Company to (or assets transferred to or liabilities
assumed, indemnified, or incurred by any Group Company for
the benefit of) any Seller or any Affiliate of that Seller
(including with respect to any share capital or other
securities of any Group Company) under or pursuant to the
Pre-sale Reorganisation (including, without limitation, any
payments or movement of cash from any Group Company to any
Seller or member of the Sellers Group under or pursuant
thereto) or any Employee Payment; and
|
||
|
|||
|
(iii) any payment made or agreed to be made by any Group
Company to any Seller or any Affiliate of a Seller in the
ordinary course of business consistent with past practice
as to the volume of services and pricing (including,
without limitation, in respect of Intra-Group Trading
Indebtedness);
|
||
|
|||
Pre-sale Reorganisation
|
means the re-organisation of the Group Companies as set out in the Pre-sale Reorganisation Steps Plan; | ||
|
|||
Pre-sale Reorganisation
Steps Plan
|
means the step plan in the agreed form setting out the corporate actions to be taken to implement the Pre-sale Reorganisation; | ||
|
|||
Press Announcements
|
means the press announcements to be issued by or on behalf of the Sellers and the Kuoni Guarantor, respectively, each of which is in the agreed form; | ||
|
|||
Proceedings
|
means any proceeding, suit or action arising out of or in connection with this Agreement, whether contractual or non-contractual; | ||
|
|||
Properties
|
means the freehold and leasehold properties, summary details of which are set out in Schedule 9 ( Properties ); | ||
|
|||
Prospectus
|
means the prospectus of the Kuoni Guarantor proposed to be issued in connection with the capital increase to be approved by the General Meeting; | ||
|
|||
Purchasers Accountants
|
means PricewaterhouseCoopers LLP of 1 Embankment Place, London, WC2N 6RH; | ||
|
|||
Purchasers Group
|
means the Kuoni Guarantor and its subsidiaries and subsidiary undertakings from time to time, or all or any of them; |
10
Purchasers Solicitors
|
means Baker & McKenzie LLP of 100 New Bridge Street, London EC4V 6JA, England; | ||
|
|||
Reconciliation Statement
|
means the statement from the Travelport Guarantor (which is provided without liability so long as it is provided in good faith) setting out a reconciliation between the Audited Accounts and the Accounts, identifying those line items where reconciliations have been made and including the explanation for such reconciliations; | ||
|
|||
Relief
|
has the meaning given in Schedule 13 ( Tax Indemnity ); | ||
|
|||
Resolutions
|
means a shareholder resolution, approving an amendment to the articles of incorporation of the Kuoni Guarantor permitting a capital increase of approximately CHF250,000,000 by the issuance of fully paid-in registered shares A of a par value of CHF 0.20 each and fully paid-in registered shares B of a par value of CHF 1.00 each in the capital of the Kuoni Guarantor to be contained in the notice of annual general meeting anticipated to be sent by the Kuoni Guarantor to its shareholders on or around 28 March 2011, which resolutions shall not require in excess of 66.67% of the shareholders in attendance and voting at the General Meeting to ratify it; | ||
|
|||
Restricted Actions
|
means the actions referred to in Schedule 5 ( Restricted Actions ), and Restricted Action means any and all of them; | ||
|
|||
s.179A TCGA Election
|
has the meaning given in paragraph 11.8 of Schedule 13 ( Tax Indemnity ); | ||
|
|||
Sale Business Employee
|
means any employee of any Group Company as at Completion; | ||
|
|||
Sellers Accountants
|
means Deloitte LLP of Stonecutter Court, 1 Stonecutter Street, London, EC4A 3TR; | ||
|
|||
Sellers Bank Account
|
means the bank account with the following details: | ||
|
|||
|
Bank: Citibank | ||
|
Currency: USD | ||
|
Account Name: Gullivers Services Limited | ||
|
Account Number: 30742881 | ||
|
Swift Code: CITIUS33; | ||
|
|||
Sellers Group
|
means Travelport Limited and it subsidiaries and subsidiary undertakings (excluding the Group Companies) as at the date hereof; | ||
|
|||
Sellers Solicitors
|
means Kirkland & Ellis LLP of 30 St. Mary Axe, London EC3A 8AF; |
11
Service Document
|
means a claim form, application notice, order, judgment or other document relating to any Proceedings; | ||
|
|||
Shares
|
means all of the issued and outstanding shares in the capital of the Companies that are corporations and all of the issued and outstanding limited liability company membership interests in the Companies that are limited liability companies, as set out in column (3) of Schedule 1 ( The Sellers ), together with any shares issued pursuant to a capitalisation of the loans pursuant to paragraph (ix) of Part A1 of Schedule 2 ; | ||
|
|||
Subsidiaries
|
means the subsidiaries and subsidiary undertakings of the Companies (each being a Subsidiary ), and details of each Subsidiary at the date of this Agreement are set out in Schedule 4 ; | ||
|
|||
Target Cash Amount
|
means US$15,000,000; | ||
|
|||
Tax
|
means (i) all forms of and payments in respect of taxation, whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, sales, added value or other reference (including, without limitation duties, air passenger duties, levies, imposts and excise, social security contributions and any other payroll taxes, deductions or amounts in the nature of taxation), whenever and wherever imposed (whether imposed by way of a withholding or deduction for or on account of tax or otherwise) by whatever authority imposed and whether of the United Kingdom or elsewhere, irrespective of the person directly or primarily chargeable, together with all penalties, fines, charges, costs and interest relating thereto; and (ii) any payment for the surrender of Group Relief or for any Group Reallocation, a balancing payment under Sections 195 and 196 of TIOPA following a transfer pricing adjustment, a repayment of any such payment and a payment by way of reimbursement, recharge, indemnity or damages in respect of Tax; | ||
|
|||
Tax Authority
|
means any government, state or municipality or any local, state, federal or other fiscal, revenue, customs or excise authority, person, body, authority or institution which seeks to impose, assess, enforce, administer or collect any Tax, whether in the United Kingdom or elsewhere; | ||
|
|||
Tax Indemnity
|
means the indemnity relating to Tax in Schedule 13 ( Tax Indemnity ); | ||
|
|||
Tax Warranties
|
means the warranties relating to Tax in Part 7 of Schedule 3 ( Tax Warranties ) | ||
|
|||
TCGA 1992
|
means Taxation of Chargeable Gains Act 1992; | ||
|
|||
TIOPA
|
means the Taxation (International and Other Provisions) Act 2010; |
12
Transaction
|
means the sale and purchase of the Shares contemplated by this Agreement; | ||
|
|||
Transitional Services
Agreement
|
means the transitional services agreement to be entered into on or promptly following Completion; | ||
|
|||
Travelport Accounts
|
means the audited consolidated accounts of Travelport Limited as at 31 December 2010; | ||
|
|||
Travelport Audited
Financials
|
means the audited consolidated financial statements of the Travelport Guarantor for each of the three financial periods ending on 31 December 2010 as set out in the F pages of the Travelport Guarantors 10 Ks for each of those periods; | ||
|
|||
Trapped Cash
|
means any cash which as at the Effective Time is: | ||
|
(i) not capable within a period of 30 days of being lawfully spent, distributed, loaned or released by a Group Company outside the jurisdiction in which it is situated without deduction or withholding or additional cost (other than the costs of transfer from a bank account incurred in the ordinary course); | ||
|
|||
|
(ii) cash equivalents which are not convertible into cash within 30 days, | ||
|
|||
|
provided always that the first US$3 million of cash which would, but for this proviso, be Trapped Cash, shall be deemed for all purposes to be Cash and not Trapped Cash; | ||
|
|||
Travelport Credit
Agreement
|
means the Third Amended and Restated Credit Agreement, dated as of August 23, 2006, as amended and restated as of October 22, 2010 and as may be amended and restated from time to time, among Travelport LLC, Travelport Limited, Waltonville Limited, UBS AG, Stamford Branch, as Administrative Agent and L/C Issuer, UBS Loan Finance LLC, as Swing Line Lender, the other Lenders party thereto, Credit Suisse Securities (USA) LLC, as Syndication Agent, and Lehman Brothers Inc., J.P. Morgan Securities Inc. and Goldman Sachs Credit Partners L.P., as Co-Documentation Agents; | ||
|
|||
Travelport Letters of
Credit
|
means the letters of credit listed in part 2 of Schedule 11 ; | ||
|
|||
Travelport Letters of
Guarantee
|
means the guarantees listed in part 1 of Schedule 11 ; | ||
|
|||
US APA
|
means the asset purchase agreement relating to the US aspects of the Pre-sale Reorganisation in the agreed form; | ||
|
|||
US GAAP
|
means generally accepted accounting principles for the United States of America and extant/mandatory for adoption as at the date of this Agreement; |
13
US$
,
$ or
United
States Dollar
|
means the lawful currency of the United States of America; | ||
|
|||
VAT
|
means any VAT imposed in compliance with the European Council directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112), any goods or services tax or sales tax and any comparable indirect tax, whether of the United Kingdom or elsewhere; | ||
|
|||
Warranties
|
means the warranties set out in Schedule 3 ( Warranties ) and Warranty shall be construed accordingly; | ||
|
|||
Wider Group
|
means the Group, together with Gullivers Services Limited, Gullivers Jersey 3 Limited and Gullivers Luxembourg SARL; | ||
|
|||
Working Capital
|
means the working capital of the Group comprising those items of current assets and current liabilities set out in the Actual Working Capital Statement; | ||
|
|||
Working Capital Shortfall
|
the amount (if any) by which the Actual Working Capital Amount is less than the Estimated Working Capital Amount; | ||
|
|||
Working Capital Target
|
means negative US$185,000,000; | ||
|
|||
Working Capital True-up
Amount
|
means the lesser of: (i) the amount (if any) by which the Actual Working Capital Amount exceeds the Estimated Working Capital Amount; and (ii) the Estimated Working Capital Shortfall, expressed as a positive number; and | ||
|
|||
Working Hours
|
means 9.00 a.m. local time to 5.30 p.m. local time on a Business Day. |
1.2 | In this Agreement, unless otherwise specified: |
(i) | references to clauses, paragraphs, sub paragraphs and Schedules are to clauses, paragraphs, sub paragraphs of, and Schedules to, this Agreement; | ||
(ii) | a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re enacted except to the extent that any amendment or modification made or coming into effect of any statute or statutory provision after the date of this Agreement would increase or alter the liability of the Sellers under this Agreement; | ||
(iii) | references to a company shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established; | ||
(iv) | references to a person shall be construed so as to include any individual, firm, company, government, state or agency of a state or any joint venture, association or partnership (whether or not having separate legal personality); |
14
(v) | references to the word include or including (or any similar term) are not to be construed as implying any limitation and general words introduced by the word other (or any similar term) shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; | ||
(vi) | references to any English statutory provision or legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or other legal concept, state of affairs or thing shall in respect of any jurisdiction other than England be deemed to include that which most nearly approximates in that jurisdiction to the English statutory provision or legal term or other legal concept, state of affairs or thing; | ||
(vii) | use of any genders includes the other genders; | ||
(viii) | the expressions company, holding company, subsidiary, subsidiary undertaking and wholly owned subsidiary shall have the meaning given in the CA 2006; | ||
(ix) | a person shall be deemed to be connected with another if that person is connected with another within the meaning of sections 1122 and 1123 of the Corporation Tax Act 2010; | ||
(x) | references to writing shall include any modes of reproducing words in a legible and non transitory form; | ||
(xi) | references to times of the day are to London time; | ||
(xii) | headings to clauses and Schedules are for convenience only and do not affect the interpretation of this Agreement; | ||
(xiii) | the Recitals and Schedules form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include the Schedules; and | ||
(xiv) | references to any document in the agreed form means the document in a form agreed by the Purchasers and the Sellers and initialled for the purposes of identification only by the Purchasers and the Sellers. |
2. | SALE AND PURCHASE | |
2.1 | The Sellers shall sell the Shares and the Purchasers shall purchase all of the Shares free from all Encumbrances and from all other restrictions on transfer (including rights of pre-emption) which may exist in relation to the Shares, whether under the articles of association of the Companies or otherwise, together with all rights attached or accruing to them at Completion including the right to receive all dividends, distributions or any return of capital declared, paid or made after the Completion Date. | |
3. | CONDITION | |
3.1 | The sale and purchase of the Shares pursuant to this Agreement is conditional upon the Resolutions being duly passed at the General Meeting. | |
3.2 | The Travelport Guarantor shall, pursuant to the terms of the Audit Engagement Letter, instruct the Sellers Accountants to deliver the Audit Deliverables, and the Travelport Guarantor and the Kuoni Guarantor shall, pursuant to the terms of the Joint Engagement Letter, jointly instruct the Sellers Accountants to deliver the Comfort Letters and the |
15
Travelport Guarantor shall deliver to the Kuoni Guarantor the Reconciliation Statement, in each case, to the Travelport Guarantor and the Kuoni Guarantor at their respective addresses for service (as provided for in clause 23 ( Notices )) as soon as reasonably practicable following the date of this Agreement and in any event by no later than 5.30 pm CET on 25 March 2011. Save as provided for in clause 3.4, there shall be no liability for any Party in respect of the failure of the Sellers Accountants to comply with these instructions. | ||
3.3 | Provided that there is no Material Variance and subject to the fiduciary duties of its board of directors, the Kuoni Guarantor shall: |
(i) | procure that its board of directors will post or procure the posting on a timely basis of an invitation (which invitation shall include the Board Recommendation) to the shareholders of the Kuoni Guarantor to convene the General Meeting for the purposes of: (a) passing the Resolutions; and (b) transacting such other business as is to be transacted at the annual general meeting of the Kuoni Guarantor; | ||
(ii) | take all steps necessary and within its control to ensure that the Resolutions are passed at the General Meeting and, from the date hereof until the earlier of the Long Stop Date and the time when the shareholder vote in respect of the Resolutions at the General Meeting actually takes place, the Kuoni Guarantor shall: |
(a) | procure that no member of the Purchasers Group nor any of their respective directors, officers or agents, nor any senior executive employees (the Primary Persons ) takes; and | ||
(b) | instruct those advisers who have been engaged by any member of the Purchasers Group to advise on the Transaction or the financing thereof (the Secondary Persons ) not to take, |
any action or omit to take any action that, in any such case, is reasonably likely to influence any shareholder of the Kuoni Guarantor to vote otherwise than in favour of the Resolutions at the General Meeting. In particular, but without prejudice to the generality of the foregoing, the Kuoni Guarantor undertakes to procure that none of the Primary Persons shall and to instruct the Secondary Persons not to (directly or indirectly through one or more persons): |
(c) | recommend to any shareholder of the Kuoni Guarantor to vote otherwise than in favour of the Resolutions at the General Meeting; or | ||
(d) | encourage any shareholder of the Kuoni Guarantor to vote otherwise than in favour of the Resolutions; or | ||
(e) | otherwise seek to influence any shareholder voting otherwise than in favour of the Resolutions, |
it being acknowledged that the Kuoni Guarantor shall not have any liability in respect of any failure by any Secondary Person to accept or comply with any such instruction. |
3.4 | If the Deliverables are delivered: |
(i) | on or prior to 29 March 2011, there shall be no adjustment to the Consideration under this clause 3.4; | ||
(ii) | on 30 March 2011, but Completion nevertheless takes place, the Consideration shall be reduced by $3,500,000; or |
16
(iii) | on or following 31 March 2011, but Completion nevertheless takes place, the Consideration shall be reduced by US$7,000,000. |
3.5 | Subject always to the fiduciary duties of its board of directors, the Kuoni Guarantor shall not take or cause to be taken any action which could reasonably be expected to delay or prevent Completion. | |
3.6 | If the Condition is not satisfied or fulfilled on or before 5.00pm GMT on the Long Stop Date, then this Agreement shall terminate and the Kuoni Guarantor shall (otherwise than in the circumstances described in clauses 3.4(iii) or if there is a Material Variance) pay to the Sellers in immediately available funds by electronic funds transfer to the Sellers Bank Account (i) US$7 million as a break fee and (ii) US$2 million to be applied towards retention bonus payments to be made to Group employees. | |
3.7 | If this Agreement terminates in accordance with clause 3.6, the obligations of the Parties under this Agreement shall end (except for the provisions of this clause 3.7 and clauses 1 (Interpretation), 23 (Notices), 24 (Announcements), 25 (Confidentiality), 26 (Costs and expenses), 30 (Governing Law) and 31 (Jurisdiction)) but (for the avoidance of doubt) all rights and liabilities of the Parties which have accrued before termination shall continue to exist. | |
3.8 | The Kuoni Guarantor shall give the Sellers written notice of the satisfaction of the Condition set out in clause 3.1 as promptly as practicable following satisfaction of such Condition, and in any event within 1 (one) Business Day thereof. | |
3.9 | Prior to Completion (subject to compliance by the Purchasers with their obligations hereunder), the Sellers shall procure that the Group Companies shall continue to provide reasonable access to their premises and books and records during normal business hours so as to enable the Sellers Accountants to produce the Audited Accounts. | |
4. | CONDUCT OF BUSINESS BEFORE COMPLETION | |
4.1 | The Sellers shall use reasonable endeavours to procure that the Business is conducted in the ordinary course during the period from the date of this Agreement to Completion, and shall, without limitation, pay or procure payment of all amounts as are due and payable as up to Completion in relation to the refit of Units 705B-708 A, 8 th Floor, Tower B, Manulife Financial Centre, Kwun Tung, Hong Kong. Subject to clause 4.2, the Sellers shall use reasonable endeavours to procure that between the date of this Agreement and Completion no Group Company shall undertake any of the Restricted Actions without the prior written consent of the Purchasers (such consent not to be unreasonably withheld or delayed). | |
4.2 | Clause 4.1 and 4.3 shall not operate so as to restrict or prevent: |
(i) | any matter reasonably undertaken by any Group Company in an emergency or disaster situation with the intention of minimising any adverse effect thereof (and of which the Purchasers will be promptly notified and, in respect of which, it will, provided reasonably practicable, be consulted) only for so long as such emergency or disaster situation continues and/or solely to the extent necessary to mitigate the effects of such emergency or disaster situation; | ||
(ii) | the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by any Group Company prior to the date of this Agreement or any extension or renewal of any such contract or arrangement where the net aggregate amount of such extensions or renewals does not increase the annual expenditure of the Group thereunder by more than US$5,000,000; |
17
(iii) | any increase in emoluments of any category of employees of any Group Company where such increase is made in accordance with the normal practice of the relevant employing Group Company; | ||
(iv) | any matter contemplated in this Agreement; | ||
(v) | any action or step lawfully taken for the purposes of, or with a view to, transferring or otherwise moving Cash from any Group Company to any Seller or any Affiliate of a Seller; | ||
(vi) | any action or step lawfully taken for the purposes of, or with a view to managing the working capital of the Group with a view to ensuring that the Actual Working Capital Amount is not more or less than the Working Capital Target (provided that any such action or step does not materially adversely affect the goodwill of the business of the Group or otherwise place any Group Company in material breach of its payment obligations to suppliers); | ||
(vii) | any lawful action or step taken for the purposes of or pursuant to the Pre-sale Reorganisation (including, without limitation, the execution and putting into effect of the US APA); | ||
(viii) | any matter undertaken for the purposes of complying with Law or the rules or regulations of any securities exchange or Governmental or Regulatory Authority, wherever situated; | ||
(ix) | any matter undertaken at the written request of the Purchasers; | ||
(x) | entering into any contract or arrangement in the ordinary course of business including, but not limited to, any customer hotel inventory or destination service agreements; | ||
(xi) | any charge or fee being levied on a Group Company by a member of the Sellers Group in respect of, or payment by any Group Company in respect of, such charge or fee relating to, the Travelport Letters of Credit on a basis consistent with past practice; | ||
(xii) | the disposal of that certain real property in Hong Kong belonging to the Group, details of which are set out in the Disclosure Letter; | ||
(xiii) | the implementation of a new retention bonus programme for employees of the Group in aggregate amount not exceeding $2,000,000 provided that the Sellers agree to fund any such retention bonus plan; | ||
(xiv) | closing out the FX Hedging Arrangements and any other foreign exchange hedging agreements in respect of which a Group Company has a direct interest (it being acknowledged and agreed that all gains or losses arising from the closing out of all such arrangements shall be for the account of the Sellers); or | ||
(xv) | the transfer of any domain names currently owned by or registered in the name of any Group Company containing the words Galileo Destinations and G-Destinations or similar into the name of a member of the Sellers Group. |
4.3 | The Sellers undertake they shall not and shall exercise such rights of control with respect to the Group as they may have to ensure that the Group shall not, between the date of this Agreement and Completion, deliberately take any action which is within their or its control or deliberately omit to take any action which is within their or its control, which action will |
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cause any of the Warranties to be breached in any material respect were the Warranties to be extant as at that time. | ||
4.4 | The Sellers undertake that they shall, on or prior to Completion, pay to the relevant Group Company an amount equal to any shortfall in the accrual in the Accounts in respect of the SIPs plan. | |
4.5 | The Travelport Guarantor hereby agrees to the inclusion in the Prospectus of the Audited Accounts and the Travelport Audited Financials. | |
5. | CONSIDERATION | |
5.1 | Not less than five Business Days prior to the Completion Date, the Sellers shall deliver to the Purchasers a statement (the Estimated Completion Statement ) setting out the following: |
(i) | the Estimated Cash Amount; | ||
(ii) | the Estimated Cash Shortfall (if any); | ||
(iii) | the Estimated Working Capital Amount; | ||
(iv) | the Estimated Working Capital Shortfall (if any); | ||
(v) | the Estimated Indebtedness Amount (including a break-down between the Indebtedness and the Intra-Group Indebtedness); | ||
(vi) | the Estimated Indebtedness Excess (if any); | ||
(vii) | the Interest Amount (if any); | ||
(viii) | the reduction in the Consideration (if any) to be made in accordance with clause 3.4; and | ||
(ix) | the Estimated Consideration. |
The Sellers shall give the Purchasers the opportunity to review the Estimated Completion Statement and shall discuss any items therein with which the Purchasers may disagree but for the avoidance of doubt the Purchasers shall not have the right to agree or otherwise refuse to accept the Estimated Completion Statement provided to it hereunder. | ||
5.2 | The Estimated Consideration shall be paid or satisfied in accordance with clause 7 and shall be divided amongst the Sellers as set out in column 4 of Schedule 1 ( The Sellers ). Payment of the Estimated Consideration shall be made in cash in United States dollars in immediately available funds by electronic funds transfer to the Sellers Bank Account on the Completion Date. | |
5.3 | The Sellers shall: |
(i) | use their respective reasonable endeavours to procure that before Completion all Indebtedness is fully repaid; and | ||
(ii) | procure that before Completion all Intra-Group Indebtedness (whether due to or owing by any Group Company), is fully repaid or capitalised. |
The Parties shall ensure that all Intra-Group Trading Indebtedness outstanding as at Completion is settled in the ordinary course following Completion. |
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5.4 | After final agreement on, or final determination of, the Effective Time Statements in accordance with Schedule 6 ( Effective Time Statements ), the following payments shall be made: |
(i) | if the Balancing Amount is zero, no payment shall be made by either the Sellers or the Purchasers; | ||
(ii) | if the Balancing Amount is a positive number, the Purchasers shall pay to the Sellers an amount equal to the Balancing Amount in cash in United States Dollars in immediately available funds by electronic funds transfer to the Sellers Bank Account; or | ||
(iii) | if the Balancing Amount is a negative number, an amount equal to the Balancing Amount (for these purposes expressed as a positive amount) shall be paid by, or on behalf of, the Sellers in cash in United States Dollars in immediately available funds by electronic funds transfer to such account of the Purchasers as the Purchasers may nominate in writing not less than five Business Days prior to the date of payment, in the percentages shown opposite their names in column 4 of Schedule 1 ( The Sellers ). |
5.5 | Any payment to be made under clause 5.4 above shall be made within five Business Days after (and excluding) the date on which the Effective Time Statements are agreed or determined in accordance with Schedule 6 (Effective Time Statements) and such payment (and any payment under clause 5.2) shall be an absolute discharge to the person making the payment who shall not be concerned with the subsequent application of the amount paid. | |
5.6 | Accordingly, subject to any adjustment as provided for in clause 5.7, the total consideration (in aggregate, the Consideration ) for the sale of the Shares under this Agreement shall be: |
(a) | the Estimated Consideration; plus or minus (as the case may be) | ||
(b) | the Balancing Amount (if any). |
5.7 | Any payment made by any of the Sellers to the Purchasers pursuant to clause 9 ( Warranties and Indemnities ), Schedule 13 ( Tax Indemnity ) or Schedule 17 ( Indemnities ) or will be considered an adjustment to the Consideration. | |
5.8 | The Consideration shall be allocated among the Shares as set out in column 4 of Schedule 1 ( The Sellers ) and such allocation shall be adopted by the parties for all Tax and accounting purposes. If a payment is made by the Sellers to the Purchasers or by the Purchasers to the Sellers in respect of any claim for any breach of this Agreement or pursuant to any indemnity or covenant to pay under this Agreement, the payment shall be made by way of adjustment of that portion of the Consideration allocated to the Shares to which the payment and/or claim most closely relates and the Consideration shall be deemed to be adjusted by the amount of such payment. If any claim or payment relates to Shares in more than one Company, it shall be allocated in a manner which most reasonably reflects the matter to which the claim or payment relates. Where the claim or payment relates to no particular Shares in any Company, it shall be allocated rateably among the Shares by reference to the proportions in which the Consideration is allocated in Schedule 1 ( The Sellers ). Any such allocation shall be deemed to be an adjustment to the Consideration payable for such Shares to the Sellers by the Purchasers. | |
5.9 | The Sellers and the Purchasers shall prepare and file all Tax returns to be filed with any Taxation Authority in a manner consistent with such allocation and shall take no position inconsistent with such allocation on any Tax return, any discussion with or proceeding before any Taxation Authority, or otherwise. In the event that the allocation of the Consideration pursuant to clause 5.8 is disputed by any Taxation Authority, the Party receiving notice of |
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such dispute shall promptly notify the other Parties thereof and the Parties will use their best endeavours to defend such allocation. | ||
5.10 | The Purchasers shall provide to Sellers a properly completed U.S. Internal Revenue Service Form 8594 with respect to GTA Americas LLC allocating the consideration as determined in accordance with clause 5.8 above at or prior to Completion. In addition, the Purchasers shall provide to the Sellers a properly completed U.S. Internal Revenue Service Form 8883 with respect to Octopus Travel.com (USA) Ltd, together with a section 338(h)(10) election for Octopus Travel.com (USA) Ltd. The Sellers shall not take any position that is inconsistent with these forms. | |
6. | LEAKAGE | |
6.1 | Subject to clause 6.3, each Seller undertakes to the Purchasers that from the Effective Time until Completion no Leakage will occur. | |
6.2 | In the event of any Leakage occurring between the Effective Time and Completion, each Seller shall on demand by the Purchasers pay to the Purchasers in immediately available funds by electronic funds transfer an amount in cash equal to the amount of any such Leakage. If any of the Sellers or their Affiliates receive any Leakage, the Sellers will forthwith notify the Purchasers of the same. | |
6.3 | Notwithstanding clause 6.1, if any Cash received by a Group Company is recognised in the cash book of the relevant entity by the Effective Time, the Sellers shall, subject to the other provisions of this Agreement, be entitled to extract such Cash from the Group between the Effective Time and Completion. | |
6.4 | The aggregate maximum liability of each Seller for all breaches of the undertaking given by it in clause 6.1 shall not in any circumstances exceed the amount received by each Seller at Completion pursuant to this Agreement less the aggregate amount of any claims hereunder by the Purchasers that have been finally determined or agreed. | |
6.5 | The Consideration shall be increased by an amount (the Interest Amount ) calculated in accordance with the following formula: | |
Interest Amount = A x B x $720 million | ||
Where: | ||
A = the number of days from (but excluding) 30 April 2011 to and excluding the Completion Date divided by 365; and | ||
B = 9% | ||
7. | COMPLETION | |
7.1 | Completion shall take place on the Completion Date at the offices of the Sellers Solicitors at 30 St. Mary Axe, London EC3A 8AF or such other place as the Parties may agree. | |
7.2 | At Completion, the Sellers shall comply with their obligations under Part A1 ( Sellers obligations ) of Schedule 2 ( Completion and Post-Completion arrangements ). | |
7.3 | At Completion, the Purchasers shall: |
(i) | if not already provided to the Sellers, produce evidence of fulfilment of the Condition; and |
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(ii) | comply with their obligations under Part B1 ( Purchasers obligations ) of Schedule 2 ( Completion and Post-Completion arrangements ). |
7.4 | Neither the Purchasers nor the Sellers shall be obliged to complete the sale and purchase of any of the Shares unless the sale and purchase of all of the Shares is completed simultaneously. | |
7.5 | Without prejudice to any rights of the Purchasers, if the obligations of the Sellers under clause 7.2 are not complied with on the Completion Date the Purchasers may: |
(i) | defer Completion to a date not more than ten (10) Business Days after the date on which Completion was originally scheduled to take place (so that the provisions of this clause 7 shall apply to Completion as so deferred); or | ||
(ii) | proceed to Completion as far as practicable (without limiting its rights under this Agreement); or | ||
(iii) | to the extent that the Sellers have failed to comply with their respective obligations under clause 7.2 following the expiry of the ten (10) Business Days extension referred to in sub-paragraph (i) above, terminate this Agreement by notice in writing to the Sellers. |
7.6 | Without prejudice to any rights of the Seller, if the obligations of the Purchasers under clause 7.3 are not complied with on the Completion Date, the Sellers may: |
(i) | defer Completion to a date not more than ten (10) Business Days after the date on which Completion was originally scheduled to take place (so that the provisions of this clause 7 shall apply to Completion as so deferred); or | ||
(ii) | proceed to Completion as far as practicable (without limiting their rights under this Agreement); or | ||
(iii) | to the extent that the Purchasers have failed to comply with their obligations under clause 7.3 following the expiry of the ten (10) Business Days extension referred to in sub-paragraph (i) above, terminate this Agreement by notice in writing to the Purchasers. |
7.7 | If this Agreement is terminated in accordance with clause 7.5 or clause 7.6, all obligations of the Parties under this Agreement shall end (except for the provisions of clauses 1 ( Interpretation ), 23 ( Notices ), 24 ( Announcements ), 25 ( Confidentiality ), 26 ( Costs and expenses ), 30 ( Governing Law ) and 31 (Jurisdiction)) but (for the avoidance of doubt) all rights and liabilities of the Parties which have accrued before termination shall continue to exist. | |
7.8 | Except in respect of fraud, fraudulent misrepresentation or fraudulent concealment, no Party shall be entitled in any circumstances to rescind or terminate this Agreement after Completion. | |
8. | POST-COMPLETION OBLIGATIONS | |
8.1 | Each Seller undertakes to the Purchasers to procure the performance and observance of those matters listed in Part A2 of Schedule 2. | |
8.2 | Each Purchaser undertakes to the Sellers to procure the performance and observance of those matters listed in Part B2 of Schedule 2. |
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9. | WARRANTIES | |
9.1 | Each Seller severally (and not jointly and severally) warrants in respect of itself only to the Purchasers that each of the Fundamental Warranties is now and will at Completion (by reference to the facts and circumstances then existing) be true and accurate. | |
9.2 | The maximum liability of each of the Sellers in respect of any claim under the Fundamental Warranties shall not exceed the aggregate amount of the Consideration received by such Seller. | |
9.3 | Each Seller severally (and not jointly and severally) warrants in respect of itself only to the Purchasers that, so far as such Seller is actually aware, each of the Business Warranties is true and accurate at the date of this Agreement subject to: |
(i) | any matter Disclosed in the Disclosure Letter (or treated by the Disclosure Letter as being Disclosed); and | ||
(ii) | the limitations and qualifications set out in Schedule 14 ( Limitations of Liability ). |
For the purposes of this Agreement, the actual awareness of a Seller shall consist only of those matters of which, Ken Esterow (EVP, president and CEO Gullivers Travel Associates), Chris Tyson (Travelport Treasurer), Simon Gray (Chief Accounting Officer, Travelport), Tim Hampton (Group Vice President, Tax) and Julia Kou (Group Vice President, Legal) is actually aware, as at the date of this Agreement, having made reasonable enquiries of, the Key Employees, Douglas Neu (Group Vice President, Law) and Eric Bock (EVP, Chief Administrative Officer and General Counsel) but not any imputed or implied knowledge or awareness he or she may have had, had he/she made any enquiry of any other person in relation to the facts, matters or circumstances of any particular Warranty. | ||
9.4 | No letter, document or other communication (whether or not in writing) shall be deemed to constitute a Disclosure unless it is expressly incorporated into the Disclosure Letter. | |
9.5 | Each of the Warranties shall be separate and independent and, save as expressly provided to the contrary in this Agreement, shall not be limited by reference to or inference from any other Warranty or anything in the Definitive Agreements. | |
9.6 | Each of the Sellers and the Travelport Guarantor hereby irrevocably waive, and shall procure that each member of the Sellers Group shall irrevocably waive, any and all claims arising as a result of events prior to Completion against each Group Company and any of their respective officers, employees, workers and, in connection only with the sale of the Shares, the agents of the Purchasers Group (including, without limitation, the Group) and undertake (if any claim is made against the Sellers in connection with the sale of the Shares to the Purchasers) not to make any claim against or seek any contribution from any such person (and undertake that no other person claiming under or through them will make any such claim or seek any such contribution). The waiver set out in this clause 9.6 shall cease to apply in the case of fraud on the part of the beneficiary of such waiver. | |
9.7 | The Purchasers, on behalf of themselves and each other member of the Purchasers Group, hereby, irrevocably waives any and all claims arising as a result of events prior to Completion against the officers, employees, workers and, in connection only with the sale of the Shares, the agents of the Sellers Group and undertakes (if any claim is made against the Sellers in connection with the sale of the Shares to the Purchasers) not to make any claim against or seek any contribution from any such person (and undertake that no other person claiming under or through them will make any such claim or seek any such contribution). The waiver set out in this clause 9.7 shall cease to apply in the case of fraud on the part of the beneficiary of such waiver. |
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9.8 | The provisions of Schedule 17 shall apply. |
10. | RESTRICTIVE COVENANTS |
10.1 | Subject to clause 10.2, each of the Sellers and the Travelport Guarantor covenants with the Purchasers and each Group Company (with the intention of assuring to the Purchasers the full benefit and value of the goodwill and connections of the Group and as a constituent part of the agreement for the sale of the Shares) that, except with the consent in writing of the Purchasers: |
(i) | for the period of 2 years after Completion, it will not either on its own account or in conjunction with or on behalf of any other person (other than as a holder of shares in a company carrying on such a business where the shareholding is for investment purposes only and does not confer a degree of control amounting to or exceeding material influence over the business in question) carry on or be engaged, concerned or interested, directly or indirectly, whether as shareholder, director, partner, agent or otherwise, in any business engaged in the provision of escorted tours or wholesale distribution of hotel and other accommodation services to tour operators, travel agents and other wholesalers as carried on at the date of this Agreement by any Group Company (a Competing Business ); |
(ii) | for the period of 2 years after Completion, it will not either, on its own account or in conjunction with or on behalf of any other person, solicit or entice away or attempt to solicit or entice away from any Group Company, offer employment to or employ, or offer to conclude any contract of services with, any Key Employee; |
(iii) | it will not at any time hereafter make use of or disclose or divulge to any person (other than to officers or employees of any Group Company whose province it is to know the same) any information (other than any information properly available to the public (otherwise than, directly or indirectly, as a result of a breach of this clause) or disclosed or divulged pursuant to an order of a court of competent jurisdiction or the rules of any Governmental or Regulatory Authority, including stock exchange rules and regulations) relating to any Group Company, the identity of its customers and suppliers, its products, finances, contractual arrangements, business or methods of business; |
(iv) | it will not at any time hereafter, save as otherwise provided herein, in relation to any trade, business or company use a trade name, trade or service mark, design or logo including any of the words Gullivers, GTA, Octopus, or Travelcube or any word confusingly similar thereto (other than Travelport) in such a way as to be capable of or likely to be confused with any trade name, trade or service mark, design or logo of any Group Company (whether registered or not). |
10.2 | The undertakings in clause 10.1 do not prohibit any Seller, the Travelport Guarantor or any Affiliate of a Seller or the Travelport Guarantor from: |
(i) | holding or being interested in up to 10% of the outstanding issued share capital of a company listed on the Official List and admitted to trading by London Stock Exchange plc or traded on AIM or any other internationally reorganised stock exchange; |
(ii) | fulfilling any obligation pursuant to any of the Definitive Agreements (including, without limitation, providing services to a Group Company in accordance with the Transitional Services Agreement); |
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(iii) | continuing its or their business as presently carried on or as such businesses may evolve or develop or by acquisition of other GDS businesses, including without limitation in relation to the electronic distribution of hotel inventory to travel agents and other travel intermediaries whereby the travel intermediary utilises the Travelport GDS system to access hotel rates and availability and to confirm reservations between itself and the hotel using the Travelport GDS system, in a manner consistent with other industry participants, including but not limited to Sabre and Amadeus; |
(iv) | without prejudice to the generality of (iii) above to, continue or evolve or develop, the business or operations of or related to, the product offering or product line presently characterised as or pertaining to Travelport Leisure or Sprice (Travelport Leisure presently carrying on the business of distributing and facilitating the sale of wholesale hotel and other accommodations, pre-packaged and self packaged tours and related travel services offered by multiple providers (such as the Group Companies and the Purchaser) to the client base of Travelport via the internet and Sprice presently carrying on the business of a hotel and airfare comparison website which also sells hotel rooms and airline tickets to consumers and to the client base of Travelport via the internet); |
(v) | being interested (whether directly or indirectly) in any equity or debt securities issued by Orbitz Worldwide, Inc. or any successor entity thereof or any of its or their subsidiaries or subsidiary undertakings; |
(vi) | acquiring those securities of Orbitz Worldwide, Inc. (or its successor) not presently owned by the Sellers Group; |
(vii) | acquiring, directly or indirectly, shares in or the whole or any part of the undertaking or assets of any company which carries on a Competing Business provided that such business or interest therein is acquired as part of a larger acquisition or series of related acquisitions and the value properly attributable to such part carrying on the Competing Business does not at the date of acquisition amount to more than 10% of the value of such larger acquisition or series of related acquisitions taken as a whole; or |
(viii) | engaging a Key Employee who: |
(a) | responds to a general, non-targeted recruitment campaign; or |
(b) | whose employment with the Group has been terminated after Completion by the Purchasers. |
10.3 | For the avoidance of doubt, the acquisition of the Travelport Guarantor whether by way of acquisition of shares or merger or otherwise (or of the whole or a substantial part of the business, assets or undertakings of the Sellers Group) by a person, in circumstances where that person or its Affiliates (other than members of the Sellers Group) carry out or are engaged, concerned or interested, directly or indirectly, whether as a shareholder, director, partner, agent or otherwise, in a Competing Business (otherwise than by virtue of such acquisition) shall not of itself constitute a breach by any member of the Sellers Group or that person of the undertakings in this clause 10. |
10.4 | Each of the restrictions contained in clause 10.1 is separate and severable and in the event of any such restriction being determined to be unenforceable in whole or in part for any reason, that unenforceability shall not affect the enforceability of the remaining restrictions or (in the case of restrictions unenforceable in part) the remainder of that restriction. |
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10.5 | While the restrictions contained in clause 10.1 are considered by the Parties to be reasonable in all the circumstances, it is recognised that restrictions of the nature in question may fail for technical reasons and accordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the circumstances for the protection of the interests of the Purchasers but would be valid if part of the wording thereof were deleted or the periods thereof reduced or the range of activities or area dealt with thereby reduced in scope, the said restriction shall apply with such modifications as may be necessary to make it valid and effective. |
10.6 | The Sellers and the Travelport Guarantor shall procure that each member of the Sellers Group and their respective subsidiaries and subsidiary undertakings from time to time shall be bound by and observe the provisions of this clause 10 as if they were parties covenanting with the Purchasers in the same terms. |
11. | THE PURCHASERS WARRANTIES AND UNDERTAKINGS |
11.1 | Each Purchaser and the Kuoni Guarantor hereby warrants to each of the Sellers that: |
(i) | it has full power and authority to enter into and perform each of the Definitive Agreements to which its is a party and each of the Definitive Agreements constitutes or will, when executed, constitute binding obligations on it in accordance with their terms, subject to any principles of equity or insolvency law; |
(ii) | the obligations of it and any other relevant member of the Purchasers Group under this Agreement and each of the other Definitive Agreements to which it or such other member of the Purchasers Group is a party constitute legal, valid and binding obligations of it and any other relevant member of the Purchasers Group respectively in accordance with their respective terms; |
(iii) | it has obtained all applicable governmental, statutory, regulatory or other consents, licences, waivers or exemptions required to empower it to enter into and to perform its obligations under the Definitive Agreements; |
(iv) | it has been duly incorporated, and is duly organised and is validly existing under the laws of the place of its incorporation; |
(v) | the execution and delivery of, and the performance by it and any other relevant member of the Purchasers Group of their respective obligations under each of the Definitive Agreements to which it or such other member of the Purchasers Group is or shall to be a party will not: |
(a) | result in a breach of any provision of the memorandum or articles of association or other constitutional document of it or other relevant member of the Purchasers Group; |
(b) | result in a breach of, or constitute a default under, any agreement or instrument to which it or other relevant member of the Purchasers Group is a party or by which any of it or other relevant member of the Purchasers Group is bound; |
(c) | result in a breach of any order, judgment or decree of any Governmental or Regulatory Authority to which it or other relevant member of the Purchasers Group is a party or by which it or other relevant member of the Purchasers Group is bound; or |
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(d) | save as contemplated by this Agreement, require the consent of its shareholders or of any other person; |
(vi) | no action, consent or approval of, filing with or notice to any competent Governmental or Regulatory Authority on the part of it or any other member of the Purchasers Group is required in connection with the execution and performance by any member of the Purchasers Group of any Definitive Agreement to which it is or shall be a party or the consummation of the transactions contemplated thereby; and |
(vii) | its board, at a meeting duly called and held prior to the date hereof, and not subsequently rescinded or modified in any way, has duly (i) approved this Agreement and determined that this Agreement and the transactions contemplated hereby are in its best interests. |
11.2 | From the Completion Date, on reasonable notice: |
(i) | the Purchasers shall give the Sellers and any persons authorised by them reasonable access to the premises (including the Properties) and all the books and records and title deeds of each Group Company, and shall instruct the directors and employees of each Group Company promptly to give all such information, co-operation and explanations to the Sellers or any person authorised by them as such persons may reasonably request for the purposes of the Sellers tax affairs and also undertaking their audit in respect of the financial reference period during which Completion occurs; |
(ii) | the Sellers shall give the Purchasers and any persons authorised by it reasonable access to the premises of the Sellers Group and all the books and records and title deeds of each relevant member of the Sellers Group, and shall instruct the directors and employees of each member of the Sellers Group promptly to give all such information, co-operation and explanations to the Purchasers or any person authorised by it as such persons may reasonably request for the purposes of the Purchasers or the Groups tax affairs and also undertaking their audit in respect of the financial reference period during which Completion occurs. |
11.3 | Within 15 Business Days of the date of this Agreement, the Purchasers shall submit or procure submission of the filing in relation to the Transaction to the Brazilian anti-trust authorities. |
11.4 | The Purchasers hereby agree to indemnify the Sellers on demand in respect of any loss, liability, damage, cost charge or expense of whatever nature and howsoever caused, suffered or incurred by the Sellers or any of their Affiliates from time to time arising from or otherwise pertaining to the inclusion of any information or data relating to any Seller, any member of the Sellers Group or any member of the Group in any prospectus or other public document (whether included specifically or by reference) published or otherwise released to the public pursuant to any equity financing raised by any member of the Purchasers Group (including, without limitation, the Kuoni Guarantor) for the purposes of financing the Transaction (whether directly or indirectly) or refinancing any debt funding or similar commitments taken out in connection with the Transaction. |
12. | TRAVELPORT GUARANTEE |
12.1 | In consideration of the Purchasers entering into this Agreement, the Travelport Guarantor irrevocably and unconditionally: |
(i) | guarantees to the Purchasers each and every obligation and liability the Sellers or any Affiliate may now or hereafter have to the Purchasers under the Definitive |
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Agreements (whether solely or jointly with one or more persons and whether as principal or as surety or in some other capacity) and promises to: |
(a) | pay to the Purchasers from time to time on demand the unpaid balance of every sum now or hereafter owing, due or payable by the Sellers to the Purchasers in respect of any such liability; and |
(b) | perform for, or procure performance by, the Sellers from time to time on demand any outstanding obligation of the Sellers to the Purchasers in respect of such obligation; |
(ii) | undertakes to the Purchasers that whenever the Sellers do not pay any amount or perform any obligation under the Definitive Agreements it shall on demand pay that amount or perform (or procure the performance of) that obligation as if it were the principal obligor; and |
(iii) | agrees as a primary obligation to indemnify the Purchasers from time to time on demand from and against any losses, costs or expenses incurred by the Purchasers as a result of any such obligation or liability under the Definitive Agreements being or becoming void, voidable, unenforceable or ineffective as against the Sellers for any reason whatsoever, whether or not known to the Purchasers (the amount of such losses, costs and expenses shall include the amount which the Purchasers would otherwise have been entitled to recover from the Sellers). |
12.2 | The guarantee and indemnity contained in clause 12.1 are in respect of all of the obligations and liabilities of the Sellers to the Purchasers under the Definitive Agreements (the Guaranteed Liabilities ). |
12.3 | The obligations of the Travelport Guarantor contained in this clause 12 shall be in addition to and independent of every other security which the Purchasers may at any time hold in relation to any of the Guaranteed Liabilities. |
12.4 | Neither the obligations of the Travelport Guarantor contained in this Agreement nor the rights, powers and remedies conferred in respect of the Travelport Guarantor upon the Purchasers by this clause 12 or by law shall be discharged, impaired or otherwise affected by: |
(i) | the winding up, insolvency, dissolution, administration, reorganisation or other similar proceedings of any Seller or any other person or any change in its status, function, control or ownership; |
(ii) | any of the Guaranteed Liabilities or any of the obligations of any Seller or any other person under any security relating to any of the Guaranteed Liabilities being or becoming illegal, invalid, unenforceable or ineffective in any respect; |
(iii) | any time, waiver, consent or other indulgence granted or agreed to be granted to any Seller or any other person in respect of any of the Guaranteed Liabilities or under any other security; |
(iv) | any amendment to, or any variation, waiver or release of, any of the Guaranteed Liabilities or of any person under any other security; |
(v) | any failure to take, or fully to take, any security agreed to be taken in relation to any of the Guaranteed Liabilities; |
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(vi) | any failure to realise or fully to realise the value of, or any release, discharge, exchange or substitution of, any security taken in respect of any of the Guaranteed Liabilities; or |
(vii) | any other act, event or omission which, but for this clause 12.4 might operate to discharge, impair or otherwise affect any of the obligations of Travelport Guarantor contained in this clause 12 or any of the rights, powers or remedies conferred upon the Purchasers by this clause 12 or by Law. |
12.5 | Any settlement or discharge given by the Purchasers to the Travelport Guarantor in respect of the Travelport Guarantors obligations under this clause 12 or any other agreement reached between the Purchasers and the Travelport Guarantor in relation to it shall be, and be deemed always to have been, void if any act on the faith of which such Purchasers gave the Travelport Guarantor that settlement or discharge or entered into that agreement is subsequently avoided by or in pursuance of any applicable law. |
12.6 | The Purchasers shall not be obliged before exercising any of the rights, powers or remedies conferred upon it in respect of the Travelport Guarantor by this clause 12 or by Law: |
(i) | to make any demand of any Seller; |
(ii) | to take any action or obtain judgment in any court against any Seller; |
(iii) | to make or file any claim or proof in a winding up or dissolution of any Seller; or |
(iv) | to enforce or seek to enforce any security taken in respect of any of the obligations of any Seller in respect of the Guaranteed Liabilities. |
12.7 | The Travelport Guarantor agrees that, so long as any Seller is under any actual or contingent obligations in respect of any of the Guaranteed Liabilities, the Travelport Guarantor shall not exercise any rights which the Travelport Guarantor may at any time have by reason of performance by it of its obligations under this Agreement: |
(i) | to be indemnified by any Seller or to receive any collateral from the any Seller; |
(ii) | to claim any contribution from any other guarantor of any of the Guaranteed Liabilities; and/or |
(iii) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of any Seller in respect of any of the Guaranteed Liabilities of any other security taken pursuant to, or in connection with, any of the Guaranteed Liabilities by the Purchasers. |
12.8 | The obligations of the Travelport Guarantor contained in this clause 12 shall constitute and be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever, and shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the obligations of any of the Sellers in relation to any of the Guaranteed Liabilities and shall continue in full force and effect until final payment in full of all amounts owing by the Sellers in respect of the Guaranteed Liabilities and total satisfaction of all the Sellers actual and contingent obligations in relation to the Guaranteed Liabilities. |
13. | KUONI GUARANTEE |
13.1 | In consideration of the Sellers entering into this Agreement, the Kuoni Guarantor irrevocably and unconditionally: |
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(i) | guarantees to the Sellers each and every obligation and liability the Purchasers or any Affiliate may now or hereafter have to the Sellers under this Agreement and the Transitional Services Agreement (whether solely or jointly with one or more persons and whether as principal or as surety or in some other capacity) and promises to: |
(a) | pay to the Sellers from time to time on demand the unpaid balance of every sum now or hereafter owing, due or payable by the Purchasers to the Sellers in respect of any such liability; and |
(b) | perform for, or procure performance by, the Purchasers from time to time on demand any outstanding obligation of the Purchasers to the Sellers in respect of such obligation; |
(c) | undertakes to the Sellers that whenever the Purchasers do not pay any amount or perform any obligation under this Agreement it shall on demand pay that amount or perform (or procure the performance of) that obligation as if it were the principal obligor; and |
(d) | agrees as a primary obligation to indemnify the Sellers from time to time on demand from and against any losses incurred by the Seller as a result of any such obligation or liability under this Agreement being or becoming void, voidable, unenforceable or ineffective as against the Purchasers for any reason whatsoever, whether or not known to the Sellers (the amount of such losses shall include the amount which the Sellers would otherwise have been entitled to recover from the Purchasers). |
13.2 | The guarantee and indemnity contained in clause 13.1 are in respect of all of the obligations and liabilities of the Purchasers to the Sellers under this Agreement (the Guaranteed Liabilities ). |
13.3 | The obligations of the Kuoni Guarantor contained in this clause 13 shall be in addition to and independent of every other security which the Sellers may at any time hold in relation to any of the Guaranteed Liabilities. |
13.4 | Neither the obligations of the Kuoni Guarantor contained in this Agreement nor the rights, powers and remedies conferred in respect of the Kuoni Guarantor upon the Sellers by this clause 13 or by law shall be discharged, impaired or otherwise affected by: |
(i) | the winding up, insolvency, dissolution, administration, reorganisation or other similar proceedings of the Purchasers or any other person or any change in its status, function, control or ownership; |
(ii) | any of the Guaranteed Liabilities or any of the obligations of the Purchasers or any other person under any security relating to any of the Guaranteed Liabilities being or becoming illegal, invalid, unenforceable or ineffective in any respect; |
(iii) | any time, waiver, consent or other indulgence granted or agreed to be granted to the Purchasers or any other person in respect of any of the Guaranteed Liabilities or under any other security; |
(iv) | any amendment to, or any variation, waiver or release of, any of the Guaranteed Liabilities or of any person under any other security; |
(v) | any failure to take, or fully to take, any security agreed to be taken in relation to any of the Guaranteed Liabilities; |
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(vi) | any failure to realise or fully to realise the value of, or any release, discharge, exchange or substitution of, any security taken in respect of any of the Guaranteed Liabilities; or |
(vii) | any other act, event or omission which, but for this clause 13.4 might operate to discharge, impair or otherwise affect any of the obligations of the Kuoni Guarantor contained in this clause 13 or any of the rights, powers or remedies conferred upon the Sellers by this clause 13 or by Law. |
13.5 | Any settlement or discharge given by any of the Sellers to the Kuoni Guarantor in respect of the Kuoni Guarantors obligations under this clause 13 or any other agreement reached between any of the Sellers and the Kuoni Guarantor in relation to it shall be, and be deemed always to have been, void if any act on the faith of which such Sellers gave the Kuoni Guarantor that settlement or discharge or entered into that agreement is subsequently avoided by or in pursuance of any applicable law. |
13.6 | The Sellers shall not be obliged before exercising any of the rights, powers or remedies conferred upon them in respect of the Kuoni Guarantor by this clause 13 or by Law: |
(i) | to make any demand of the Purchasers; |
(ii) | to take any action or obtain judgment in any court against the Purchasers; |
(iii) | to make or file any claim or proof in a winding up or dissolution of the Purchasers; or |
(iv) | to enforce or seek to enforce any security taken in respect of any of the obligations of the Purchasers in respect of the Guaranteed Liabilities. |
13.7 | The Kuoni Guarantor agrees that, so long as the Purchasers are under any actual or contingent obligations in respect of any of the Guaranteed Liabilities, the Kuoni Guarantor shall not exercise any rights which the Kuoni Guarantor may at any time have by reason of performance by it of its obligations under this Agreement: |
(i) | to be indemnified by the Purchasers or to receive any collateral from the Purchasers; |
(ii) | to claim any contribution from any other guarantor of any of the Guaranteed Liabilities; and/or |
(iii) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Sellers in respect of any of the Guaranteed Liabilities of any other security taken pursuant to, or in connection with, any of the Guaranteed Liabilities by the Sellers. |
13.8 | The obligations of the Kuoni Guarantor contained in this clause 13 shall constitute and be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever, and shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the obligations of the Purchasers in relation to any of the Guaranteed Liabilities and shall continue in full force and effect until final payment in full of all amounts owing by the Purchasers in respect of the Guaranteed Liabilities and total satisfaction of all the Purchasers actual and contingent obligations in relation to the Guaranteed Liabilities. |
14. | RELEASE OF GUARANTEES AND LETTERS OF CREDIT |
14.1 | The Purchasers shall: |
(i) | as soon as reasonably practicable but in any event within two (2) months following the Completion Date, procure the release of the Travelport Letters of Credit; and |
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(ii) | at Completion procure the release of the Travelport Letters of Guarantee, |
in the form and substance satisfactory to the Sellers and either the issuing bank or the beneficiary of the relevant Travelport Letter of Guarantee and Travelport Letter of Credit, and otherwise shall use its reasonable endeavours to procure the release, as soon as reasonably practicable following Completion, of all other security, letters of credit, guarantees and indemnities given by or binding upon any of the Sellers or any of their Affiliates (which for the avoidance of doubt shall not include any Group Company) in relation to any debt or obligation of any Group Company. Pending such release, the Purchasers shall indemnify and keep indemnified the relevant Seller or its relevant Affiliate on an after tax basis from and against all losses, costs or expenses arising out of or in connection with such securities, letters of credit, guarantees and indemnities (including, without limitation, the Travelport Letters of Credit and the Travelport Guarantees). Any costs or expenses incurred by the Sellers Group which are associated with maintaining the Travelport Letters of Credit after Completion shall be for the account of the Purchasers and shall be paid by the Purchasers to the Sellers on demand. |
14.2 | The Sellers shall, at Completion, procure the releases referred to in Part A1 paragraph (v) of Schedule 2 and, pending such releases, the Sellers shall indemnify and keep indemnified the Purchasers as trustee for themselves and the Group Companies concerned on an after tax basis from and against all losses, costs or expenses arising out of or in connection with any such securities, guarantees and indemnities. |
14.3 | The Sellers agree to procure that the Sellers Group and the Group provides reasonable access to relevant information relating to the Travelport Letters of Credit and Travelport Letters of Guarantee and reasonable assistance to the Purchasers in its replacement of the Travelport Letters of Credit and Travelport Letters of Guarantee in accordance with clause 14.1. |
15. | EMPLOYEES |
15.1 | In relation to those Employee Payments which become due and payable at any time as a direct result of consummation of the Transaction, the Sellers shall pay to the Purchasers and the Purchasers shall procure that the relevant Group Companies are put in sufficient funds (including amounts in respect of employers national insurance or similar contributions) so as to allow such Group Companies to satisfy their obligations in full in respect thereof and the Purchasers undertake that they shall procure that the relevant Group Companies shall satisfy their respective obligations with respect to the Employee Payments in accordance with the terms thereof. |
15.2 | If the payment of the Employee Payments by a Group Company and any employers National Insurance Contributions payable in respect of such Employee Payments gives rise to a Relief which is attributable to such payments by a Group Company and would not otherwise have arisen and such Relief is used or set off against any liability of a Group Company to make an actual payment of Tax, the Purchasers shall pay to the Sellers an amount equal to the Tax which would otherwise have been paid by the Group Companies but for the use or set off of such Relief. The due date for payment by the Purchasers to the Sellers under this clause 15.2 shall be the date falling ten (10) Business Days after the last date on which a Group Company would have been due to make an actual payment of the Tax which would have been payable but for the use or set-off of the Relief, without incurring a liability to interest or penalties in respect of such Tax. If the Purchasers have made a payment to the Seller pursuant to this clause 15.2 but it subsequently transpires that all or part of such payment should not have been paid (whether or not by reference to facts that were known to the Purchasers or the employing company at that time) as a consequence of a disallowance of a Relief arising in respect of an Employee Payment and any associated employers National Insurance Contributions, the Sellers shall as soon as is reasonably practical repay to the Purchasers an |
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amount equal to the amount that should not have been paid and such payment shall be treated as a further adjustment to the Consideration. |
15.3 | Without liability to the Sellers, the Purchasers confirm that it is their present intention to treat all Sale Business Employees fairly (and not prejudicially as compared to an employee of equivalent office or level of seniority within the Purchasers Group): |
(i) | in relation to the credit to be given to such employees in respect of their period of service both prior to and following Completion if and to the extent that any such employee becomes a participant in any employee benefit plan, practice or policy of the Purchasers Group; and |
(ii) | in relation to the value of their aggregate package of emoluments taken as whole (salary, bonus and incentive opportunities and benefit plans (including restricted cash and other long term incentive awards), programs and arrangements). |
15.4 | Following Completion: |
(i) | the Purchasers hereby agree to notify the Sellers promptly, but in no event less than ten days following, the date that any Information Participant has any change in their employment or other service relationship with the Purchasers and/or the Group, including in the event of the Information Participants death or separation from service; |
(ii) | the Purchasers hereby agree to cooperate (and to procure that the Group will cooperate) in good faith with the Sellers in processing any tax withholding or other payroll processing or withholding obligations the Sellers may have on account of any payments it makes to any Payroll Participant following the Completion Date, including but not limited to processing any such payments through the Groups payroll systems (it being acknowledged and agreed that neither the Purchasers nor the Group shall be liable to make any such payment unless the Sellers shall first have put the relevant Group Company in sufficient funds to discharge any such payment); |
(iii) | if any notification is provided by the Purchasers to the Sellers under this clause, a copy of such notification shall also be sent by the Purchasers to the following address: Travelport (For the attention of: Caroline Jowett-Ive (Head of Compensation and Benefits)), Axis One, Axis Park, 10 Hurricane Way, Langley SL3 8AG United Kingdom. |
16.1 | For six years following the Completion Date, the Purchasers shall cause to be maintained in effect, for the benefit of the Group Companies directors and officers, an insurance and indemnification policy with an insurer with a Standard & Poors rating of at least A that provides coverage for acts or omissions occurring prior to the Completion Date (the D&O Insurance ) covering each such person currently covered by the officers and directors liability insurance policies held by or for the benefit of the Group Companies on terms with respect to coverage and in amounts no less favourable than those of the Group Companies directors and officers insurance policy in effect immediately prior to Completion. |
16.2 | The Purchasers acknowledge that all insurance coverage for the Group under policies of the Sellers Group shall terminate as of Completion and, following Completion, no claims may be brought against any policy of the Sellers Group in respect of the Group regardless of whether the events underlying such claims arose prior to or after Completion except with respect to workers compensation, general liability, or auto liability claims relating to the Group that occurred or arise from events that occurred prior to Completion. The Purchasers and the |
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Sellers shall cooperate, and cause their Affiliates to cooperate with each other in submitting any claims on behalf of the Sellers, the Purchasers or the Group under the respective workers compensation, general liability, or auto liability insurance policies maintained by the Sellers Group. The Purchasers shall reimburse the Sellers for the payment of claims, costs and expenses within the deductible or otherwise not covered under such insurance policies, to the extent the Purchasers has requested the Sellers to pay on its behalf. The Sellers agree to procure that the Sellers Group provides reasonable access to relevant information relating to the insurance of the Group under the insurance policies of the Sellers Group for the purposes of compliance with this clause 16.2. |
16.3 | The terms of Schedule 15 shall apply. |
17. | EFFECT OF COMPLETION |
Any provision of this Agreement and any other documents referred to in it which is capable of being performed after but which has not been performed at or before Completion and all Warranties and covenants and other undertakings contained in or entered into pursuant to this Agreement shall remain in full force and effect notwithstanding Completion. |
18. | REMEDIES AND WAIVERS |
18.1 | No delay or omission by any Party to this Agreement in exercising any right, power or remedy provided by law or under this Agreement or any other documents referred to in it shall: |
(i) | affect that right, power or remedy; or |
(ii) | operate as a waiver thereof. |
18.2 | The single or partial exercise of any right, power or remedy provided by law or under this Agreement shall not preclude any other or further exercise of it or the exercise of any other right, power or remedy. |
18.3 | The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law. |
18.4 | The rights and remedies of the Kuoni Guarantor and the Purchasers under this Agreement shall not be affected, and each Sellers and the Travelport Guarantors liabilities under this Agreement shall not be released, discharged or impaired, by: |
(i) | Completion; or |
(ii) | the failure to terminate this Agreement; or |
(iii) | any information relating to any Group Company of which the Kuoni Guarantor or the Purchasers have knowledge (actual, imputed or constructive) (other than, in respect only of the Warranties, by reason of its being Disclosed) and no such information shall prejudice any claim which the Kuoni Guarantor or the Purchasers shall be entitled to bring or shall operate to reduce any amount recoverable by the Kuoni Guarantor or the Purchasers under this Agreement. |
19. | ASSIGNMENT |
19.1 | Save only as provided in clause 19.2 and 19.3, no Party shall assign, or purport to assign, all or any part of the benefit of, or its rights or benefits under, this Agreement together with any causes of action arising hereunder. |
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19.2 | The Purchasers or the Kuoni Guarantor may assign all or any part of the benefit of, or its rights or benefits under, this Agreement together with any causes of action arising hereunder to: |
(i) | any member of the Purchasers Group provided that any such member of the Purchasers Group (the Assignee ) must assign back its rights to another member of the Purchasers Group in the event that the Assignee should cease to be a member of the Purchasers Group; or |
(ii) | any bank or financial institution by way of security, |
provided that, in relation to (i) and (ii) above, no Seller shall be under any greater obligation or liability thereby than if such assignment had never occurred and that the amount of loss or damage recoverable by the assignee shall be calculated as if that person had been originally named as a Purchaser in this Agreement (and, in particular, shall not exceed the sum which would, but for such assignment, have been recoverable hereunder by the Purchasers in respect of the relevant fact, matter or circumstance) and the Purchasers shall notify the Sellers of any such assignment or purported assignment. |
19.3 | The Sellers may assign all or any part of the benefit of, or its rights or benefits under, this Agreement together with any causes of action arising hereunder to any member of the Sellers Group and shall notify the Purchasers of any such assignment or purported assignment provided that any such member of the Sellers Group (the Assignee ) must assign back its rights to another member of the Sellers Group in the event that the Assignee should cease to be a member of the Sellers Group. |
20. | FURTHER ASSURANCE |
Each Seller agrees (at its own cost) to perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by law or as the Purchasers may reasonably require, whether on or after Completion, to implement and/or give effect to this agreement and the transaction contemplated by this Agreement. |
21. | ENTIRE AGREEMENT |
21.1 | Each Party acknowledges and agrees with the other Parties that: |
(i) | the Definitive Agreements and the Confidentiality Agreement constitute the entire and only agreement and understanding between the Parties relating to the subject matter of the Definitive Agreements and the Confidentiality Agreement and supersede all previous agreements understandings or arrangements whether oral or in writing, between the Parties relating to the transactions contemplated by the Definitive Agreements and the Confidentiality Agreement; |
(ii) | it has not been induced to enter into the Definitive Agreements and the Confidentiality Agreement in reliance upon, nor has it been given by any other Party or any of their respective Affiliates, or any of their respective employees, representatives, agents or advisers or any other person, nor does it rely upon, any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever (in any case whether written, oral or implied) other than as are expressly set out in the Definitive Agreements and the Confidentiality Agreement and, to the extent that any of them have been, it unconditionally and irrevocably waives any claims, rights or remedies which any of them might otherwise have had in relation thereto; |
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(iii) | the only remedies available to it in respect of the Definitive Agreements or of any misrepresentations or untrue statement are damages for breach of contract and, for the avoidance of doubt, it shall have no right to rescind or terminate any Definitive Agreement either for breach of contract or for negligent or incorrect misrepresentation or otherwise; and |
(iv) | any statutory or common law warranties, representations or conditions that are not expressly set out or referred to in the Definitive Agreements and which might otherwise be implied in respect of the transactions contemplated by the Definitive Agreements are expressly excluded, |
PROVIDED THAT the provisions of this clause 21 ( Entire Agreement ) shall not exclude any liability which any Party has or would otherwise have to any other Party or any right which any of them may have to rescind any Definitive Agreement, in respect of any statements made fraudulently by any of them prior to the entry into the relevant Definitive Agreement or any rights which any of them may have in respect of fraudulent concealment by any of them. |
22. | VARIATIONS |
This Agreement may be varied only by a written document signed by or on behalf of each of the Parties. |
23. | NOTICES |
23.1 | A notice under this Agreement shall only be effective if it is in writing. Faxes are permitted. |
23.2 | Notices under this Agreement shall be sent to a Party to this Agreement at its address for the attention of the individual set out below: |
Party | Fax No. | Address | ||
The Sellers, the Travelport
Guarantor and all or any of
them
|
+1 770 563 78 78 |
300 Galleria Parkway
Atlanta, Georgia 30339 USA |
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with a copy to each of : | |||
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FAO: General Counsel
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+44-(0)1753-288-217 | Axis Park | ||
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10 Hurricane Way
Langley, Berkshire SL3 8US England |
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AND | |||
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+44 (0)207 469 2001 |
Kirkland & Ellis
International LLP
30 St. Mary Axe London EC3A 8AF FAO Graham White/Daniel Oates |
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|
||||
The Purchasers and the
Kuoni Guarantor
|
+41 (0)44 277 4031 |
Neue Hard 7
CH-8010 Zurich Switzerland |
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FAO: Martin Simeon | ||
provided that a Party may change its notice details on giving notice to the other Party of the change in accordance with this clause 23 (Notices). That notice shall only be effective on the day falling five clear Business Days after the notification has been received or such later date as may be specified in the notice. |
23.3 | Any notice given under this Agreement shall, in the absence of earlier receipt, be deemed to have been duly given as follows: |
(i) | if delivered personally, on delivery; |
(ii) | if sent by first class post, two clear Business Days after the date of posting; and |
(iii) | if sent by facsimile, when despatched. |
23.4 | Any notice given under this Agreement outside Working Hours in the place to which it is addressed shall be deemed not to have been given until the start of the next period of Working Hours in such place. |
24. | ANNOUNCEMENTS |
24.1 | The Parties hereby agree to the release of the Press Announcements at or around 6am CET on 7 March 2011 or thereafter. |
24.2 | Save for the Press Announcements, no announcement concerning the sale of the Shares or any ancillary matter shall be made by any Party without the prior written approval of the other Parties, such approval not to be unreasonably withheld or delayed. This clause does not apply in the circumstances described in clause 24.3. |
24.3 | Either Party may, after consultation with the other Party make an announcement concerning the sale of the Shares or any ancillary matter if required by: |
(i) | applicable Law; or |
(ii) | any securities exchange or Governmental or Regulatory Authority to which that Party is subject or submits, wherever situated, |
in which case the Party concerned shall take all such steps as may be reasonable and practicable in the circumstances to agree the contents and timing of such announcement with the other Party before making such announcement provided that no further consultation shall be required in respect of the Prospectus, the notice convening the General Meeting and any other public disclosure made by the Kuoni Guarantor in connection with the proposed capital raising and consummation of this Transaction, provided that the content of such disclosures is not inconsistent with the obligations of the Kuoni Guarantor under clause 3.3. |
24.4 | The restrictions contained in this clause 24 shall continue to apply after Completion or termination of this Agreement without limit in time. |
25. | CONFIDENTIALITY |
25.1 | Each Party to this Agreement shall treat as confidential all information obtained as a result of entering into or performing this Agreement which relates to: |
(i) | the provisions of this Agreement; |
(ii) | the negotiations relating to this Agreement; |
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(iii) | the subject matter of this Agreement; or | ||
(iv) | any other Party |
25.2 | Notwithstanding the other provisions of this clause, any Party may disclose Confidential Information: |
(i) | if and to the extent required by applicable Law; | ||
(ii) | if and to the extent required by any securities exchange or Governmental or Regulatory Authority to which that Party is subject wherever situated; | ||
(iii) | to its professional advisers, auditors and bankers on a need to know basis provided that each person to whom disclosure is made is advised of the confidentiality obligations under this Agreement and agrees to be bound thereby; | ||
(iv) | if and to the extent the information has come into the public domain through no fault of that Party; or | ||
(v) | if and to the extent the other Parties have given prior written consent to the disclosure. |
Any information to be disclosed pursuant to this clause 25.2 shall be disclosed only after consultation with the other Parties. | ||
25.3 | The restrictions contained in this clause 25 ( Confidentiality ) shall continue to apply after Completion or termination of this Agreement without limit in time and shall be in addition to any confidentiality obligations of the Purchasers set out therein. In the event of any inconsistency or conflict in the terms of this clause 25 and the terms of the Confidentiality Agreement, the latter shall prevail. |
26. | COSTS AND EXPENSES | |
26.1 | Except as otherwise stated in any other provision of this Agreement, each Party to this Agreement shall pay its own costs and expenses in relation to the negotiations leading up to the sale and purchase of the Shares and the preparation, execution and carrying into effect of this Agreement, the other Definitive Agreements, and all other documents referred to in this Agreement. | |
26.2 | Each Seller and the Travelport Guarantor undertakes to the Purchasers that no Group Company has paid or will pay (in connection with the sale and purchase contemplated by this Agreement) any legal, accounting or other professional charges, fees, expenses or commissions relating to the sale of the Shares including, without limitation, any such costs incurred in connection with any investigation of the affairs of the Group or the negotiation, preparation, execution and carrying into effect of this Agreement. | |
26.3 | Any registration or stamp duties payable in any jurisdiction in respect of the sale and purchase of the Shares shall be borne as to 100% by the Purchasers. The Purchasers shall be responsible for arranging the payment of all such duties including fulfilling any administrative or reporting obligation imposed by the jurisdiction in question in connection with the payment of such duties. | |
26.4 | If any Party defaults in the payment when due of any sum payable under this Agreement (howsoever determined), the liability of the relevant Party shall be increased to include interest on such sum from the date when such payment is due until the date of actual payment |
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31.5 | Each Seller and the Travelport Guarantor irrevocably appoints General Counsel of Travelport International Limited, Axis Park, 10 Hurricane Way, Langley, Berkshire SL3 8US England, to be its agent for the receipt of Service Documents. Each Seller and the Travelport Guarantor agrees that any Service Document may be effectively served on it in connection with Proceedings in England and Wales by service on its agent effected in any manner permitted by the Civil Procedure Rules. | |
31.6 | If any of the agents appointed pursuant to clause 31.4 or clause 31.5 at any time ceases for any reason to act as such, the Party(ies) which originally appointed such agent shall appoint a replacement agent having an address for service in England and shall notify the other Parties of the name and address of the replacement agent. Failing such appointment and notification, any other Party shall be entitled by notice to the Party whose agent has ceased to act to appoint a replacement agent to act on behalf of such Party and shall notify each other Party if it does so. The provisions of this clause 31.6 applying to service on an agent apply equally to service on a replacement agent. | |
31.7 | A copy of any Service Document served on an agent appointed pursuant to clause 31.4, 31.5 or 31.6 by or on behalf of a Party shall be sent by post to such Party. Failure or delay in so doing shall not prejudice the effectiveness of service of the Service Document. |
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EMPLOYER
|
TRAVELPORT INTERNATIONAL LTD of Axis One, Axis Park, 10 Hurricane Way, Langley, Berkshire SL3 8AG United Kingdom. Registered company number 1254977 England (the Company). | |
|
||
EMPLOYEE
|
Lee Golding | |
|
||
DATE
|
2 October 2009 |
1. | Commencement of employment | |
Your employment with the Company began on 30th September 2002 which is the date of commencement of your period of continuous employment. Your new role will commence 2 nd October 2009. | ||
2. | Job title | |
You are employed as Executive Vice President Human Resources, Travelport at Senior Executive Leadership level. The content of your job may be varied from time to time. | ||
3. | Duties |
3.1. | You will carry out such duties and comply with such instructions consistent with your position and status as the Company reasonably determines from time to time. | ||
3.2. | You will primarily report to Jeff Clarke, the President and CEO of Travelport (or his successor), and will also report to Gordon Wilson, President and CEO of Travelport GDS (or his successor); provided, however, that the Company may change this reporting relationship so that you have substantially equivalent accountability and responsibility. |
4. | Place of work |
4.1. | Your normal place of work will be the Companys offices at Langley. | ||
4.2. | You may be required to undertake business trips or temporary work placements within the UK and abroad in the course of the performance of your duties. |
4.3. | You may be required to work on a permanent basis at any other (current or future) premises of the Company or any Group Company within a radius of 50 miles of Langley. If as a result of such relocation you are required to move home your relocation expenses will be refunded to the extent provided for in the Companys relocation policy in accordance with the terms of that policy which may be revised from time to time. |
5. | Remuneration |
5.1. | Your basic salary is £210,000 per annum effective 2 nd October 2009. This basic salary is payable monthly in arrears in accordance with the Companys normal payroll practices by electronic transfer direct to your bank. | ||
5.2. | Your salary will be reviewed annually. Salary review does not automatically entitle you to a salary increase. | ||
5.3. | You are required to inform the Companys payroll department without delay if an over or under payment of salary, expenses or any other benefit is mistakenly made to you. |
6. | Expenses | |
If you incur travelling expenses (other than travel to and from work), accommodation or other expenses in the course of carrying out your duties, you will be reimbursed for these by the Company on production of appropriate vouchers or receipts in accordance with the Companys current policy on expenses, a copy of which appears on the Company Intranet. | ||
7. | Perquisites | |
During your employment you will be provided with perquisites for UK executives at your level, including without limitation, car allowance, financial planning and travel allowance, subject to the prevailing rules, policy or plan, which may be revised from time to time. Your eligibility to participate in these schemes and to receive benefits under them shall cease upon termination of your employment for whatever reason. The Company reserves the right to vary, replace or discontinue all or any of these perquisites from time to time. | ||
8. | Hours of Work |
8.1. | Your normal hours of work are from 9.00 am until 5.15 pm Monday to Friday inclusive with a 45 minute break for lunch. The Company reserves the right to vary your normal hours of work at its discretion to meet business needs and/or improve operational efficiency but without increasing the normal number of hours worked. |
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8.2. | You will be required to work such additional hours as may be necessary for the proper performance of your duties, for which you will receive no additional payment. | ||
8.3. | You agree that the maximum weekly working time limits in regulation 4 (1) of the Working Time Regulations 1998 do not apply to you, and that you shall give the Company three months notice in writing if you wish regulation 4 (1) to apply to you. | ||
8.4. | You agree to co-operate fully in assisting the Company to maintain such records of your working hours as may be required from time to time. |
9. | Holidays and holiday pay |
9.1. | The holiday year runs from 1 January to 31 December. | ||
9.2. | You are entitled, in addition to the usual public holidays, to 25 working days paid holiday in each holiday year of employment, increasing to 27 days after five continuous years service and 29 days after ten continuous years service. Holidays shall be paid at your basic rate of pay. | ||
9.3. | If the 5th and 10th anniversaries of your commencement date fall during the first six months of a holiday year then your two day increase of holiday entitlement will be available to you following the anniversary date. If these anniversaries fall during the second six months of a holiday year then your holiday entitlement following the anniversary date will increase by only one day for that year. | ||
9.4. | Where you are employed for a part of a holiday year only either on commencement or termination of your employment you will be entitled to paid holiday pro rata to the number of complete calendar months worked by you in the relevant holiday year. | ||
9.5. | The dates of any period of holiday must be approved by your manager. Although the Company will agree to your proposed holiday dates wherever possible, it reserves the right to withhold approval where necessary for administrative or business reasons. Consent will not normally be given to your taking more than ten consecutive working days holiday. | ||
9.6. | In exceptional circumstances and with the prior written consent of your Manager, up to five days unused holiday entitlement may be carried forward to the next year. Any such days must be taken by 31 March in the next holiday year. |
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9.7. | On the termination of your employment, where you have taken more or less than your accrued holiday entitlement as calculated above, an adjustment based on your normal rate of pay will be made to your final pay by way of a deduction or an additional payment as appropriate. |
10. | Sickness and sick pay |
10.1. | If you are absent from work due to sickness or injury or for any other reason you must let the Company know by 10.00 am on your first day of absence that you will be unable to attend. If it is not possible for you or someone on your behalf to contact the Company by this time then you must ensure that contact is made as soon as is reasonably practical thereafter. If you are absent over a period of time, you must keep the Company advised regularly of your progress and of your likely return date. Your manager will be your first point of contact for these purposes. | ||
10.2. | If you are absent due to sickness or injury for half a day or more, immediately you return to work you must complete a sickness self-certification form and submit it to your manager for his/her signature and authorisation. Template self-certification forms are available on the Companys Intranet. | ||
10.3. | If you are absent for more than seven consecutive days (including Saturdays and Sundays) due to sickness or injury you must obtain a doctors certificate in respect of your absence to date and any anticipated future absence and give it or send it immediately to your manager. Thereafter any further absence must continue to be supported by doctors certificates. If you wish to return to work following a period of sickness absence and your doctors certificate is for an open ended period or for a period which has not expired then the Company will only allow you to return to work if you submit a further doctors certificate confirming that you are once more fit for work. | ||
10.4. | Failure to comply with the above procedures may result in the loss of Company sick pay (referred to below) and may also disqualify you from receiving Statutory Sick Pay (SSP). | ||
10.5. | The Companys sick pay year runs from 1 April to 31 March. Provided you have complied with the requirements detailed above, and subject to your length of continuous service, the Company will continue to pay you at your normal rate of pay during any unavoidable absence through sickness or injury in any given sick pay year (whether the absence is continuous or intermittent) for a period of 26 weeks. | ||
Any payment made to you under this provision will include any entitlement which you may have to receive SSP from the Company. |
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Company sick pay will be reduced by the amount of any Social Security benefits recoverable by you (whether or not recovered) in respect of your illness or injury. Any payments made in addition to your entitlement to Company sick pay as detailed above will be made entirely at the Companys discretion. | |||
10.6. | Where the relevant anniversary of your commencement of employment falls part way through a sick pay year your entitlement to Company sick pay for the sick pay year in question will increase immediately upon that anniversary date, but any sick pay already paid to you during that sick pay year will be offset against your new entitlement. | ||
10.7. | If you are absent during one sick pay year (year 1) and your absence continues into the next sick pay year (year 2) or if your absence in year 2 commences within four weeks of your absence in year 1 then the absence which falls in year 2 will be regarded as if it had fallen within year 1 and your entitlement to Company sick pay will be calculated by reference to your unexhausted sick pay entitlement (if any) for year 1. In this case you will only qualify to claim Company sick pay in respect of your entitlement for year 2 once you have returned to work for a continuous period of at least four working weeks before incurring any further sickness absence. Until you have qualified to receive Company sick pay in year 2 as described above any further absence from work due to sickness or injury will also be regarded as having occurred in year one. | ||
10.8. | You may be eligible to receive SSP payments before you become entitled to Company sick pay or once your entitlement to Company sick pay in any given sick pay year has been exhausted in which case you will receive payment at the SSP rate during your absence until your SSP entitlement has been exhausted. Your qualifying days for SSP purposes are Monday to Friday (inclusive). | ||
10.9. | If you are absent from work due to an accident which occurred or a condition which was sustained as a result of the act or omission of a third party any sick pay paid to you by the Company in respect of your absence will be paid as a loan which you must repay to the Company if you are successful in recovering damages in respect of your absence from work. | ||
10.10. | The Company will be entitled, at its expense, to require you to be examined by an independent medical practitioner of the Companys choice at any time (whether or not you are absent by reason of sickness or injury) and you agree that the doctor carrying out the examination may disclose to and discuss with the Company the results of the examination. |
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10.11. | For the avoidance of doubt the Company will be entitled to terminate your employment in accordance with the terms of this Contract (whether with or without notice as appropriate in the circumstances) during any period of sickness absence. |
11. | Pension and other benefits |
11.1. | The Company operates a defined contribution pension plan. If you choose to join the pension plan then your basic salary will be reduced by the amount that you elect to be invested into the pension plan, in accordance with the membership category you select. Full details of the pension plan and other benefits are shown in the Benefits Booklet. | ||
11.2. | During your employment you will be entitled to participate at the Companys expense in the Companys schemes relating to the following: | ||
(a) | private medical expenses insurance; | ||
(b) | permanent health insurance; | ||
(c) | life assurance; | ||
(d) | Well Being programme; |
subject to the rules of these schemes which may be revised from time to time. Your eligibility to participate in these schemes and to receive benefits under them shall cease upon termination of your employment for whatever reason. |
11.3. | Participation in the permanent health insurance (PHI) scheme is strictly subject to the rules of the scheme which may change from time to time. You will be entitled to receive benefits under the PHI scheme only in the circumstances and for so long as the Company continues to receive benefits from the insurer who operates the scheme. Your entitlement to receive benefits will therefore cease if your employment is terminated or if you are able to work to your normal capacity again, if you die, or if you reach normal retirement age or if the insurer considers that you no longer satisfy the schemes other eligibility requirements. | ||
11.4. | The Company reserves the right to vary, replace or discontinue all or any of these schemes from time to time. |
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12. | Confidentiality |
12.1. | You shall not either during the continuance of your employment or at any time thereafter: |
(a) | disclose or communicate to any person or permit or enable any person to acquire any Confidential Business Information other than for any legitimate purposes of a Group Company; or | ||
(b) | use or attempt to use any of the Confidential Business Information in any manner which may injure or cause loss either directly or indirectly to any Group Company or its Clients or may be likely to do so or for any purpose other than in the discharge of your duties hereunder; or | ||
(c) | sell or seek to sell to anyone Confidential Business Information other than for any legitimate purposes of a Group Company; or | ||
(d) | obtain or seek to obtain any financial advantage direct or indirect from the disclosure of Confidential Business Information other than for a Group Company. |
During the continuance of your employment and at all times thereafter you shall use your best endeavours to prevent the unauthorised publication or disclosure of the Confidential Business Information or any part thereof. |
12.2 | This Clause shall not apply to: |
(a) | information or knowledge which comes into the public domain other than in consequence of your default; | ||
(b) | any information which you have acquired other than through the performance of your duties for a Group Company; or | ||
(c) | any information which is required to be disclosed by you by order of a court of competent jurisdiction or an appropriate regulatory authority or otherwise required by law. |
12.3 | Nothing in this Agreement shall preclude you from making a protected disclosure for the purposes of the Public Interest Disclosure Act 1998. |
13. | Activities during your employment |
13.1. | During your employment you may only be engaged, concerned or interested (whether directly or indirectly) in any other trade, business or occupation with the prior written consent of the Company, as set forth in |
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the Travelport Code of Business Conduct & Ethics (the Code). Subject to the provisions of the Code, the Company will not unreasonably withhold such consent but consent will not be given where the outside activity in question gives rise to any conflict of interest with regard to the Companys business or if it is likely to detract from the proper performance of your duties under this contract. | |||
13.2. | During your employment you must not, except with the Companys written consent and subject to the provisions of the Code, introduce to any other competing business orders for goods or services with which the Company is able to deal. | ||
13.3. | During your employment you must not, except with the Companys express written consent or instructions, represent yourself as the Companys authorised agent save as is required in the normal course of your duties. You must not communicate with any member of the press or media or publish any letter, article or document on behalf of or referring to the Company without the express prior permission of the Corporate Communications Department. |
14. | Intellectual Property |
14.1. | All copyright, design rights, database rights, trademarks, and any other intellectual property rights (other than patents) in any software, databases, specifications, manuals, prototypes, records, documents, (including all material stored in computer readable form), drawings, designs, business ideas or methods and any other material or work (the Materials) of any description that is capable of protection under the intellectual property laws (other than patent law) or laws of confidence of any country which is made, developed, created, devised or designed (whether alone or with any other person) by you in the course of your employment will be the property of and will belong to the Company unless otherwise agreed in writing by the Company. | ||
14.2. | You agree that you will use the Materials only for the purpose of the Companys business and that you will return the Materials and all copies and extracts from the Materials, to the Company on demand at any time and without demand on the termination of your employment, howsoever arising. | ||
14.3. | You shall promptly disclose full details of all inventions, discoveries, processes or formulae or any other matter which is capable of patent protection under the intellectual property laws of any country which is made, created, developed, or devised by you in the course of your employment (Inventions) in writing to a Director of the Company, and shall if requested by the Company deliver to the Company all copies and |
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material representations of such Inventions in your possession, custody or control. | |||
14.4. | To the extent that under the mandatory laws of any country an Invention or any patent or other rights therein belongs to you, you shall on request by the Company negotiate with the Company in good faith for the assignment or licence of the Invention and such rights to the Company. | ||
14.5. | All other Inventions and all other rights therein shall belong to the Company, and, to the extent not already legally owned by the Company, shall be held on trust for the Company, and at the Companys request and cost you shall execute any documents and do all things necessary to substantiate the Companys ownership thereof and to obtain registration or protection thereof in any country. | ||
14.6. | You irrevocably appoint the Company to be your attorney in your name, and on your behalf: |
14.6.1. | to execute any instrument, to do any thing, and generally to use your name for the purpose of giving the Company (or its nominee) the full benefit of the provisions of clauses 14.1 to 14.5 above; and | ||
14.6.2. | to give to any third party a certificate in writing (signed by a director or secretary of the Company) confirming that any instrument or act falls within the authority conferred by this clause; such a certificate will be deemed to be conclusive evidence that this is the case. | ||
14.7. | Save as provided above, you shall keep all Inventions and all details thereof confidential to yourself and any lawyer or patent agent instructed by you. You shall not without the Companys consent apply for protection or registration in any country of any Invention belonging to the Company and shall promptly inform the Company if you apply for protection or registration of an Invention belonging to you in any country. |
15. | Disciplinary and grievance procedure | |
The Company has disciplinary and grievance procedures which appear on the Company intranet. The disciplinary and grievance procedures are not incorporated by reference in this contract of employment and therefore do not form part of your contract of employment. | ||
16. | Termination of employment |
16.1. | Subject as follows the Company can terminate your employment at any time by giving you 12 months written notice. |
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16.2. | You may terminate your employment at any time by giving the Company at least 12 months written notice. | ||
16.3. |
16.3.1. | After notice of termination has been given by either you or the Company, provided that the Company continues to provide you with your normal salary and contractual benefits under this contract until your employment terminates, the Company may at its absolute discretion at any time during your notice period: |
(a) | exclude you from the premises of the Company and/or any Group Company; | ||
(b) | require you to carry out specified duties other than your normal duties or to carry out no duties; | ||
(c) | require you to return any property belonging to the Company which is in your possession; | ||
(d) | require that you resign immediately from any offices you hold in any Group Company; | ||
(e) | announce to employees, suppliers and customers that you have been given notice of termination or have resigned (as the case may be); and | ||
(f) | instruct you not to communicate orally or in writing with suppliers, customers, employees, agents or representatives of the Company or any Group Company until your employment has terminated. |
16.3.2. | Any outstanding holiday entitlement accrued before or during a period of exclusion pursuant to clause 16.3.1 should be used during the exclusion period with the prior agreement of the Company. |
16.4. | The Company has the right to terminate your employment without notice if you breach the material terms and conditions of your employment and/or in the case of gross misconduct. Gross misconduct includes (but is not limited to) dishonesty, fraud, insider dealing, breach of company confidentiality, pilferage, being under the influence of alcohol or other substances at work, flagrant disobedience of reasonable orders from superiors, causing actual or threatening physical harm, harassment and causing damage to Company property. | ||
16.5. | The Company may also terminate your employment (with or without notice depending upon the severity of the case) if it discovers that you provided the Company with false information or deliberately misled the Company when applying for employment. |
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16.6. | The Company reserves the right, at its discretion, to terminate this Contract immediately without giving the period of notice referred to in clause 16.1 or 16.2 (as appropriate) by paying to you your basic salary (less deductions of tax and national insurance) in lieu of all or part of your notice period as the case may be. | ||
16.7. | Should you be involuntarily terminated for any reason other than cause (as determined by the Company) or you resign in circumstances where you are entitled to resign in response to a fundamental breach of contract by the Company, and provided that you execute a compromise agreement that will be provided to you by the Company in its standard form and that will include a release of all claims against any Group Company or any of their directors, officers, agents or employees, a non-competition provision for 12 months following your termination of employment, and a non-solicitation provision for 12 months following your termination from employment, you shall be entitled to receive the following benefits, which, except as expressly provided herein in clause 16.6, shall be in lieu of any severance or separation benefits under any and all other severance plans, policies and agreements that may entitle you to severance or separation benefits and which shall be less deductions of tax and national insurance: |
16.7.1. | A lump sum payment that is equivalent to 12 months of your base annual salary at the time of termination; and | ||
16.7.2. | A lump sum payment equal to your then current annual target bonus for the year in which your employment terminates, pro-rated based upon the number of days you were employed with the Company during the year of termination and for which you have not otherwise received or been eligible for a bonus, and in lieu of any other bonus for the period in which you are terminated. |
16.8. | The May 1, 2009 Management Equity Awards Agreement between Executive and TDS Investor (Cayman) L.P. (the May 1, 2009 Award Agreement) is hereby amended as follows: |
16.8.1. | Section 3.1(e) is deleted in its entirety and replaced with the following: |
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(e) | Notwithstanding the foregoing in the event that: |
(i) | a Change in Control occurs at a time when Executive is employed by the Company, Executive shall thereupon be deemed to have vested in the unvested Restricted Equity Units at Target (including, for the avoidance of doubt, any Restricted Equity Units that remain unvested due to the failure in any prior calendar year(s) to achieve the Annual Goals at Target) immediately prior to such Change of Control (and such Restricted Equity Units shall automatically convert to Vested Restricted Equity Units hereunder) and any Restricted Equity Units that remain unvested after such conversion shall be forfeited; | ||
(ii) | Executives employment with the Company is terminated by the Company other than for Cause, by Executive as the result of a Constructive Termination, or as a result of death or Disability, Executive shall be deemed to have vested in the unvested Restricted Equity Units that would have vested assuming (1) that Executives employment continued for eighteen (18) months following the termination of Executives employment (Accelerated Vesting Date), (2) that the award vests rateably on a monthly basis beginning on the prior Vesting Date through the Accelerated Vesting Date over the remainder of the performance period that ends on December 31, 2012, and (3) performance at Target. For example, if Executive was terminated without Cause on September 1, 2009, then Executive will receive 26/48 ths vesting of all unvested Restricted Equity Units as of the termination date at Target; and | ||
(iii) | Executives employment with the Company is terminated for any reason, except as set forth, and to the extent provided, in Sections 3.1(e)(i) and 3.1(e)(ii), Executive shall have no right to further vesting of the Restricted Equity Units that are Unvested Restricted Equity Units (and such Restricted Equity Units shall be Unvested Restricted Equity Units notwithstanding the provisions of this Section 3.1). |
16.8.2. | The following definition is added to Section 1.1 of the May 1, 2009 Award Agreement: | ||
Constructive Termination shall have the meaning assigned such term in any employment agreement entered into between any Company and Executive, provided that if no such employment agreement exists or such term is not defined, then Constructive Termination means (A) any material reduction in Executives base salary or annual bonus opportunity (excluding any change in value of |
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equity incentives or a reduction affecting substantially all similarly situated executives), (B) failure of the Company or its affiliates to pay compensation or benefits when due, in each case which is not cured within 30 days following the Companys receipt of written notice from Executive describing the event constituting a Constructive Termination, (C) a material and sustained diminution to Executives duties and responsibilities as of the date of this Agreement or (D) the primary business office for Executive being relocated by more than 50 miles; provided that any of the events described in clauses (A)-(D) of this definition of Constructive Termination shall constitute a Constructive Termination only if the Company fails to cure such event within 30 days after receipt from Executive of written notice of the event which constitutes Constructive Termination; provided further, that a Constructive Termination shall cease to exist for an event on the 60 th day following the later of its occurrence thereof or Executives knowledge thereof, unless Executive has given the Company written notice thereof prior to such date. | |||
16.8.3. | The phrase Subject to Section 3.1, is added at the beginning of Section 3.4(a). | ||
16.8.4. | The title of Section 3.5 is amended to Partnership Agreement; Call Rights and the following language is added at the end of the existing language in that Section 3.5: |
Notwithstanding the foregoing or anything to the contrary in the Partnership Agreement, Class A-2 Interests delivered pursuant to a Restricted Equity Unit granted pursuant to this Agreement shall not, until the earlier of (a) the end of the Restricted Period (as defined below) or (b) the breach of any covenant contained in Section 5 of this Agreement (the No-Call Period ), be (i) forfeitable pursuant to Article XII of the Partnership Agreement or (ii) subject to the mandatory purchase provisions of Article XII of the Partnership Agreement; provided that, in each case, any time periods contained in the Partnership Agreement that would otherwise have lapsed during the No-Call Period shall not begin to run until after the expiration of such No-Call Period (or, if later, the date on which the Partnership has actual knowledge of the expiration of such No-Call Period). |
16.8.5. | The Restricted Period as defined in Section 5.1(a) is changed from one (1) year to two (2) years. |
16.9. | The parties agree that TDS Investor (Cayman) L.P. is party to this Agreement for the sole purpose of agreeing to be bound by the provisions of clause 16.8. |
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16.10. | Upon termination of the Employment howsoever arising you will: |
16.10.1. | resign from all offices, trusteeships or positions held by you in the Company (or any other Group Company) and transfer all nominee shares held by you in the Company (or any other Group Company) without compensation for loss of office or otherwise and, should you fail to do so, your manager is irrevocably authorised to appoint some person in your name and on your behalf to do, execute and perform any acts, deeds, documents or things necessary to effect such resignation or transfer; | ||
16.10.2. | deliver (or, if you are dead, of unsound mind or bankrupt, then your personal representatives or such other persons as may be appointed to administer your estate and affairs will deliver) up to the Company or its authorised representative all property including (without limitation) all documents, records, keys, correspondence, discs, tapes, telephones, credit cards or other items in your possession or under his control which relate in any way to the business or affairs or customers of the Company (or any other Group Company) or are the property of the Company (or any other Group Company) and all extracts or copies of them regardless of the medium on which such extracts or copies are stored or held; and | ||
16.10.3. | not at any time after the termination wrongfully represent yourself as being a director of or employed by or connected with the Company (or any other Group Company) nor make or publish any untrue or misleading statement or comment about the Company (or any other Group Company) or their respective officers and employees. |
16.11. | You acknowledge and agree that, notwithstanding that the personal contact is between you and representatives of Clients, Suppliers, Agents and Distributors (collectively referred hereafter as Business Partners), the relationship with them is one which exists with the Company and is valuable to the Company and that, so far as concerns those Business Partners whose business is handled by you, it is capable of being damaged inter alia upon the cessation for any reason of the contract of employment between the Company and you. For the purposes of permitting the Company to ensure so far as possible that any such damage is minimised, and so as to preserve the Companys relationship with its Business Partners after the termination of the contract of employment, and to ensure the continued proper servicing of the requirements of such Business Partners, you hereby undertake generally to co-operate with the Company and comply with the instructions of the Board in securing the handover of the affairs of any such Client, Agent, Supplier or Distributor to any other employee(s) designated by the |
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Company in a manner which will or is designed to ensure that the Companys relationship with such Client is preserved and that the Client continues to receive a proper service from the Company; and acknowledges that any breach of the above undertakings may cause loss or damage to the Company for which it may reasonably seek compensation or injunctive relief from you. | |||
16.12. | With a view to ensuring that your departure can be arranged with the minimum of inconvenience or disruption to the business of the Company and its relationship with its Clients and its other employees, you undertake to mutually agree with your manager the timing and manner of any communication about your departure, and to refrain from informing any of your colleagues (excluding your manager and the Board of Travelport Limited or its successor) about the proposed cessation of your employment hereunder, other than within the agreed communication plan. | ||
16.13. | You acknowledge the right of the Company to monitor and control the performance of its employees and ensure the proper servicing of the requirements of its Clients, and acknowledge the fiduciary obligations attaching to your position. |
17. | Company Property | |
On request and in any event on termination of your employment for any reason you are required to return to the Company all company property including e.g. mobile phones, computer hard and software including discs and all documents in whatever form (including notes and minutes of meetings, customer lists, diaries and address books, computer printouts, plans, projections) together with all copies which are in your possession or under your control. The ownership of all such property and documents will at all time remain vested in the Company. | ||
18. | Restrictive Covenants |
18.1 | You acknowledge that in the course of your employment you are likely to obtain knowledge of Group Companies trade secrets and other confidential information and will have dealings with Clients, Suppliers, Agents and Distributors (collectively referred hereafter as Business Partners) and that the relationships with such Business Partners are proprietary rights belonging to the relevant Group Company and that it is fair and reasonable for the Company to seek to protect the interests of the Group by the provisions of this clause 18. | ||
18.2 | You shall not, either on your own account (whether directly or indirectly) as a representative, employee, partner, director, financier, shareholder or agent of any other person, firm, company or organisation:- |
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(a) | at any time during the Restricted Period hold any Material Interest in a business which is either wholly or partially in competition with any of the Businesses; | ||
(b) | at any time during the Restricted Period, seek in any capacity whatsoever any business, orders or custom for any Restricted Products or Restricted Services from any Client with whom you have dealt at any time during the period of twelve months prior to the Termination Date; | ||
(c) | at any time during the Restricted Period, accept in any capacity whatsoever orders for any Restricted Products or Restricted Services from any Client with whom you have dealt at any time during the period of twelve months prior to the Termination Date; | ||
(d) | at any time before or after the Termination Date, induce or seek to induce by any means involving the disclosure or use of Confidential Business Information any Business Partner to cease dealing with a Group Company or to restrict or vary the terms upon which it deals with the relevant Group Company; | ||
(e) | at any time during the Restricted Period be employed or engaged by any person who at any time during the period of twelve months prior to the Termination Date shall have been a Business Partner for the purpose of carrying out the same kind of work as you have performed for that Business Partner during the period of twelve months prior to the Termination Date; | ||
(f) | at any time during the Restricted Period approach, solicit or seek in any capacity whatsoever any business, orders or custom for any Restricted Products or Restricted Services from any Supplier, Agent or Distributor with whom you have dealt at any time during the period of twelve months prior to the Termination Date; | ||
(g) | at any time during the Restricted Period deal with or accept in any capacity whatsoever orders for any Restricted Products or Restricted Services from any Supplier, Agent or Distributor with whom you have dealt at any time during the period of twelve months prior to the Termination Date; | ||
(h) | at any time during the Restricted Period endeavour to entice away from the relevant Group Company or knowingly employ or engage the services of or procure or assist any third party so to employ or engage the services of any person who shall have been an Employee; |
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(i) | at any time during the Restricted Period endeavour to entice away from the relevant Group Company or knowingly employ or engage the services of or procure or assist any third party so to employ or engage the services of any person who shall have been providing consultancy services to the relevant Group Company at any time in the period of twelve months immediately prior to the Termination Date and who: |
(i) | by reason of his engagement as a consultant by such Group Company is likely to be able to assist a business in or intending to be in competition with such Group Company so to compete; or | ||
(ii) | by reason of his engagement as a consultant by such Group Company is likely to be in possession of any Confidential Business Information; or |
(j) | at any time after the Termination Date represent yourself or permit yourself to be held out by any person, firm or company as being in any way connected with or interested in any Group Company. |
18.3 | Whilst the restrictions referred to in this clause are regarded by the parties hereto as fair and reasonable restrictions to be imposed on you, it is hereby declared that the wording of this clause is severable and so much of the same as a court of competent jurisdiction may regard as unreasonable shall (so far as the same is possible) be deleted. | ||
18.4 | If after your employment ends you propose to enter into any contract of employment, appointment or engagement you must before so doing bring all the terms of this contract (particularly clauses 12, 14, 17 and 18) to the attention of any proposed new employer or organisation appointing you. |
19. | Normal retirement age | |
Your normal retirement age is 65 years. |
20. | Deductions | |
You hereby authorise the Company to deduct from your pay (including holiday pay, sick pay, bonus and pay in lieu of notice) any amounts which are owed by you to the Company or any other company in the Group after due notification and authority (including any costs incurred by the Company under the provisions of the Company Car Policy as amended from time to time). |
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21. | Rules policies, procedures |
21.1. | You must comply at all times with the Companys rules policies and procedures relating to equal opportunities, harassment, health and safety, e-mail and internet use, insider trading and all other rules and procedures introduced by the Company from time to time. Copies of all rules, policies and procedures appear in the Employee Handbook. | ||
21.2. | In addition to those rules policies and procedures detailed in clause 21.1 above, you must comply at all times with the Code and any Code Supplements, as amended from time to time. You will be given a copy of the Code annually, and will also be made aware of any material updates. | ||
21.3. | For the avoidance of doubt the rules, policies and procedures detailed in clause 21.1 and the Code detailed in clause 21.2 above are not incorporated by reference into this contract, are non-contractual and may be changed, replaced or withdrawn at any time at the discretion of the Company. | ||
21.4. | Any breach of the Company rules, policies or procedures or the Code may result in disciplinary action being taken against you, and in turn may, dependent upon the circumstances and the seriousness of the matter concerned, result in the termination of your employment. |
22. | Data Protection |
22.1. | You agree that personal data (including sensitive data) relating to you which has been or is in the future obtained by the Company may be held and processed by the Company (and where necessary its agents or appointed third parties) either by computer or manually for any purpose relating to the administration, management and operation of your employment, or in relation to the Companys legal obligations or business needs. | ||
22.2. | The Group has offices in various countries throughout the world and it may be necessary for one or more of the Groups overseas offices to have access to information held about you by the Company in the UK. However it is only intended by the Company that information about you will be used by the Groups overseas offices for the purpose of enabling the Group to deal with personal issues connected with your employment, including advising relevant statutory authorities in order to obtain a work permit or visa or assisting in your secondment to an overseas office or for pay roll purposes. You agree that the Company may where appropriate transfer personal data (including sensitive data) relating to you to the Groups overseas offices. |
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22.3. | You agree and give authorisation that your company electronic mail and computing resources will be accessible to the company without any further prior consent during your employment and where appropriate after leaving the company. All user ID and passwords combinations may be reset for access in appropriate business circumstances. |
23. | Entire agreement | |
This contract contains the entire and only agreement between us and supersedes all previous agreements between you and the Company, including without limitation the Contract of Employment dated 3 rd November 2006; provided, however, except as expressly amended in clause 16.8, nothing in this contract amends or supersedes the Management Equity Award Agreements between you and TDS Investor (Cayman) L.P. | ||
24. | Changes to your Contract |
24.1. | The Company reserves the right to make reasonable changes to any of your terms and conditions of employment. | ||
24.2. | If the Company changes any of the terms and conditions of your employment it will notify you in writing at least one month in advance of the changes taking effect. |
25. | Meaning of words used | |
In this contract Group means the Company any holding company of the Company for the time being and any subsidiary (as defined in Section 736 of the Companies Act 1985) for the time being of the Company or its holding companies (including without limitation Travelport Limited) and Group Company means any company in the Group. |
26. | Definitions | |
In this agreement the following definitions apply: | ||
Agent means all and any travel agents and any other person, firm, company or organisation materially engaged in the business of travel agency with whom you have had contact or about whom you became aware of or informed in the course of your employment: |
(a) | who shall at the Termination Date be negotiating with a Group Company to be involved in the supply of Restricted Products or Restricted Services; or |
- 19 -
(b) | who has at any time during the period of twelve months prior to the Termination Date been involved in the supply of Restricted Products or Restricted Services to a Group Company. |
Associated Company means any company 20 per cent or more of the equity share capital of which is owned directly or indirectly by the Company (applying the provisions of section 838 of the Income and Corporation Taxes Act 1988 in the determination of ownership), or any other Group Company or any company to which the Company (or any other Group Company) renders managerial, administrative or technical services; |
Businesses means all and any trades or other commercial activities of any Group Company: |
(a) | with which you shall have been concerned or involved to any material extent at any time during the period of twelve months prior to the Termination Date and which the relevant Group Company shall carry on with a view to profit; or: | ||
(b) | which the relevant Group Company shall at the Termination Date have determined to carry on with a view to profit in the immediate or foreseeable future and in relation to which you shall at the Termination Date possess any Confidential Business information; |
Client means any person, firm, company or organisation with whom you had contact or about whom you became aware of or informed in the course of your employment: |
(a) | who shall at the Termination Date be negotiating with a Group Company for the supply of any Restricted Products or the provision of any Restricted Services; or | ||
(b) | to whom a Group Company shall at any time during the period of twelve months prior to the Termination Date have supplied any Restricted Products or provided any Restricted Services; |
Confidential Business Information means all and any Corporate Information, Marketing Information, Technical Information and other information (whether or not recorded in documentary form or on computer disk or tape) which is of a commercially sensitive or confidential nature and any information in respect of which the Company owes an obligation of confidentiality to any third party: |
(a) | which you have acquired at any time during your employment by the Company but which does not form part of your own stock in trade; and | ||
(b) | which is not readily ascertainable to persons not connected with the Company either at all or without a significant expenditure of labour, skill or money; |
- 20 -
Corporate Information means all and any information (whether or not recorded in documentary form or on computer disk or tape) relating to the business methods, corporate plans, management systems, finances, maturing new business opportunities or research and development projects of any Group Company; |
Distributor means any person, firm, company or organisation with whom you had contact or about whom you became aware of or informed in the course of your employment: |
(a) | who has pursuant to a contract provided sales and marketing services to a Group Company in any territory of the world during the period of twelve months prior to the Termination Date; or | ||
(b) | who shall at the Termination Date be negotiating with a Group Company to provide sales and marketing services to a Group Company in any territory of the world; |
Employee means: |
(a) | any person who is or was, at any time during the period of twelve months ending on the Termination Date employed or engaged by a Group Company in a senior management, senior sales, senior technical or legal position and who, by reason of such a position, possesses any Confidential Business Information or is likely to be able to solicit the custom of any Client or to induce any Client to cease dealing with the relevant Group Company, were he or she to accept the employment or engagement offered and with whom you shall have dealt at any time during the period of 12 months prior to the Termination Date; or | ||
(b) | any person who is or was, at any time during the period of twelve months ending on the Termination Date employed or engaged by a Group Company and who at any time in the six months preceding the Termination Date reported to you directly or indirectly, and with whom you worked on anything other than an occasional basis during that six month period; |
Group means all Group Companies from time to time; |
Group Company means the Company and any Subsidiary or Holding Company of the Company and any Subsidiary of that Holding Company (and any Associated Company) from time to time; |
Holding Company means a holding company as defined in section 736 of the Companies Act 1985; |
- 21 -
Marketing Information means all and any information (whether or not recorded in documentary form or on computer disk or tape) relating to the marketing or sales of any past, present or future product or service of a Group Company including, without limitation, sales targets and statistics, market research reports, sales techniques, price lists, discount structures, advertising and promotional material, the names, addresses, telephone numbers, contact names and identities of clients and potential clients, commercial, technical contacts of and suppliers and potential suppliers or consultants to a Group Company, the nature of their business operations, their requirements for any product or service sold or purchased by a Group Company and all confidential aspects of their business relationship with the relevant Group Company; |
Material Interest means: |
(a) | the holding of any position as director, officer, employee, consultant, partner, principal or agent; | ||
(b) | the direct or indirect control or ownership (whether jointly or alone) of any shares (or any voting rights attached to them) or debentures save for the ownership for investment purposes only of not more than 3 per cent of the issued ordinary share of any company whose shares are listed on any Recognised Investment Exchange (as defined in section 207 of the Financial Services Act 1986); or | ||
(c) | the direct or indirect provision of any financial assistance; |
Restricted Period means the period of twelve months commencing on the Termination Date unless the Company shall have exercised its right to place you on garden leave in accordance with clause 16.3 above in which case such period of twelve months shall be reduced by such period as you have spent on garden leave; |
Restricted Products means all and any products of a kind which shall be dealt in, produced, marketed or sold by a Group Company in the ordinary course of the Businesses; |
Restricted Services means all and any services of a kind which shall be provided by a Group Company in the ordinary course of the Businesses; |
Subsidiary means a subsidiary as defined in section 736 of the Companies Act 1985; |
Supplier means any person, firm, company or organisation with whom you had contact or about whom you became aware of or informed in the course of your employment: |
- 22 -
(a) | who shall at the Termination Date be negotiating with a Group Company to supply goods and/or services; or | ||
(b) | from whom a Group Company shall at any time during the period of twelve months prior to the Termination Date have obtained any goods and/ or services; |
Technical Information means all and any trade secrets, source codes, computer programs, inventions, designs, know-how discoveries, technical specifications and other technical information (whether or not recorded in documentary form or on computer disk or tape) relating to the creation, production or supply of any past, present or future product or service of a Group Company; |
Termination Date means the date on which your employment hereunder terminates and references to following the Termination Date shall be construed as from and including such date of termination. |
27.1. | Each party to this agreement may give any notice or other communication under or in connection with this agreement by letter or facsimile transmission addressed to the other party. The address for service for you shall be the address provided to the Company by you and the address for service for the Company shall be as set forth in 27.2.4. | ||
27.2. | Any notice or other communication will be deemed to be served: |
27.2.1. | if personally delivered, at the time of delivery and, in proving service, it shall be sufficient to produce a receipt for the notice signed by or on behalf of the addressee; | ||
27.2.2. | if by letter, at noon on the Business Day after such letter was posted and, in proving service, it shall be sufficient to prove that the letter was properly stamped first class addressed and delivered to the postal authorities; and | ||
27.2.3. | if by facsimile transmission, at the time and on the day of transmission, and, in proving service, it shall be sufficient to produce a transmission report from the senders facsimile machine indicating that the facsimile was sent in its entirety to the recipients facsimile number. |
- 23 -
27.2.4. | Details for service of any notice or other communication on the Company are as follows: |
- 24 -
|
||||
Witness:
|
||||
Signature:
|
/s/ G. J. Dadswell | |||
|
||||
Name:
|
G. J. Dadswell | |||
|
||||
Work Address:
|
Axis One | |||
|
||||
|
Axis Park, 10 Hurricane Way, Langley, SL38AG | |||
|
||||
Date:
|
2/10/2009 | |||
|
||||
|
- 25 -
1
|
By: | /s/ Mike Adams | ||||
|
||||||
|
Name: | Mike Adams | ||||
|
||||||
|
Title: | VP, Global Benefits | ||||
|
||||||
|
Date: | 12/21/10 | ||||
|
2
Supplemental Bonus Award | Period | Planned Scheduled Payment | ||
1Q 2011
|
1 st January to 31 st March 2011 | May 2011* |
* | Subject to employment with Travelport Limited or its majority-owned subsidiaries (collectively, the Company) at the time of payment and the other terms and conditions of the Plan. |
1. | An executive who is not employed by the Company at the date of payment; | ||
2. | An executive who has resigned at any time prior to the date of payment; | ||
3. | An executive who has resigned and is still working their notice at the time of payment; and | ||
4. | Any executive who has been terminated by the Company for performance, Cause or any other reason prior to the date of payment; |
Re: | Tenth Amendment to Subscriber Services Agreement, dated as of July 23, 2007 (Agreement) between Travelport, LP (Travelport), Travelport Global Distribution System B.V., (TGDS) and Orbitz Worldwide, LLC (Subscriber) |
1. | The Custom Terms and Conditions Attachment (Galileo Services) RoW is amended as set forth in Exhibit A . | ||
2. | General . This Amendment shall be binding upon and inure to the benefit of and be enforceable by the Parties hereto or their successors in interest, except as expressly provided in the Agreement. Each Party to this Amendment agrees that, other than as expressly set out in this Amendment, nothing in this Amendment is intended to alter the rights, duties and obligations of the Parties under the Agreement, which shall remain in full force and effect as amended hereby. In the event of a conflict between the terms and conditions of this Amendment and the terms and conditions of the Agreement, the terms and conditions of this Amendment shall govern. This Amendment may be executed by the Parties in separate counterparts and each counterpart shall be deemed to be an original, but all such counterparts together shall constitute one and the same instrument. |
1
The Parties have caused this Amendment to be executed by the signatures of their respective authorized representatives. |
Orbitz Worldwide, LLC |
Travelport, LP
By: Travelport Holdings, LLC, its General Partner |
|||||||||
|
||||||||||
Signature:
|
/s/ Stephen Praven | Signature: | /s/ Scott Hyden | |||||||
|
Name: | Stephen Praven | Name: | Scott Hyden | ||||||
|
||||||||||
|
Title: | VP, Business Development | Title: | VP Sales | ||||||
|
||||||||||
Date:
|
10/24/10 | Date: | 10/25/10 | |||||||
|
||||||||||
Travelport Global Distribution System B.V. | ||||||||||
|
||||||||||
|
Signature: | /s/ Marco Van Ieperan | ||||||||
|
Name: | Marco Van Ieperan | ||||||||
|
||||||||||
|
Title: | Director | ||||||||
|
||||||||||
|
Date: | 26.10.2010 | ||||||||
2
Pension:
|
Clause 6.2 of your March 2007 Service Agreement with Galileo International Limited (now Travelport International Limited) (the Service Agreement) is deleted in its entirety and replaced with the following: | |
|
The Company operates a defined contribution pension plan. While the Executive remains eligible for the Group Personal Pension Plan (or another personal pension plan of the Executives choosing or the equivalent cash compensation), the Companys contributions are capped at the lesser of (a) 15% of the Executives then-current annual base salary (currently £500,000 under Clause 5.1.1 of the Service Agreement) or (b) the maximum amount of the annual allowance permitted by HM Revenue & Customs without additional tax (i.e. £50,000 per annum for the 2011-2012 tax year), to be contributed monthly by the Company. The Company pension scheme is contracted in to the State Earnings Related Pension Scheme and National Insurance contributions are payable accordingly. | |
Cash Allowance:
|
You will receive a per annum cash allowance in an amount equal to (a) 15% of your then-current annual base salary minus (b) the Companys pension contribution under Clause 6.2 of the Service Agreement (as amended herein), less all required deductions and withholdings, to be paid monthly. For the 2011-2012 tax year, based on your current base annual salary of £500,000, this annual cash allowance will be £25,000 ((£500,000 x 15%) £50,000). For the avoidance of doubt, this amount is not part of your annual base salary and therefore shall not be used as the basis for calculating bonus (including under Clause 8.1 of the Service Agreement), the termination payment under Clause 9.1 of the Service Agreement, pension under Clause 6.2 of the Service Agreement (as amended herein) or any other entitlements. |
Signature
|
/s/ Gordon Wilson | |
|
||
|
||
Date
|
29 March 2011 | |
|
Pension:
|
Group Personal Pension Plan. The company contributions are capped at the lesser of (a) 15% of your then-current annual base salary or (b) the maximum amount of the annual allowance permitted by HM Revenue & Customs without additional tax (i.e. £50,000 per annum for the 2011-2012 tax year), to be contributed monthly by the Company. You are not required to contribute in order to receive these Company contributions, but in the event that the Companys contributions are less than the maximum amount of the annual allowance permitted by HM Revenue & Customs without additional tax (i.e. £50,000 per annum for the 2011-2012 tax year), you can contribute the difference between the Companys contributions and the maximum amount of the annual allowance permitted by HM Revenue & Customs without additional tax ( i.e., based on your current base salary of £285,000, you can contribute £7,250 for the 2011-2012 tax year). |
Signature
|
/s/ Philip Emery | |
|
||
|
||
Date
|
29-03-11 | |
|
Year Ended | Year Ended | Year Ended | ||||||||||
December 31, | December 31, | December 31, | ||||||||||
(in $ millions) | 2010 | 2009 | 2008 | |||||||||
Earnings available to cover fixed charges:
|
||||||||||||
Income (loss) from operations before income
taxes and equity in losses of investment in Orbitz
Worldwide
|
44 | (775 | ) | 11 | ||||||||
Plus: Fixed charges
|
281 | 297 | 359 | |||||||||
|
||||||||||||
Earnings available to cover fixed charges
|
325 | (478 | ) | 370 | ||||||||
|
||||||||||||
Fixed Charges:
|
||||||||||||
Interest, including amortization of deferred financing costs
|
272 | 287 | 347 | |||||||||
Interest portion of rental payment
|
9 | 10 | 10 | |||||||||
|
||||||||||||
Total fixed charges
|
281 | 297 | 357 | |||||||||
|
||||||||||||
Ratio of Earnings to Fixed Charges
|
1.16 | n/a | 1.04 |
Name | Jurisdiction of Incorporation | |
4Oceans Limited (in liquidation)
|
England and Wales | |
Bastion Surety Limited
|
England and Wales | |
Castlenau Limited
|
Ireland | |
Castlenau Nominees Limited
|
Ireland | |
Cendant Hellas EPE
|
Greece | |
Coelis
S.A.S.
|
France | |
Columbus Technology Developments Limited
|
Jersey | |
Covia Canada Partnership Corp
|
Canada | |
Donvand Limited
|
England and Wales | |
Ebookers (India) Private Limited (in liquidation)
|
India | |
Galileo Afrique Centrale Sarl
|
Cameroon | |
Galileo Asia, LLC
|
Delaware | |
Galileo Central West Africa (Senegal) SARL
|
Senegal | |
Galileo Central West Africa (Ivory Coast) SARL
|
Ivory Coast | |
Galileo Deutschland GmbH
|
Germany | |
Galileo España S.A.
|
Spain | |
Galileo France S.a.r.l.
|
France | |
Galileo International BV
|
Netherlands | |
Galileo International Technology, LLC
|
Delaware | |
Galileo Latin America, L.L.C.
|
Delaware | |
Galileo Malaysia Limited
|
Delaware | |
Galileo Malaysia LLC
|
Hong Kong | |
Galileo Nederland II BV
|
Netherlands | |
Galileo Nordiska Aktiebolag
|
Sweden | |
Galileo Portugal Limited
|
England and Wales | |
Galileo Technologies, LLC
|
Delaware | |
Gate Pacific Limited
|
Mauritius | |
GI Worldwide Holdings C.V.
|
Netherlands | |
GIW Holdings C.V.
|
Netherlands | |
GTA
Americas LLC
|
Delaware | |
GTA
Holdco Limited
|
England and Wales | |
GTA Reisen GmbH
|
Germany | |
GTA (Hong Kong) Limited
|
Hong Kong | |
GTA (Hong Kong) Online Sales Limited
|
Hong Kong | |
GTA Australasia Pty Limited
|
Australia | |
GTA Gullivers Travel Associates GmbH
|
Austria | |
GTA North America, Inc.
|
Delaware | |
GtaTravel.com Ltd.
|
England and Wales | |
Gullivers Associates (Singapore) Pte Ltd.
|
Singapore | |
Gullivers (Beijing) Commercial Consulting Services Limited
|
China | |
Gullivers Jersey 1 Limited
|
Jersey Channel Islands | |
Gullivers Jersey 2 Limited
|
Jersey Channel Islands | |
Gullivers Jersey 3 Limited
|
Jersey Channel Islands | |
Gullivers Luxembourg S.a.r.l.
|
Luxembourg |
Name
Jurisdiction of Incorporation
England and Wales
Japan
England and Wales
England and Wales
Spain
China
France
Hong Kong
UK
United Arab Emirates
New Zealand
China
Thailand
Korea
Austria
Ireland
Isle of Man
Ireland
United Arab Emirates
Thailand
Spain
England and Wales
England and Wales
Italy
Japan
New South Wales, Australia
Hong Kong
Israel
Delaware
Delaware
Indonesia
England and Wales
England and Wales
Latvia
Singapore
New Zealand
New South Wales, Australia
France
Luxembourg
England and Wales
Ireland
Delaware
Colombia
Argentina
Bahrain
Belgium
Bermuda
Brazil
Ontario, Canada
Cayman Islands
Chile
Cyprus
Denmark
Netherlands
Oman
Delaware
Delaware
Hungary
Delaware
England and Wales
Name
Jurisdiction of Incorporation
Delaware
England and Wales
Luxembourg
Switzerland
Luxembourg
Italy
Luxembourg
Delaware
Delaware
Mexico
Delaware
Peru
Poland
Romania
Saudi Arabia
England and Wales
Southern Africa
Sweden
Switzerland
Taiwan
Germany
Germany
United Kingdom
Venezuela
Australia
Norway
Denmark
Gibraltar
Delaware
Delaware
Hungary
The Netherlands
Greece
Delaware
Singapore
Georgia
Delaware
Georgia
Georgia
Delaware
California
Georgia
Costa Rica
Chile
Delaware
Hong Kong
Delaware
1
2
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
Net revenue
|
$ | 757,487 | $ | 737,648 | $ | 870,276 | ||||||
Cost and expenses
|
||||||||||||
Cost of revenue
|
153,516 | 138,376 | 163,335 | |||||||||
Selling, general and administrative
|
244,114 | 256,659 | 271,562 | |||||||||
Marketing
|
217,520 | 214,445 | 309,980 | |||||||||
Depreciation and amortization
|
72,891 | 69,156 | 66,480 | |||||||||
Impairment of goodwill and intangible assets
|
70,151 | 331,527 | 296,989 | |||||||||
Impairment of property and equipment and other assets (see
Notes 4 and 9)
|
11,099 | | | |||||||||
Total operating expenses
|
769,291 | 1,010,163 | 1,108,346 | |||||||||
Operating (loss)
|
(11,804 | ) | (272,515 | ) | (238,070 | ) | ||||||
Other (expense) income
|
||||||||||||
Net interest expense
|
(44,070 | ) | (57,322 | ) | (62,467 | ) | ||||||
Other income
|
18 | 2,115 | 20 | |||||||||
Total other expense
|
(44,052 | ) | (55,207 | ) | (62,447 | ) | ||||||
Loss before income taxes
|
(55,856 | ) | (327,722 | ) | (300,517 | ) | ||||||
Provision (benefit) for income taxes
|
2,381 | 9,233 | (1,955 | ) | ||||||||
Net loss
|
$ | (58,237 | ) | $ | (336,955 | ) | $ | (298,562 | ) | |||
Net loss per share basic and diluted:
|
||||||||||||
Net loss per share
|
$ | (0.58 | ) | $ | (4.01 | ) | $ | (3.58 | ) | |||
Weighted-average shares outstanding
|
101,269,274 | 84,073,593 | 83,342,333 | |||||||||
3
December 31,
|
December 31,
|
|||||||||||
Assets
|
2010 | 2009 | ||||||||||
Current assets:
|
||||||||||||
Cash and cash equivalents
|
$ | 97,222 | $ | 88,656 | ||||||||
Accounts receivable (net of allowance for doubtful accounts of
$956 and $935, respectively)
|
54,702 | 54,708 | ||||||||||
Prepaid expenses
|
17,425 | 17,399 | ||||||||||
Due from Travelport, net
|
15,449 | 3,188 | ||||||||||
Other current assets
|
3,627 | 5,702 | ||||||||||
Total current assets
|
188,425 | 169,653 | ||||||||||
Property and equipment, net
|
158,063 | 180,962 | ||||||||||
Goodwill
|
677,964 | 713,123 | ||||||||||
Trademarks and trade names
|
128,431 | 155,090 | ||||||||||
Other intangible assets, net
|
7,649 | 18,562 | ||||||||||
Deferred income taxes, non-current
|
8,147 | 9,954 | ||||||||||
Other non-current assets
|
48,024 | 46,898 | ||||||||||
Total Assets
|
$ | 1,216,703 | $ | 1,294,242 | ||||||||
Liabilities and Shareholders Equity
|
||||||||||||
Current liabilities:
|
||||||||||||
Accounts payable
|
$ | 26,491 | $ | 30,279 | ||||||||
Accrued merchant payable
|
233,850 | 219,073 | ||||||||||
Accrued expenses
|
105,798 | 112,771 | ||||||||||
Deferred income
|
30,850 | 30,924 | ||||||||||
Term loan, current
|
19,808 | 20,994 | ||||||||||
Other current liabilities
|
5,994 | 5,162 | ||||||||||
Total current liabilities
|
422,791 | 419,203 | ||||||||||
Term loan, non-current
|
472,213 | 555,582 | ||||||||||
Line of credit
|
| 42,221 | ||||||||||
Tax sharing liability
|
101,545 | 108,736 | ||||||||||
Unfavorable contracts
|
8,068 | 9,901 | ||||||||||
Other non-current liabilities
|
22,233 | 28,096 | ||||||||||
Total Liabilities
|
1,026,850 | 1,163,739 | ||||||||||
Commitments and contingencies (see Note 10)
|
||||||||||||
Shareholders Equity:
|
||||||||||||
Preferred stock, $0.01 par value, 100 shares
authorized, no shares issued or outstanding
|
| | ||||||||||
Common stock, $0.01 par value, 140,000,000 shares
authorized, 102,342,860 and 83,831,561 shares issued and
outstanding, respectively
|
1,023 | 838 | ||||||||||
Treasury stock, at cost, 25,237 and 24,521 shares held,
respectively
|
(52 | ) | (48 | ) | ||||||||
Additional paid in capital
|
1,029,215 | 921,425 | ||||||||||
Accumulated deficit
|
(843,609 | ) | (785,372 | ) | ||||||||
Accumulated other comprehensive income (loss) (net of
accumulated tax benefit of $2,558 and $2,558, respectively)
|
3,276 | (6,340 | ) | |||||||||
Total Shareholders Equity
|
189,853 | 130,503 | ||||||||||
Total Liabilities and Shareholders Equity
|
$ | 1,216,703 | $ | 1,294,242 | ||||||||
4
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
Operating activities:
|
||||||||||||
Net loss
|
$ | (58,237 | ) | $ | (336,955 | ) | $ | (298,562 | ) | |||
Adjustments to reconcile net loss to net cash provided by
operating activities:
|
||||||||||||
Net gain on extinguishment of debt
|
(57 | ) | (2,172 | ) | | |||||||
Depreciation and amortization
|
72,891 | 69,156 | 66,480 | |||||||||
Impairment of goodwill and intangible assets
|
70,151 | 331,527 | 296,989 | |||||||||
Impairment of property and equipment and other assets
|
11,099 | | | |||||||||
Amortization of unfavorable contract liability
|
(9,226 | ) | (3,300 | ) | (3,300 | ) | ||||||
Non-cash net interest expense
|
15,797 | 15,451 | 18,104 | |||||||||
Deferred income taxes
|
1,494 | 6,920 | (4,032 | ) | ||||||||
Stock compensation
|
12,535 | 14,099 | 14,812 | |||||||||
Provision for bad debts
|
34 | 566 | 25 | |||||||||
Changes in assets and liabilities:
|
||||||||||||
Accounts receivable
|
(256 | ) | 4,508 | 429 | ||||||||
Deferred income
|
(831 | ) | 8,575 | (436 | ) | |||||||
Due to/from Travelport, net
|
(12,126 | ) | 6,344 | (5,351 | ) | |||||||
Accrued merchant payable
|
14,593 | 3,582 | 3,232 | |||||||||
Accounts payable, accrued expenses and other current liabilities
|
(11,636 | ) | (10,848 | ) | (3,030 | ) | ||||||
Other
|
(7,616 | ) | (2,379 | ) | (9,102 | ) | ||||||
Net cash provided by operating activities
|
98,609 | 105,074 | 76,258 | |||||||||
Investing activities:
|
||||||||||||
Property and equipment additions
|
(40,010 | ) | (42,909 | ) | (58,203 | ) | ||||||
Changes in restricted cash
|
(132 | ) | (682 | ) | | |||||||
Proceeds from asset sales
|
| | 32 | |||||||||
Net cash (used in) investing activities
|
(40,142 | ) | (43,591 | ) | (58,171 | ) | ||||||
Financing activities:
|
||||||||||||
Proceeds from issuance of common stock, net of issuance costs
|
48,930 | | | |||||||||
Payments of fees to repurchase a portion of the term loan
|
(248 | ) | | | ||||||||
Capital lease payments and payments on the term loan
|
(20,994 | ) | (5,924 | ) | (7,070 | ) | ||||||
Payments to extinguish debt
|
(13,488 | ) | (7,774 | ) | | |||||||
Employee tax withholdings related to net share settlements of
equity-based awards
|
(2,984 | ) | (422 | ) | (659 | ) | ||||||
Proceeds from exercise of employee stock options
|
72 | 422 | | |||||||||
Payments on tax sharing liability
|
(18,885 | ) | (11,075 | ) | (19,577 | ) | ||||||
Proceeds from line of credit
|
| 99,457 | 68,935 | |||||||||
Payments on line of credit
|
(42,221 | ) | (81,052 | ) | (49,447 | ) | ||||||
Proceeds from note payable
|
800 | | | |||||||||
Payments on note payable
|
(57 | ) | | | ||||||||
Net cash (used in) financing activities
|
(49,075 | ) | (6,368 | ) | (7,818 | ) | ||||||
Effects of changes in exchange rates on cash and cash equivalents
|
(826 | ) | 2,348 | (3,761 | ) | |||||||
Net increase in cash and cash equivalents
|
8,566 | 57,463 | 6,508 | |||||||||
Cash and cash equivalents at beginning of period
|
88,656 | 31,193 | 24,685 | |||||||||
Cash and cash equivalents at end of period
|
$ | 97,222 | $ | 88,656 | $ | 31,193 | ||||||
Supplemental disclosure of cash flow information:
|
||||||||||||
Income tax payments (refunds), net
|
$ | 1,120 | $ | 1,151 | $ | (2,082 | ) | |||||
Cash interest payments, net of capitalized interest of $17, $82
and $544, respectively
|
$ | 27,935 | $ | 42,075 | $ | 47,467 | ||||||
Non-cash investing activity:
|
||||||||||||
Capital expenditures incurred not yet paid
|
$ | 2,948 | $ | 307 | $ | 2,011 | ||||||
Non-cash financing activity:
|
||||||||||||
Repayment of term loan in connection with debt-equity exchange
(see Note 7)
|
$ | 49,564 | $ | | $ | |
5
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
Net loss
|
$ | (58,237 | ) | $ | (336,955 | ) | $ | (298,562 | ) | |||
Other comprehensive income (loss), net of income taxes
|
||||||||||||
Currency translation adjustment
|
7,197 | 5,602 | (6,947 | ) | ||||||||
Unrealized gains (losses) on floating to fixed interest rate
swaps
|
2,419 | 9,520 | (8,367 | ) | ||||||||
Other comprehensive income (loss)
|
9,616 | 15,122 | (15,314 | ) | ||||||||
Comprehensive loss
|
$ | (48,621 | ) | $ | (321,833 | ) | $ | (313,876 | ) | |||
6
Accumulated Other
|
||||||||||||||||||||||||||||||||||||
Comprehensive
|
||||||||||||||||||||||||||||||||||||
(Loss) Income | ||||||||||||||||||||||||||||||||||||
Net Unrealized
|
||||||||||||||||||||||||||||||||||||
(Losses) Gains from | ||||||||||||||||||||||||||||||||||||
Additional
|
Interest
|
Foreign
|
Total
|
|||||||||||||||||||||||||||||||||
Common Stock | Treasury Stock |
Paid in
|
Accumulated
|
Rate
|
Currency
|
Shareholders
|
||||||||||||||||||||||||||||||
Shares | Amount | Shares | Amount | Capital | Deficit | Swaps | Translation | Equity | ||||||||||||||||||||||||||||
Balance at December 31, 2007
|
83,107,909 | $ | 831 | 8,852 | $ | 1 | $ | 893,131 | $ | (149,855 | ) | $ | (3,930 | ) | $ | (2,218 | ) | $ | 737,960 | |||||||||||||||||
Net loss
|
| | | | | (298,562 | ) | | | (298,562 | ) | |||||||||||||||||||||||||
Amortization of equity-based compensation awards granted to
employees, net of shares withheld to satisfy employee tax
withholding obligations upon vesting
|
| | | | 14,191 | | | | 14,191 | |||||||||||||||||||||||||||
Common shares issued upon vesting of restricted stock units
|
233,878 | 3 | | | (3 | ) | | | | | ||||||||||||||||||||||||||
Common shares issued upon lapse of restrictions on deferred
stock units
|
12,853 | | | | | | | | | |||||||||||||||||||||||||||
Common shares withheld to satisfy employee tax withholding
obligations upon vesting of restricted stock
|
(2,617 | ) | | 2,617 | (38 | ) | | | | | (38 | ) | ||||||||||||||||||||||||
Restricted stock forfeited
|
(6,586 | ) | | 6,586 | | | | | | | ||||||||||||||||||||||||||
Other comprehensive loss
|
| | | | | | (8,367 | ) | (6,947 | ) | (15,314 | ) | ||||||||||||||||||||||||
Balance at December 31, 2008
|
83,345,437 | 834 | 18,055 | (37 | ) | 907,319 | (448,417 | ) | (12,297 | ) | (9,165 | ) | 438,237 | |||||||||||||||||||||||
Net loss
|
| | | | | (336,955 | ) | | | (336,955 | ) | |||||||||||||||||||||||||
Amortization of equity-based compensation awards granted to
employees, net of shares withheld to satisfy employee tax
withholding obligations upon vesting
|
| | | | 13,688 | | | | 13,688 | |||||||||||||||||||||||||||
Common shares issued upon vesting of restricted stock units
|
425,068 | 4 | | | (4 | ) | | | | | ||||||||||||||||||||||||||
Common shares issued upon exercise of stock options
|
67,522 | | | | 422 | | | | 422 | |||||||||||||||||||||||||||
Common shares withheld to satisfy employee tax withholding
obligations upon vesting of restricted stock
|
(4,453 | ) | | 4,453 | (11 | ) | | | | | (11 | ) | ||||||||||||||||||||||||
Restricted stock forfeited
|
(2,013 | ) | | 2,013 | | | | | | | ||||||||||||||||||||||||||
Other comprehensive income
|
| | | | | | 9,520 | 5,602 | 15,122 | |||||||||||||||||||||||||||
Balance at December 31, 2009
|
83,831,561 | 838 | 24,521 | (48 | ) | 921,425 | (785,372 | ) | (2,777 | ) | (3,563 | ) | 130,503 | |||||||||||||||||||||||
Net loss
|
| | | | | (58,237 | ) | | | (58,237 | ) | |||||||||||||||||||||||||
Amortization of equity-based compensation awards granted to
employees, net of shares withheld to satisfy employee tax
withholding obligations upon vesting
|
| | | | 9,555 | | | | 9,555 | |||||||||||||||||||||||||||
Common shares issued pursuant to Exchange Agreement and Stock
Purchase Agreement (see Note 7)
|
17,166,673 | 172 | | | 98,176 | | | | 98,348 | |||||||||||||||||||||||||||
Common shares issued upon vesting of restricted stock units
|
1,333,624 | 13 | | | (13 | ) | | | | | ||||||||||||||||||||||||||
Common shares issued upon exercise of stock options
|
11,718 | | | | 72 | | | | 72 | |||||||||||||||||||||||||||
Common shares withheld to satisfy employee tax withholding
obligations upon vesting of restricted stock
|
(716 | ) | | 716 | (4 | ) | | | | | (4 | ) | ||||||||||||||||||||||||
Other comprehensive income
|
| | | | | | 2,419 | 7,197 | 9,616 | |||||||||||||||||||||||||||
Balance at December 31, 2010
|
102,342,860 | $ | 1,023 | 25,237 | $ | (52 | ) | $ | 1,029,215 | $ | (843,609 | ) | $ | (358 | ) | $ | 3,634 | $ | 189,853 | |||||||||||||||||
7
1. | Basis of Presentation |
2. | Summary of Significant Accounting Policies |
8
9
10
11
Asset Category
|
Estimated Useful Life
|
|
Leasehold improvements
|
Shorter of assets useful life or non-cancellable lease term | |
Capitalized software
|
3 - 10 years | |
Furniture, fixtures and equipment
|
3 - 7 years |
12
13
14
3. | Impairment of Goodwill and Intangible Assets |
15
16
4. | Property and Equipment, Net |
December 31, 2010 | December 31, 2009 | |||||||
(in thousands) | ||||||||
Capitalized software
|
$ | 252,968 | $ | 221,261 | ||||
Furniture, fixtures and equipment
|
72,941 | 68,896 | ||||||
Leasehold improvements
|
13,352 | 13,443 | ||||||
Construction in progress
|
14,310 | 13,482 | ||||||
Gross property and equipment
|
353,571 | 317,082 | ||||||
Less: accumulated depreciation and amortization
|
(195,508 | ) | (136,120 | ) | ||||
Property and equipment, net
|
$ | 158,063 | $ | 180,962 | ||||
17
5. | Goodwill and Intangible Assets |
December 31, 2010 | December 31, 2009 | |||||||
(in thousands) | ||||||||
Goodwill and Indefinite-Lived Intangible Assets:
|
||||||||
Goodwill
|
$ | 677,964 | $ | 713,123 | ||||
Trademarks and trade names
|
128,431 | 155,090 |
Amount | ||||
(in thousands) | ||||
Balance at December 31, 2008, net of accumulated impairment
of $209,753
|
$ | 948,648 | ||
Impairment (a)
|
(249,446 | ) | ||
Impact of foreign currency translation (b)
|
13,921 | |||
Balance at December 31, 2009, net of accumulated impairment
of $459,199
|
713,123 | |||
Impairment (a)
|
(41,753 | ) | ||
Impact of foreign currency translation (b)
|
6,594 | |||
Balance at December 31, 2010, net of accumulated impairment
of $500,952
|
$ | 677,964 | ||
(a) | During the years ended December 31, 2010, December 31, 2009 and December 31, 2008, we recorded non-cash impairment charges related to goodwill and trademarks and trade names (see Note 3 Impairment of Goodwill and Intangible Assets). | |
(b) | Goodwill is allocated among our subsidiaries, including certain international subsidiaries. As a result, the carrying amount of our goodwill is impacted by foreign currency translation each period. |
18
December 31, 2010 | December 31, 2009 | |||||||||||||||||||||||||||||||
Gross
|
Net
|
Weighted-
|
Gross
|
Net
|
Weighted-
|
|||||||||||||||||||||||||||
Carrying
|
Accumulated
|
Carrying
|
Average
|
Carrying
|
Accumulated
|
Carrying
|
Average
|
|||||||||||||||||||||||||
Amount | Amortization | Amount | Useful Life | Amount | Amortization | Amount | Useful Life | |||||||||||||||||||||||||
(in thousands) | (in years) | (in thousands) | (in years) | |||||||||||||||||||||||||||||
Finite-Lived Intangible Assets:
|
||||||||||||||||||||||||||||||||
Customer relationships (c)
|
$ | 12,000 | $ | (6,625 | ) | $ | 5,375 | 6 | $ | 66,190 | $ | (50,329 | ) | $ | 15,861 | 4 | ||||||||||||||||
Vendor relationships and other
|
5,779 | (3,505 | ) | 2,274 | 7 | 5,072 | (2,371 | ) | 2,701 | 7 | ||||||||||||||||||||||
Total Finite-Lived Intangible Assets
|
$ | 17,779 | $ | (10,130 | ) | $ | 7,649 | 7 | $ | 71,262 | $ | (52,700 | ) | $ | 18,562 | 5 | ||||||||||||||||
(c) | During the year ended December 31, 2010, we wrote off the gross carrying amount and corresponding accumulated amortization related to $54.2 million of fully amortized customer relationship intangible assets whose useful lives expired during the period. |
Year
|
(in thousands) | |||
2011
|
$ | 3,138 | ||
2012
|
2,067 | |||
2013
|
1,717 | |||
2014
|
727 | |||
Total
|
$ | 7,649 | ||
6. | Accrued Expenses |
December 31, 2010 | December 31, 2009 | |||||||
(in thousands) | ||||||||
Employee costs (a)
|
$20,367 | $32,684 | ||||||
Tax sharing liability, current
|
19,813 | 17,390 | ||||||
Advertising and marketing
|
18,282 | 17,897 | ||||||
Contract exit costs (b)
|
7,732 | 4,858 | ||||||
Customer service costs
|
6,306 | 5,575 | ||||||
Professional fees
|
5,900 | 4,414 | ||||||
Customer refunds
|
5,126 | 2,963 | ||||||
Airline rebates
|
4,907 | 6,121 | ||||||
Technology costs
|
4,894 | 4,413 | ||||||
Customer incentive costs
|
2,541 | 2,062 | ||||||
Unfavorable contracts, current
|
2,490 | 3,300 | ||||||
Other
|
7,440 | 11,094 | ||||||
Total accrued expenses
|
$105,798 | $112,771 | ||||||
19
(a) | The change in accrued employee costs primarily represented lower accrued employee incentive compensation at December 31, 2010 compared with December 31, 2009. | |
(b) | In connection with our early termination of an agreement in 2007, we are required to make termination payments totaling $18.5 million from January 1, 2008 to December 31, 2016. We accreted interest expense of $1.0 million, $1.3 million and $1.4 million related to the termination liability during the years ended December 31, 2010, December 31, 2009 and December 31, 2008, respectively. We also made termination payments of $1.1 million, $3.6 million and $1.5 million during the years ended December 31, 2010, December 31, 2009 and December 31, 2008, respectively. At December 31, 2010, the net present value of the remaining termination payments of $11.1 million was included in our consolidated balance sheets, $7.7 million of which was included in accrued expenses and $3.4 million of which was included in other non-current liabilities. At December 31, 2009, the net present value of the remaining termination payments of $11.3 million was included in our consolidated balance sheets, $4.9 million of which was included in accrued expenses and $6.4 million of which was included in other non-current liabilities. |
7. | Term Loan and Revolving Credit Facility |
Amount | ||||
(in thousands) | ||||
Balance at December 31, 2008
|
$ | 592,500 | ||
Scheduled principal payments
|
(5,924 | ) | ||
Repurchases (a)
|
(10,000 | ) | ||
Balance at December 31, 2009
|
576,576 | |||
Prepayment from excess cash flow
|
(20,994 | ) | ||
Repurchases (b)
|
(63,561 | ) | ||
Balance at December 31, 2010
|
$ | 492,021 | ||
(a) | On June 2, 2009, we entered into an amendment (the Amendment) to our Credit Agreement, which permitted us to purchase portions of the outstanding Term Loan on a non-pro rata basis using cash up |
20
to $10.0 million and future cash proceeds from equity issuances and in exchange for equity interests on or prior to June 2, 2010. Any portion of the Term Loan purchased by us was retired pursuant to the Amendment. |
(b) | On January 26, 2010, pursuant to an Exchange Agreement we entered into with PAR Investment Partners, L.P. (PAR), as amended, PAR exchanged $49.6 million aggregate principal amount of the Term Loan for 8,141,402 shares of our common stock. We immediately retired the portion of the Term Loan purchased from PAR in accordance with the Amendment. The fair value of our common shares issued in the exchange was $49.4 million. After taking into account the write-off of unamortized debt issuance costs of $0.4 million and $0.2 million of other miscellaneous fees incurred to purchase this portion of the Term Loan, we recorded a $0.4 million loss on extinguishment of this portion of the Term Loan, which was included in other income in our consolidated statement of operations for the year ended December 31, 2010. Concurrently, pursuant to a Stock Purchase Agreement we entered into with Travelport, Travelport purchased 9,025,271 shares of our common stock for $50.0 million in cash. We incurred $1.1 million of issuance costs associated with these equity investments by PAR and Travelport, which were included in additional paid in capital in our consolidated balance sheet at December 31, 2010. |
21
Year
|
(in thousands) | |||
2011
|
$ | 19,808 | ||
2012
|
| |||
2013
|
| |||
2014
|
472,213 | |||
Total
|
$ | 492,021 | ||
8. | Tax Sharing Liability |
22
Amount | ||||
(in thousands) | ||||
Balance at December 31, 2008
|
$ | 123,798 | ||
Accretion of interest expense(a)
|
13,509 | |||
Cash payments
|
(11,075 | ) | ||
Adjustment due to a reduction in our effective tax rate(b)
|
(106 | ) | ||
Balance at December 31, 2009
|
126,126 | |||
Accretion of interest expense(a)
|
14,117 | |||
Cash payments
|
(18,885 | ) | ||
Balance at December 31, 2010
|
$ | 121,358 | ||
(a) | We accreted interest expense related to the tax sharing liability of $14.1 million, $13.5 million and $15.9 million for the years ended December 31, 2010, December 31, 2009 and December 31, 2008, respectively. |
(b) | This adjustment was recorded to appropriately reflect our liability under the tax sharing agreement following a reduction in our effective tax rate during the year ended December 31, 2008. The reduction in our effective tax rate reduced the estimated remaining payments that may be due to the airlines under the tax sharing agreement. This adjustment was recorded as a reduction to selling, general and administrative expense in our consolidated statements of operations, as this liability represents a commercial liability, not a tax liability. If our effective tax rate changes in the future, we may be required to further adjust our liability under the tax sharing agreement. |
23
Year
|
(in thousands) | |||
2011
|
$ | 21,182 | ||
2012
|
20,375 | |||
2013
|
17,604 | |||
2014
|
18,171 | |||
2015
|
18,729 | |||
Thereafter
|
98,989 | |||
Total
|
$ | 195,050 | ||
9. | Unfavorable Contracts |
24
Amount | ||||
(in thousands) | ||||
Balance at December 31, 2008
|
$ | 16,501 | ||
Amortization (a)
|
(3,300 | ) | ||
Balance at December 31, 2009
|
13,201 | |||
Amortization (a)
|
(9,226 | ) | ||
Impairment (b)
|
6,583 | |||
Balance at December 31, 2010
|
$ | 10,558 | ||
(a) | We recognized net amortization for the unfavorable portion of the Charter Associate Agreements in the amount of $9.2 million ($14.7 million was recorded as an increase to net revenue and $5.5 million was recorded as an increase to marketing expense) for the year ended December 31, 2010 and $3.3 million ($9.3 million was recorded as an increase to net revenue and $6.0 million was recorded as an increase to marketing expense) for each of the years ended December 31, 2009 and December 31, 2008. For the year ended December 31, 2010, the $14.7 million recorded as an increase to net revenue included $5.6 million in accelerated amortization related to the termination of our Charter Associate Agreement with American Airlines (AA) effective December 2010. As a result of this termination, we are no longer required to make rebate payments to AA under this agreement, and therefore, we reduced the unfavorable contract liability by $5.6 million. This reduction was recorded as an increase to net revenue in our consolidated statement of operations. |
(b) | During the year ended December 31, 2010, we recorded non-cash charges of $3.6 million to impair the portion of the asset related to the expected in-kind marketing and promotional support to be received from Northwest Airlines under our Charter Associate Agreement with that airline. As a result of the completion of the operational merger of Northwest Airlines and Delta Airlines into a single operating carrier, Northwest Airlines was no longer obligated to provide us with in-kind marketing and promotional support after June 1, 2010. This impairment charge was included in the impairment of property and equipment and other assets line item in our consolidated statement of operations for the year ended December 31, 2010. |
25
10. | Commitments and Contingencies |
2011 | 2012 | 2013 | 2014 | 2015 | Thereafter | Total | ||||||||||||||||||||||
(in thousands) | ||||||||||||||||||||||||||||
Contract exit costs (a)
|
$ | 7,732 | $ | 2,285 | $ | 1,229 | $ | 647 | $ | 278 | $ | 63 | $ | 12,234 | ||||||||||||||
Operating leases (b)
|
5,692 | 4,565 | 5,135 | 4,601 | 2,490 | 20,104 | 42,587 | |||||||||||||||||||||
Travelport GDS contract (c)
|
41,045 | 20,000 | 20,000 | 20,000 | | | 101,045 | |||||||||||||||||||||
Telecommunications service agreements
|
2,500 | 4,156 | 1,656 | 1,656 | | | 9,968 | |||||||||||||||||||||
Systems infrastructure agreements
|
2,225 | | | | | | 2,225 | |||||||||||||||||||||
Software license agreements
|
202 | | | | | | 202 | |||||||||||||||||||||
Total
|
$ | 59,396 | $ | 31,006 | $ | 28,020 | $ | 26,904 | $ | 2,768 | $ | 20,167 | $ | 168,261 | ||||||||||||||
(a) | Represents costs due to the early termination of an agreement. |
(b) | These operating leases are primarily for facilities and equipment and represent non-cancellable leases. Certain leases contain periodic rent escalation adjustments and renewal options. Our operating leases expire at various dates, with the latest maturing in 2023. For the years ended December 31, 2010, December 31, 2009 and December 31, 2008, we recorded rent expense in the amount of $6.1 million, $6.8 million and $6.4 million, respectively. As a result of various subleasing arrangements that we have entered into, we are expecting approximately $4.1 million in sublease income through 2014. |
(c) | We have an agreement with Travelport to use GDS services provided by both Galileo and Worldspan (the Travelport GDS Service Agreement). The Travelport GDS Service Agreement is structured such that we earn incentive revenue for each segment that is processed through the Worldspan and Galileo GDSs (the Travelport GDSs). This agreement requires that we process a certain minimum number of segments for our domestic brands through the Travelport GDSs each year. Our domestic brands were required to process a total of 33.7 million segments during the year ended December 31, 2010, 16.0 million segments through Worldspan and 17.7 million segments through Galileo. The required number of segments processed annually for Worldspan is fixed at 16.0 million segments, while the required number of segments for Galileo is subject to adjustment based upon the actual segments processed by our domestic brands in the preceding year. We are required to process approximately 16.8 million segments through Galileo during the year ending December 31, 2011. Our failure to process at least 95% of these segments through the Travelport GDSs would result in a shortfall payment of $1.25 per segment below the required minimum. We are not subject to these minimum volume thresholds to the extent that we process all eligible segments through the Travelport GDS. Historically, we have met the minimum segment requirement for our domestic brands. The table above includes shortfall payments required by the agreement if we do not process any segments through Worldspan during the remainder of the contract term and shortfall payments required if we do not process any segments through Galileo during the year ending December 31, 2011. Because the required number of segments for Galileo adjusts based on the actual segments processed in the preceding year, we are unable to predict shortfall payments that may be required beyond 2011. However, we do not expect to make any shortfall payments for our domestic brands in the foreseeable future. |
26
27
28
11. | Income Taxes |
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
(in thousands) | ||||||||||||
U.S.
|
$ | 37,723 | $ | (274,674 | ) | $ | (123,692 | ) | ||||
Non-U.S.
|
(93,579 | ) | (53,048 | ) | (176,825 | ) | ||||||
Loss before income taxes
|
$ | (55,856 | ) | $ | (327,722 | ) | $ | (300,517 | ) | |||
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
(in thousands) | ||||||||||||
Current
|
||||||||||||
U.S. federal and state
|
$ | 93 | $ | 1,404 | $ | 154 | ||||||
Non-U.S.
|
794 | 909 | 1,923 | |||||||||
887 | 2,313 | 2,077 | ||||||||||
Deferred
|
||||||||||||
U.S. federal and state
|
| | 829 | |||||||||
Non-U.S.
|
1,494 | 6,920 | (4,861 | ) | ||||||||
1,494 | 6,920 | (4,032 | ) | |||||||||
Provision (benefit) for income taxes
|
$ | 2,381 | $ | 9,233 | $ | (1,955 | ) | |||||
29
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
Federal statutory rate
|
35.0 | % | 35.0 | % | 35.0 | % | ||||||
State and local income taxes, net of federal benefit
|
(1.0 | ) | (0.2 | ) | 0.1 | |||||||
Taxes on
non-U.S.
operations at differing rates
|
(5.4 | ) | (0.8 | ) | (1.3 | ) | ||||||
Change in valuation allowance
|
(6.0 | ) | (10.5 | ) | (9.0 | ) | ||||||
Goodwill impairment charges
|
(25.9 | ) | (26.6 | ) | (24.8 | ) | ||||||
Reserve for uncertain tax positions
|
(0.1 | ) | (0.1 | ) | 0.1 | |||||||
Other
|
(0.9 | ) | 0.4 | 0.6 | ||||||||
Effective income tax rate
|
(4.3 | )% | (2.8 | )% | 0.7 | % | ||||||
December 31, | ||||||||
2010 | 2009 | |||||||
(in thousands) | ||||||||
Current deferred income tax assets (liabilities):
|
||||||||
Accrued liabilities and deferred income
|
$ | 4,479 | $ | 4,699 | ||||
Provision for bad debts
|
156 | 82 | ||||||
Prepaid expenses
|
(1,470 | ) | (1,846 | ) | ||||
Tax sharing liability
|
7,195 | 6,315 | ||||||
Change in reserve accounts
|
2,808 | 1,780 | ||||||
Other
|
(404 | ) | (404 | ) | ||||
Valuation allowance
|
(12,717 | ) | (10,580 | ) | ||||
Current net deferred income tax assets
|
$ | 47 | $ | 46 | ||||
Non-current deferred income tax assets (liabilities):
|
||||||||
U.S. net operating loss carryforwards
|
$ | 46,041 | $ | 47,381 | ||||
Non-U.S.
net
operating loss carryforwards
|
102,157 | 94,768 | ||||||
Accrued liabilities and deferred income
|
4,038 | 5,972 | ||||||
Depreciation and amortization
|
106,015 | 116,272 | ||||||
Tax sharing liability
|
36,874 | 39,485 | ||||||
Change in reserve accounts
|
2,930 | 3,595 | ||||||
Other
|
9,895 | 21,769 | ||||||
Valuation allowance
|
(299,803 | ) | (319,288 | ) | ||||
Non-current net deferred income tax assets
|
$ | 8,147 | $ | 9,954 | ||||
30
December 31, | ||||||||
2010 | 2009 | |||||||
(in thousands) | ||||||||
Current net deferred income tax assets:
|
||||||||
Deferred income tax asset, current(a)
|
$ | 47 | $ | 46 | ||||
Current net deferred income tax assets
|
$ | 47 | $ | 46 | ||||
Non-current net deferred income tax assets:
|
||||||||
Deferred income tax asset, non-current
|
$ | 8,147 | $ | 9,954 | ||||
Non-current net deferred income tax assets
|
$ | 8,147 | $ | 9,954 | ||||
(a) | The current portion of the deferred income tax asset at December 31, 2010 and December 31, 2009 is included in other current assets in our consolidated balance sheets. |
31
Amount | ||||
(in thousands) | ||||
Balance at December 31, 2008
|
$ | 5,765 | ||
Decrease in unrecognized tax benefits as a result of tax
positions taken during the prior year
|
(970 | ) | ||
Impact of foreign currency translation
|
115 | |||
Balance at December 31, 2009
|
4,910 | |||
Decrease in unrecognized tax benefits as a result of tax
positions taken during the prior year
|
(1,140 | ) | ||
Impact of foreign currency translation
|
26 | |||
Balance at December 31, 2010
|
$ | 3,796 | ||
12. | Equity-Based Compensation |
32
Weighted-Average
|
Aggregate
|
|||||||||||||||
Weighted-Average
|
Remaining
|
Intrinsic
|
||||||||||||||
Exercise Price
|
Contractual Term
|
Value
|
||||||||||||||
Shares | (per share) | (in years) | (in thousands) | |||||||||||||
Outstanding at December 31, 2009
|
4,236,083 | $ | 9.46 | 6.5 | $ | 4,737 | ||||||||||
Granted
|
1,050,000 | $ | 4.88 | 6.5 | ||||||||||||
Granted in connection with stock option exchange(a)
|
433,488 | $ | 5.22 | 6.5 | ||||||||||||
Exercised
|
(11,718 | ) | $ | 6.12 | 4.5 | |||||||||||
Forfeited
|
(708,422 | ) | $ | 12.34 | 5.9 | |||||||||||
Cancelled in connection with stock option exchange(a)
|
(1,260,598 | ) | $ | 15.00 | 6.5 | |||||||||||
Outstanding at December 31, 2010
|
3,738,833 | $ | 5.28 | 5.5 | $ | 2,379 | ||||||||||
Exercisable at December 31, 2010
|
1,627,340 | $ | 5.58 | 5.2 | $ | 839 | ||||||||||
(a) | On May 3, 2010, we commenced an offer to eligible employees to exchange certain out-of-the-money options to purchase our common stock for a lesser number of new stock options with an exercise price equal to the fair market value of our common stock at the completion of the exchange offer. Stock options eligible for the exchange were those with an exercise price per share of $15.00 that were granted at the time of the IPO. The offering period closed on May 28, 2010. On that date, 1,260,598 stock options were tendered and exchanged for 433,488 new stock options with an exercise price of $5.22 per share. No incremental compensation expense was recognized in connection with the exchange because the fair value of the new stock options granted approximated the fair value of the stock options exchanged. The vesting terms and contractual expiration of the new stock options granted in the exchange are the same as those of the old stock options. However, the option holders who elected to participate in the exchange were required to wait until the six-month anniversary of the completion of the exchange before exercising any of their new stock options, including those new stock options that vested during that six-month period. |
33
Years Ended December 31, | ||||||||||||
Assumptions:
|
2010 |
2009
|
2008 | |||||||||
Dividend yield (a)
|
| | | |||||||||
Expected volatility
|
42 | % | 49 | % | 41 | % | ||||||
Expected life (in years)
|
4.69 | 4.58 | 4.76 | |||||||||
Risk-free interest rate
|
2.09 | % | 1.47 | % | 3.62 | % |
(a) | Our dividend yield is estimated to be zero since we did not declare or pay any cash dividends on our common stock during the years ended December 31, 2010, December 31, 2009 or December 31, 2008, and we do not intend to in the foreseeable future. Any future determination to pay dividends will be at the discretion of our board of directors, may require the consent of Travelport and will depend on several factors, including our financial condition, results of operations, capital requirements, restrictions contained in existing and future financing instruments and other factors that our board of directors may deem relevant. |
Weighted-Average
|
||||||||
Grant Date
|
||||||||
Restricted
|
Fair Value
|
|||||||
Stock Units | (per share) | |||||||
Unvested at December 31, 2009
|
5,650,750 | $ | 4.31 | |||||
Granted
|
1,550,000 | $ | 5.01 | |||||
Vested (a)
|
(2,030,192 | ) | $ | 6.92 | ||||
Forfeited
|
(936,968 | ) | $ | 4.09 | ||||
Unvested at December 31, 2010
|
4,233,590 | $ | 3.37 | |||||
(a) | We issued 1,333,624 shares of common stock in connection with the vesting of restricted stock units during the year ended December 31, 2010, which is net of the number of shares retained (but not issued) by us in satisfaction of minimum tax withholding obligations associated with the vesting. |
34
Weighted-Average
|
||||||||
Grant Date
|
||||||||
Fair Value
|
||||||||
Restricted Stock | (per share) | |||||||
Unvested at December 31, 2009
|
2,195 | $ | 8.45 | |||||
Vested (a)
|
(2,195 | ) | $ | 8.45 | ||||
Unvested at December 31, 2010
|
| $ | | |||||
(a) | Includes 716 shares of common stock transferred to us in satisfaction of minimum tax withholding obligations associated with the vesting of restricted stock. These shares are held by us in treasury. |
Weighted-Average
|
||||||||
Performance-Based
|
Grant Date
|
|||||||
Restricted
|
Fair Value
|
|||||||
Stock Units | (per share) | |||||||
Unvested at December 31, 2009 (a)
|
227,679 | $ | 6.28 | |||||
Granted (b)
|
387,000 | $ | 4.90 | |||||
Forfeited
|
(53,571 | ) | $ | 6.28 | ||||
Unvested at December 31, 2010
|
561,108 | $ | 5.33 | |||||
(a) | On June 19, 2008, the Compensation Committee approved a grant of 249,108 PSUs to certain of our executive officers. The PSUs entitled the executives to receive a certain number of shares of our common stock based on the Companys satisfaction of certain financial and strategic performance goals, including net revenue growth, adjusted EBITDA margin improvement and the achievement of specified technology milestones during fiscal years 2008, 2009 and 2010 (the Performance Period). |
35
The performance conditions also provided that if the Companys aggregate adjusted EBITDA during the Performance Period did not equal or exceed a certain threshold, each PSU award would be forfeited. The fair value of each PSU was $6.28. As of December 31, 2010, we expected none of these PSUs to vest. In the first quarter of 2011, upon determination by the Compensation Committee that the performance conditions were not satisfied, these PSUs were forfeited. |
(b) | On June 2, 2010, the Compensation Committee approved a grant of PSUs to certain of our executive officers. The PSUs entitle the executives to receive one share of our common stock for each PSU, subject to the satisfaction of a performance condition. The performance condition required that the Companys adjusted EBITDA for fiscal year 2010 equaled or exceeded a certain threshold, or each PSU would be forfeited. If this performance condition was met, the PSUs would vest annually over a four-year period. The performance condition for these PSUs was met. |
Weighted-Average
|
||||||||
Grant Date
|
||||||||
Deferred
|
Fair Value
|
|||||||
Stock Units | (per share) | |||||||
Outstanding at December 31, 2009
|
692,066 | $ | 4.13 | |||||
Granted
|
272,036 | $ | 5.06 | |||||
Outstanding at December 31, 2010
|
964,102 | $ | 4.39 | |||||
36
13. | Derivative Financial Instruments |
Fixed Interest
|
Variable Interest
|
|||||||
Notional Amount
|
Effective Date | Maturity Date | Rate Paid | Rate Received | ||||
$100.0 million
|
May 30, 2008 | May 31, 2011 | 3.39% | Three-month LIBOR | ||||
$100.0 million
|
January 29, 2010 | January 31, 2012 | 1.15% | One-month LIBOR | ||||
$100.0 million
|
January 29, 2010 | January 31, 2012 | 1.21% | Three-month LIBOR |
Fixed Interest
|
Variable Interest
|
|||||||
Notional Amount
|
Effective Date | Maturity Date | Rate Paid | Rate Received | ||||
$100.0 million
|
July 25, 2007 | December 31, 2008 | 5.21% | Three-month LIBOR | ||||
$200.0 million
|
July 25, 2007 | December 31, 2009 | 5.21% | Three-month LIBOR | ||||
$100.0 million
|
September 30, 2008 | September 30, 2010 | 2.98% | One-month LIBOR |
Fair Value Measurements as of | ||||||||||
Balance Sheet Location
|
December 31, 2010 | December 31, 2009 | ||||||||
(in thousands) | ||||||||||
Liability Derivatives:
|
||||||||||
Interest rate swaps
|
Other current liabilities | $ | 1,286 | $ | 1,899 | |||||
Interest rate swaps
|
Other non-current liabilities | 1,631 | 3,437 |
37
Fair Value Measurements as of | ||||||||||
Balance Sheet Location
|
December 31, 2010 | December 31, 2009 | ||||||||
(in thousands) | ||||||||||
Liability Derivatives:
|
||||||||||
Foreign currency hedges
|
Other current liabilities | $ | 2,227 | $ | 1,208 |
(Loss) Gain in Selling, General &
|
||||||||||||
Administrative Expense | ||||||||||||
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
(in thousands) | ||||||||||||
Foreign currency hedges (a)
|
$ | (1,353 | ) | $ | (6,782 | ) | $ | 14,120 |
(a) | We recorded transaction (losses) gains associated with the re-measurement of our foreign denominated assets and liabilities of $(3.7) million, $3.3 million and $(19.1) million in the years ended December 31, 2010, December 31, 2009 and December 31, 2008, respectively. Transaction (losses) gains were included in selling, general and administrative expense in our consolidated statements of operations. The net impact of transaction (losses) gains associated with the re-measurement of our foreign denominated assets and liabilities and (losses) gains incurred on our foreign currency hedges was a net loss of $(5.1) million, $(3.5) million and $(5.0) million in the years ended December 31, 2010, December 31, 2009 and December 31, 2008, respectively. |
14. | Severance |
38
15. | Employee Benefit Plans |
16. | Net Loss per Share |
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
(in thousands, except share and per share data) | ||||||||||||
Net loss
|
$ | (58,237 | ) | $ | (336,955 | ) | $ | (298,562 | ) | |||
Net loss per share:
|
||||||||||||
Weighted-average shares outstanding for basic and diluted net
loss per share (a)
|
101,269,274 | 84,073,593 | 83,342,333 | |||||||||
Basic and Diluted
|
$ | (0.58 | ) | $ | (4.01 | ) | $ | (3.58 | ) | |||
(a) | Stock options, restricted stock, restricted stock units and PSUs are not included in the calculation of diluted net loss per share for the years ended December 31, 2010, December 31, 2009 and December 31, 2008 because we had a net loss for each year. Accordingly, the inclusion of these equity awards would have had an antidilutive effect on diluted net loss per share. |
39
Years Ended December 31, | ||||||||||||
Antidilutive equity awards
|
2010 | 2009 | 2008 | |||||||||
Stock options
|
3,738,833 | 4,236,083 | 4,216,805 | |||||||||
Restricted stock units
|
4,233,590 | 5,650,750 | 2,724,356 | |||||||||
Restricted stock
|
| 2,195 | 18,661 | |||||||||
Performance-based restricted stock units
|
561,108 | 227,679 | 249,108 | |||||||||
Total
|
8,533,531 | 10,116,707 | 7,208,930 | |||||||||
17. | Related Party Transactions |
December 31, 2010 | December 31, 2009 | |||||||
(in thousands) | ||||||||
Due from Travelport, net
|
$ | 15,449 | $ | 3,188 |
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
(in thousands) | ||||||||||||
Net revenue (a)
|
$ | 117,619 | $ | 122,032 | $ | 149,171 | ||||||
Cost of revenue
|
477 | 592 | 1 | |||||||||
Selling, general and administrative expense
|
486 | 215 | 2,997 | |||||||||
Interest expense
|
4,016 | 3,779 | 2,545 |
(a) | These amounts include net revenue related to our GDS services agreement and bookings sourced through Donvand Limited and OctopusTravel Group Limited (doing business as Gullivers Travel Associates, GTA) for the periods presented. |
40
41
42
December 31, 2010 | December 31, 2009 | |||||||
(in thousands) | ||||||||
Accounts receivable
|
$ | 235 | $ | 62 | ||||
Prepaid expenses
|
| 78 | ||||||
Accounts payable
|
6,288 | 5,432 | ||||||
Accrued expenses
|
1,965 | 2,461 | ||||||
Accrued merchant payable
|
14,135 | 6,131 | ||||||
Other current liabilities
|
229 | | ||||||
Other non-current liabilities
|
514 | |
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
(in thousands) | ||||||||||||
Net revenue
|
$ | 22,098 | $ | 16,793 | $ | 14,131 | ||||||
Cost of revenue (a)
|
30,166 | 26,429 | 29,715 | |||||||||
Selling, general and administrative expense (b)
|
2,913 | 3,136 | 5,492 | |||||||||
Marketing expense
|
54 | | 461 |
43
(a) | The amounts shown represent call center and telesales costs incurred under our outsourcing agreements with Intelenet. | |
(b) | Of the amounts shown for the years ended December 31, 2010, December 31, 2009 and December 31, 2008, $2.5 million, $2.6 million and $4.8 million, respectively, represent costs incurred under our outsourcing agreements with Intelenet for back office administrative, information technology and financial services. |
18. | Fair Value Measurements |
(a) | The money market funds as of December 31, 2009 are included in the table above for comparative purposes. |
44
Fair Value Measurements Using | ||||||||||||||||||||
Significant
|
||||||||||||||||||||
Quoted
|
other
|
Significant
|
||||||||||||||||||
prices in
|
observable
|
unobservable
|
||||||||||||||||||
Balance at
|
active markets
|
inputs
|
inputs
|
Total
|
||||||||||||||||
October 1, 2010 | (Level 1) | (Level 2) | (Level 3) | (Losses) | ||||||||||||||||
(in thousands) | ||||||||||||||||||||
Goodwill
|
$ | 29,118 | $ | | $ | | $ | 29,118 | $ | (41,753 | ) | |||||||||
Trademarks and trade names
|
||||||||||||||||||||
HotelClub
|
$ | 4,658 | $ | | $ | | $ | 4,658 | $ | (17,752 | ) | |||||||||
CheapTickets
|
4,354 | | | 4,354 | (10,646 | ) | ||||||||||||||
Total trademarks and trade names
|
$ | 9,012 | $ | | $ | | $ | 9,012 | $ | (28,398 | ) | |||||||||
Capitalized software
|
$ | 1,865 | $ | | $ | | $ | 1,865 | $ | (4,516 | ) | |||||||||
Fair Value Measurements Using | ||||||||||||||||||||
Significant
|
||||||||||||||||||||
Quoted
|
other
|
Significant
|
||||||||||||||||||
prices in
|
observable
|
unobservable
|
||||||||||||||||||
Balance at
|
active markets
|
inputs
|
inputs
|
Total
|
||||||||||||||||
March 31, 2009 | (Level 1) | (Level 2) | (Level 3) | (Losses) | ||||||||||||||||
(in thousands) | ||||||||||||||||||||
Goodwill
|
$ | 697,900 | $ | | $ | | $ | 697,900 | $ | (249,446 | ) | |||||||||
Trademarks and trade names
|
$ | 149,793 | $ | | $ | | $ | 149,793 | $ | (82,081 | ) | |||||||||
45
19. | Segment Information |
Years Ended December 31, | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
(in thousands) | ||||||||||||
Net revenue
|
||||||||||||
United States
|
$ | 579,386 | $ | 584,834 | $ | 686,321 | ||||||
All other countries
|
178,101 | 152,814 | 183,955 | |||||||||
Total
|
$ | 757,487 | $ | 737,648 | $ | 870,276 | ||||||
December 31, 2010 | December 31, 2009 | |||||||
(in thousands) | ||||||||
Long-lived assets
|
||||||||
United States
|
$ | 149,559 | $ | 167,909 | ||||
All other countries
|
8,504 | 13,053 | ||||||
Total
|
$ | 158,063 | $ | 180,962 | ||||
20. | Quarterly Financial Data (Unaudited) |
Three Months Ended | ||||||||||||||||
December 31,
|
September 30,
|
June 30,
|
March 31,
|
|||||||||||||
2010(a) | 2010 | 2010 | 2010 | |||||||||||||
(in thousands, except per share data) | ||||||||||||||||
Net revenue
|
$ | 182,364 | $ | 194,479 | $ | 193,491 | $ | 187,153 | ||||||||
Cost and expenses
|
250,037 | 166,918 | 171,949 | 180,387 | ||||||||||||
Operating (loss) income
|
(67,673 | ) | 27,561 | 21,542 | 6,766 | |||||||||||
Net (loss) income
|
(78,041 | ) | 15,332 | 9,733 | (5,261 | ) | ||||||||||
Basic net (loss) income per share
|
(0.76 | ) | 0.15 | 0.10 | (0.05 | ) | ||||||||||
Diluted net (loss) income per share
|
(0.76 | ) | 0.15 | 0.09 | (0.05 | ) |
46
Three Months Ended | ||||||||||||||||
December 31,
|
September 30,
|
June 30,
|
March 31,
|
|||||||||||||
2009 | 2009 | 2009 | 2009(a) | |||||||||||||
(in thousands, except per share data) | ||||||||||||||||
Net revenue
|
$ | 174,693 | $ | 186,603 | $ | 187,959 | $ | 188,393 | ||||||||
Cost and expenses
|
168,390 | 164,368 | 165,437 | 511,968 | ||||||||||||
Operating income (loss)
|
6,303 | 22,235 | 22,522 | (323,575 | ) | |||||||||||
Net (loss) income
|
(18,055 | ) | 6,980 | 10,276 | (336,156 | ) | ||||||||||
Basic and diluted net (loss) income per share
|
(0.21 | ) | 0.08 | 0.12 | (4.02 | ) |
(a) | During the three months ended December 31, 2010 and the three months ended March 31, 2009, we recorded non-cash impairment charges related to goodwill and intangible assets in the amount of $70.2 million and $331.5 million, respectively (see Note 3 Impairment of Goodwill and Intangible Assets). |
21. | Subsequent Events |
47
48
Balance at
|
Charged to
|
|||||||||||||||||||
Beginning of
|
Costs and
|
Charged to
|
Balance at
|
|||||||||||||||||
Period | Expenses | Other Accounts | Deductions | End of Period | ||||||||||||||||
(in thousands) | ||||||||||||||||||||
Tax Valuation Allowance
|
||||||||||||||||||||
Year Ended December 31, 2010
|
$ | 329,868 | $ | 3,344 | $ | (20,692 | )(a) | $ | | $ | 312,520 | |||||||||
Year Ended December 31, 2009
|
319,512 | 34,560 | (19,398 | )(a) | (4,806 | )(b) | 329,868 | |||||||||||||
Year Ended December 31, 2008
|
329,601 | 26,636 | (36,725 | )(a) | | 319,512 |
(a) | Represents foreign currency translation adjustments to the valuation allowance. In addition, the amounts for the years ended December 31, 2010 and December 31, 2009 include reclassification adjustments between our gross deferred tax assets and the corresponding valuation allowance. The amount for the year ended December 31, 2010 also includes the effects of a U.K. tax rate change. | |
(b) | Represents the surrender of $17.2 million of net operating losses generated in the year ended December 31, 2007 to Donvand Limited, a subsidiary of Travelport, as permitted under the U.K. group relief provisions. A full valuation allowance had previously been established for these net operating losses. As a result, upon surrender, we reduced our gross deferred tax assets and the corresponding valuation allowance by $4.8 million. |
49