EXHIBIT 1.1
SABRE HOLDINGS CORPORATION
CLASS A COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
April 4, 2002
Xxxxxxx, Xxxxx & Co.,
Bear Xxxxxxx & Co. Inc.,
Banc of America Securities LLC,
Credit Suisse First Boston Corporation,
X.X. Xxxxxx Securities Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Sabre Holdings Corporation (the "Company"), a Delaware corporation,
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 8,200,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 1,230,000 additional shares (the "Optional Shares") of Class
A Common Stock, par value $.01 per share ("Stock"), of the Company (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof being collectively called the "Shares").
1. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-3 (File No.
333-32106) (the "Initial Registration Statement") in respect
of the Stock has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to you and,
excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the
prospectus included therein, to you for each of the other
Underwriters, have been declared effective by the Commission
in such form; and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective
amendment thereto or the registration statement on Form S-3
(File No. 333-84946) increasing the size of the offering (the
"Rule 462(b) Registration Statement") has been issued and no
proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became
effective, each as amended at the time such part of the
Initial Registration Statement became effective, are
hereinafter collectively called the "Registration Statement";
the prospectus relating to the Stock, in the form in which it
has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, as
amended or supplemented in relation to the Shares in the form
in which it is filed with the Commission pursuant to Rule
424(b) under the Act, including any documents incorporated by
reference therein as of the date of such filing, is
hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment
or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in
the Registration Statement;
(ii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make
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the statements therein, in light of the circumstances under
which they are made, not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not
misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through Xxxxxxx,
Sachs & Co. expressly for use therein;
(iii) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances
under which they are made) not misleading; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use in the Prospectus as amended or
supplemented; and there are no statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as
required;
(iv) The consolidated financial statements (including
the related notes and supporting schedules) of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus as amended or
supplemented present fairly the consolidated financial
condition, results of operations and cash flows of the
entities purported to be shown thereby as of the dates and for
the periods indicated and have been prepared in accordance
with generally accepted accounting principles, applied on a
consistent basis through the periods indicated;
(v) Neither the Company nor any subsidiary of the
Company that is a "significant subsidiary" within the meaning
of Rule 1-02(w) of Regulation S-X of the Exchange Act has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any loss or interference with the business of the
Company and its subsidiaries taken as a whole from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or
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from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the
Prospectus, which, in either case, would result in a Material
Adverse Effect (as defined below); and, since the respective
dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated
therein, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect");
(vi) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a Material Adverse Effect on
the Company and its subsidiaries taken as a whole;
(vii) Each subsidiary of the Company that is a
"significant subsidiary" within the meaning of Rule 1-02(w) of
Regulation S-X of the Exchange Act has been duly formed, is
validly existing in good standing under the laws of the
jurisdiction of its organization, has the requisite power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect on the Company and
its subsidiaries taken as a whole; all of the issued equity
interests of each such subsidiary of the Company have been
duly and validly authorized and issued and, as to shares of
capital stock of any corporation constituting a subsidiary,
are fully paid and non-assessable and in each case such equity
interests (except for directors' qualifying shares as
disclosed in the Registration Statement or the Prospectus) are
owned by the Company directly or indirectly through another
such subsidiary, free and clear of all liens, encumbrances,
equities or claims;
(viii) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued shares
of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description of the Stock contained in the
Prospectus;
(ix) The Shares have been duly and validly authorized
by the Company and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and will conform to the
description thereof contained in the Prospectus as amended or
supplemented;
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(x) The issuance, sale and delivery of the Shares by
the Company, the execution and delivery of this Agreement by
the Company, the consummation by the Company of the
transactions herein contemplated, and the compliance by the
Company with the terms of this Agreement do not and will not
violate, conflict with, or result in a breach of, any of the
terms or provisions of, or constitute a default under, (A) the
Certificate of Incorporation or By-Laws of the Company or any
of its subsidiaries, (B) any indenture, mortgage, or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of their respective
properties are subject, or (C) any applicable law, rule,
regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties; and no
consent, approval, authorization, registration, qualification
or order of any government, governmental instrumentality or
court, domestic or foreign, is required for valid
authorization, issuance, sale and delivery of the Shares, the
valid authorization, execution, delivery and performance of
this Agreement or the consummation by the Company of the
transactions contemplated by this Agreement, except such as
are required under the Act, the securities or Blue Sky laws of
the various states in the United States or the securities or
similar laws of any foreign jurisdiction;
(xi) This Agreement has been duly authorized,
executed and delivered by the Company;
(xii) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation or By-laws
or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except for
such violations and defaults as would not individually or in
the aggregate have a Material Adverse Effect on the Company
and its subsidiaries taken as a whole;
(xiii) The Company and its subsidiaries have good and
marketable title in fee simple to all material real property
and good title to all material personal property owned by
them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed
to be made of such property by the Company and its
subsidiaries; and any material real property and material
personal property held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material
and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company and
its subsidiaries;
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(xiv) The Company and its subsidiaries own, or
possess adequate rights to use, all patents, trademarks,
service marks, trade names, copyrights and licenses (including
the names, "Sabre", "Travelocity", "Xxxxxxxxxxx.xxx",
"TurboSabre", "Direct Connect", "eVoya", "GetThere", "Basic
Booking Request", and "eMergo") necessary to conduct their
businesses currently and as proposed in the Prospectus to be
conducted, and neither the Company nor its subsidiaries has
received any notice of infringement of or conflict with (or
knows of any such infringement or conflict with) asserted
rights of others with respect to such patents, trademarks,
service marks, tradenames, copyrights or licenses, except for
such failures to own or possess and such infringements and
conflicts as would not individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries
taken as a whole or materially affect the ability of the
Company and its subsidiaries to conduct their businesses
currently and as proposed in the Prospectus as to be
conducted;
(xv) Except as described or incorporated by reference
in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject which, if
determined adversely to the Company or any subsidiary would
have a Material Adverse Effect; and to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(xvi) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes;
(xvii) The Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be
an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xviii) The Company and its subsidiaries (A) are in
compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
("Environmental Laws"), (B) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(C) are in compliance with all terms and conditions of any
such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a
Material Adverse Effect;
(xix) There are no costs or liabilities associated
with the Company's and its subsdiaries' compliance with
Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any
permit, license or
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approval, any related constraints on operating activities and
any potential liabilities to third parties) which would,
singly or in the aggregate, have a Material Adverse Effect;
(xx) The statements set forth in the Prospectus under
the caption "Description of Class A Common Stock", insofar as
they purport to constitute a summary of the terms of the
Stock, and under the captions "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein,
fairly and accurately summarize and describe the matters
referred to therein;
(xxi) The Company has filed with the Commission a
Tender Offer Statement on Schedule TO ("Schedule TO") pursuant
to Rule 14d-1 and Rule 13e-3 promulgated by the Commission
under the Exchange Act, with respect to the Company's offer to
purchase any and all of the outstanding shares of common stock
of Xxxxxxxxxxx.xxx Inc. (the "Target") which the Company does
not currently own, a copy of which Schedule TO (including the
documents required by Item 12 thereof to be filed as exhibits
thereto) has heretofore been delivered to you; (ii) the
Schedule TO and other tender offer materials, as so filed,
conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations thereunder, and
none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not
misleading; (iii) any amendment or supplement to the Schedule
TO or any further tender offer materials filed, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and
the rules and regulations thereunder and will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iv) except as
set forth in the Offer to Purchase filed with the Schedule TO
(the "Offer to Purchase"), the Company does not have any
knowledge of any material fact or information concerning the
Target or any of its subsidiaries, or the operations, assets,
condition, financial or otherwise, or prospects of the Target
or any of its subsidiaries, which under applicable law is
required to be disclosed in the Offer to Purchase and which
has not been, or is not being, or will not be, so disclosed in
the Offer to Purchase;
(xxii) The Shares have been approved for listing on
the New York Stock Exchange, subject to official notice of
issuance; and
(xxiii) Ernst & Young LLP, who reported on the annual
consolidated financial statements of the Company incorporated
by reference in the Registration Statement and the Prospectus,
are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder.
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2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price per share of $44.50, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of Optional Shares
that all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,230,000 Optional Shares, at the purchase price per share
set forth in clause (a) above, for the sole purpose of covering sales of shares
in excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless you and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented.
4. (a) The Shares to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request in writing upon at least two Business
Days' prior notice to the Company, shall be delivered by or on behalf of the
Company to Xxxxxxx, Sachs & Co., for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) to the account specified by the Company to
Xxxxxxx, Xxxxx & Co. at least two Business Days in advance. The Company will
cause the certificates representing the Shares to be made available for
checking and packaging at least one Business Day prior to the Time of Delivery
(as defined below) with respect thereto at the office of Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The time
and date of such delivery and payment shall be, with respect to the Firm
Shares, 9:30 a.m., New York City time, on April 10, 2002, or such other time
and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York City time, on the
date specified by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx,
Xxxxx & Co. of the Underwriters' election to purchase such Optional Shares, but
in no event earlier than two nor later than ten Business Days after the giving
of such notice, or such other time and date as Xxxxxxx, Sachs & Co. and the
Company may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "First Time of Delivery", such time and date for
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delivery of the Optional Shares, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and date for delivery
is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 6 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 6(h) hereof, will be delivered at the offices
of Xxxxx Xxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
such Time of Delivery. A meeting will be held at the Closing Location at 1:00
p.m., Dallas, Texas time, on the Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law
or executive order to close.
5. (a) The Company agrees with the Underwriter:
(i) To prepare the Prospectus as amended and
supplemented in relation to the Shares in a form approved by
you and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on
the second business day following the execution and delivery
of this Agreement or, if applicable, such earlier time as may
be required by Rule 424(b); to make no further amendment or
any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of this Agreement and
prior to any Time of Delivery for such Shares which shall be
disapproved by you promptly after reasonable notice thereof;
to advise you promptly of any such amendment or supplement
after any Time of Delivery and furnish you with written and
electronic copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with
the offering or sale of the Shares, and during such same
period to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares,
of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the
use of any prospectus relating to the Shares or suspending any
such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
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(ii) Promptly from time to time to take such action
as you may reasonably request to qualify the Shares for
offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws
so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to
complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the
Business Day next succeeding the date of this Agreement and
from time to time, to furnish the Underwriters with written
and electronic copies of the Prospectus as amended or
supplemented in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale
of the Shares and if at such time any event shall have
occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act or the Exchange Act, to notify you and upon your
request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(iv) To make generally available to its security
holders as soon as practicable, but in any event not later
than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the
Company, Rule 158);
(v) During the period beginning from the date
hereof and continuing to and including the date 90 days after
the date hereof, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, Stock,
any securities of the Company that are substantially similar
to the Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to
employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement),
without prior written consent of Xxxxxxx, Xxxxx & Co.;
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(vi) To use the net proceeds received by it from
the sale of the Shares pursuant to this Agreement in the
manner specified in the Prospectus under the caption "Use of
Proceeds";
(vii) To use its best efforts to list, subject to
notice of issuance, the Shares on the New York Stock Exchange;
(viii) If the Company elects to rely upon Rule
462(b), the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b)
by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time either pay to the
Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act; and
(ix) Upon request of any Underwriter, to furnish,
or cause to be furnished, to such Underwriter an electronic
version of the Company's corporate logo and its trademarks and
servicemarks included in the Prospectus, or any amendments or
supplements thereto, for inclusion in electronic copies of
such documents appearing on the website, if any, operated by
such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided, however,
that the License shall be used solely for the purpose
described above, is granted without any fee and may not be
assigned or transferred.
6. The obligations of the Underwriters hereunder, as to the
Shares to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties of the
Company herein are, at and as of such Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the Shares shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance
with Section 5(a)(i) hereof; if the Company has elected to rely upon
Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement; at such Time of Delivery no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters,
shall have furnished to you such opinion, dated such Time of Delivery,
with respect to the validity of the Shares being delivered at such
Time of Delivery, the Registration Statement, the Prospectus and such
other related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
11
(c) Xxxxx X. Xxxxxxxx, Executive Vice President and
General Counsel of the Company, shall have furnished to you an
opinion, dated such Time of Delivery, in form and substance
satisfactory to you and your counsel, to the effect that:
(i) the Company has been duly incorporated, is
validly existing corporation in good standing under the laws
of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its
business as described in the Prospectus as amended or
supplemented and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
Material Adverse Effect;
(ii) each subsidiary of the Company that is a
"significant subsidiary" within the meaning of Rule 1-02(w) of
Regulation S-X of the Exchange Act is validly existing in good
standing under the laws of the jurisdiction of its
organization, has the requisite power and authority to own its
property and to conduct its business as described in the
Prospectus as amended or supplemented and is duly qualified to
transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good
standing would not have a Material Adverse Effect, and each of
GetThere Inc., Sabre Inc., Travelocity Holdings, Inc.,
Xxxxxxxxxxx.xxx Inc., Xxxxxxxxxxx.xxx LP, Sabre International
Inc., and Sabre International Holdings, Inc. has been duly
formed;
(iii) the Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented, and
all of the shares of issued and outstanding Stock have been
duly authorized and validly issued and are fully paid and
non-assessable;
(iv) the Shares have been duly authorized by the
Company and, when issued as contemplated by this Agreement,
will be validly issued, fully paid and non-assessable; and all
corporate action required to be taken for authorization, issue
and delivery of the Shares has been validly taken;
(v) the issuance, sale and delivery of the Shares
being delivered at such Time of Delivery by the Company, the
execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions herein
contemplated, and the compliance by the Company with the terms
of this Agreement do not and will not (i) conflict with or
result in any violation of any provision of applicable law or
the Certificate of Incorporation or By-laws of the Company or,
(ii) to the best of such counsel's knowledge, conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company is a party or by
which it or any of its properties may be bound, or, (iii) to
the best of such
12
counsel's knowledge, contravene any judgment, order or decree
of any court or governmental body or agency of the United
States of America, the State of Texas or the State of
Delaware (pursuant to the Delaware General Corporation Law
("DGCL")) having jurisdiction over the Company or any
subsidiary, or (iv) require any consent, approval,
authorization or order of, or qualification or registration
with any court or governmental body or agency of the United
States of America, the State of Texas or the State of
Delaware (pursuant to the DGCL), for the issuance, sale and
delivery of the Shares or the consummation by the Company of
the transactions contemplated by this Agreement except such
as have been obtained under the Act or such as may be
required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares;
(vi) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject which, if determined adversely to the Company or any
subsidiary would have a Material Adverse Effect; and to the
best of such counel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others; and
(vii) neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation or By-laws
or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except for
such violations and defaults as would not individually or in
the aggregate have a Material Adverse Effect on the Company
and its subsidiaries taken as a whole.
(d) Xxxxxx Xxxx & Xxxxxxxx LLP, special counsel for the
Company, shall have furnished to you an opinion, dated such Time of
Delivery, in form and substance satisfactory to you and your counsel,
to the effect that:
(i) the Registration Statement was declared
effective under the Act as of April 18, 2000 and the 462(b)
Registration Statement became effective upon filing with the
Commission on March 26, 2002; any required filing of the
Prospectus as amended or supplemented pursuant to Rule 424(b)
of the Securities Act has been made within the time period
prescribed by the applicable rules and regulations; and, to
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission;
(ii) the Shares have been duly authorized by the
Company and, when issued as contemplated by this Agreement,
will be validly issued, fully paid and non-assessable; and all
corporate action required to be taken for authorization, issue
and
13
delivery of the Shares has been validly taken; and the Shares
conform to the description thereof in the Prospectus as
amended or supplemented;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iv) the issuance, sale and delivery of the Shares
being delivered at such Time of Delivery by the Company, the
execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions herein
contemplated, and the compliance by the Company with the terms
of this Agreement do not and will not (i) conflict with or
result in any violation of any provision of applicable law or
the Certificate of Incorporation or By-laws of the Company or,
(ii) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument filed (including by
incorporation by reference) as an exhibit to the Registration
Statement or to its Annual Report on Form 10-K for the year
ended December 31, 2001, or, to the best of such counsel's
knowledge, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument entered into after
December 31, 2001 and prior to the date of the giving of this
opinion, that would have been filed or required to be filed as
an exhibit to such Form 10-K had it been executed on or before
December 31, 2001 or, (iii) to the best of such counsel's
knowledge, contravene any judgment, order or decree of any
court or governmental body or agency of the United States of
America, the State of New York, the State of Texas or the
State of Delaware (pursuant to DGCL) having jurisdiction over
the Company or any subsidiary, or (iv) require any consent,
approval, authorization or order of, or qualification or
registration with any court or governmental body or agency of
the United States of America, the State of Texas, the State of
New York or the State of Delaware (pursuant to the DGCL), for
the issuance, sale and delivery of the Shares or the
consummation by the Company of the transactions contemplated
by this Agreement except such as have been obtained under the
Act or such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and
sale of the Shares;
(v) the statements in the Prospectus as amended or
supplemented in relation to the Shares, under the captions
"Description of Class A Common Stock," "Underwriting" and
"Plan of Distribution," to the extent that they constitute
matters of law, summaries of legal matters or documents or
legal conclusions, have been reviewed by such counsel and
fairly and accurately summarize and describe in all materal
respects the matters referred to therein;
(vi) the Company is not and, after giving effect to
the offering and sale of the Shares, will not be an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended; and
14
(vii) (A) Each document incorporated by reference in
the Prospectus as amended or supplemented (except for
accounting and financial data (and related notes), statistical
data, and the financial statements and schedules included or
incorporated by reference therein as to which such counsel
need not express any opinion), when it became effective or was
filed with the Commission, as the case may be, appear on their
face to comply as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the applicable rules and regulations of the Commission
thereunder, and (B) that the Registration Statement and
Prospectus and any further amendments and supplements thereto
made by the Company prior to such Time of Delivery (except for
accounting and financial data (and related notes), statistical
data, and the financial statements and schedules included or
incorporated by reference therein as to which such counsel
need not express any opinion) appear on their face to comply
as to form in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder;
provided, however, that for purposes of the opinion expressed
in this subparagraph (vii), such counsel need not express an
opinion as to whether the consent of Xxxxxxx, Sachs & Co. is
required to be filed as an exhibit to the Registration
Statement.
In rendering such opinion, such counsel may state that its
opinion is limited to the Federal laws of the United States of America,
the laws of the states of Texas and New York and the General
Corporation Law of the State of Delaware. Such counsel shall also have
furnished to the Underwriters a written statement, addressed to the
Underwriters and dated each Time of Delivery, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters, to
the effect that (x) such counsel has acted as special counsel to the
Company in connection with the preparation of the Prospectus and the
Rule 462(b) Registration Statement and during the course of the
preparation of the Prospectus, the Registration Statement and the Rule
462(b) Registration Statement, such counsel participated in conferences
with representatives of the Company, the Company's corporate counsel,
and its accountants and the representatives of the Underwriters and at
which conferences the contents of the Prospectus, the Registration
Statement and the Rule 462(b) Registration Statement and related
matters were discussed, and (y) based on the foregoing, no facts have
come to the attention of such counsel which lead it to believe that:
(A) the Registration Statement and the Rule 462(b) Registration
Statement (except for accounting and financial data (and related
notes), statistical data, and the financial statements and schedules
included or incorporated by reference therein as to which such counsel
need not express any belief) when they became effective contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (B) the Prospectus and any further amendments
and supplements thereto made by the Company prior to such Time of
Delivery (except for accounting and financial data (and related notes),
statistical data, and the financial statements and schedules included
or incorporated by reference therein as to which such counsel need not
express any belief) as of its date and as of the date such opinion is
delivered contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (C)
any document incorporated by reference in the Prospectus as amended or
supplemented
15
(except for accounting and financial data (and related notes),
statistical data, and the financial statements and schedules
included or incorporated by reference therein as to which such counsel
need not express any belief) when it was filed contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The foregoing opinions and statements may be qualified
by a statement to the effect that such counsel has not independently
verified the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Rule 462(b) Registration
Statement, the Prospectus or any document incorporated by reference
therein, and such counsel is not passing upon and such counsel does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement, the Rule 462(b)
Registration Statement, the Prospectus or any document incorporated by
reference therein other than as set forth in (v) above.
(e) Ernst & Young LLP shall have furnished to you a letter or
letters, dated the date of this Agreement and also the date of each
Time of Delivery, in form and substance satisfactory to you, to the
effect set forth in Annex I hereto, with respect to each of the Company
and the Target;
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented prior to the date of this Agreement any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), and (ii) since the respective dates as of which information
is given in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) there shall not have
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), the
effect of which, in any such case described in clause (i) or (ii), is
in the judgment of the Underwriters so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such Time of Delivery on
the terms and in the manner contemplated in the Prospectus as amended
or supplemented relating to the Shares;
(g) On or after the date of this Agreement (i) no downgrading
shall have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible
16
negative implications, its rating of any of the Company's debt
securities or preferred stock;
(h) On or after the date of this Agreement there shall not
have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal,
State of New York or State of Texas authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the occurrence of
any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of
any such event specified in clause (iv) or (v) in the judgment of the
Underwriters makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement);
(i) The Company shall have complied with the provisions of
Section 5(a)(iii) hereof with respect to the furnishing of
prospectuses;
(j) The Company shall have furnished or caused to be furnished
to you at each Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (f) of this Section and as to such
other matters as you may reasonably request;
(k) The Underwriters shall have received at or prior to the
First Time of Delivery a written undertaking, in form and substance
satisfactory to you, from each of the executive officers and directors
of the Company listed on Schedule II hereto, not to make any sale or
other disposition of Stock or any securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock, for a period of 90 days after
the date hereof; and
(l) The Shares to be sold at each Time of Delivery shall have
been duly authorized for listing by the New York Stock Exchange,
subject only to official notice of issuance.
7. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and
17
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses
in connection with the qualification of the Shares for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
survey(s); (iv) any filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, any
required reviews by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Shares; (v) the cost of preparing certificates
for the Shares; (vi) the cost and charges of any transfer agent or registrar
or dividend disbursing agent; and (vii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of the Shares through Xxxxxxx, Xxxxx & Co. expressly for use in the Prospectus
as amended or supplemented relating to such Shares.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Shares, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged
18
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include any statement as
to or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Shares on the other from the offering of the Shares to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Shares on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations.
19
The relative benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received
by such Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (d) were
determined by PRO RATA allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the applicable Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other patties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies you that it
has so arranged for the purchase of such Shares, you or the Company shall have
the right to postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your
reasonable opinion may thereby be made necessary. The term "Underwriter"
20
as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to
this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-tenth of the aggregate number of all the
Shares to be purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-tenth of the aggregate number of all the Shares
to be purchased at such Time of Delivery, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 7 hereof and the
indemnity and contribution agreements in Section 8 hereof, but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 7 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 7
and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Sachs & Co. on behalf of you as the
representatives.
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All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriter, the Company and, to the extent provided in Sections
8 and 9 hereof, the officers and directors of the Company and each person who
controls the Company or the Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Underwriters imposing any limitation of any kind.
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If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
SABRE HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Corporate Secretary
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
Bear, Xxxxxxx & Co. Inc.,
Banc of America Securities LLC,
Credit Suisse First Boston Corporation,
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxxx, Sachs & Co.
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
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