1
EXHIBIT 4.5
------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of June 26, 2000
by and between
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
and
WORLDSPAN, L.P.
------------------------------------
2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of June 26, 2000, by and between ▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a
Delaware corporation (the "Company"), and WORLDSPAN, L.P., a Delaware limited
partnership ("Worldspan").
WHEREAS, this Agreement is made pursuant to the Master Transaction
Agreement dated June __, 2000 (the "Master Transaction Agreement"), by and
between the Company and Worldspan;
WHEREAS, in order to induce Worldspan to enter into the transactions
described in the Master Transaction Agreement, the Company has agreed to
provide Worldspan with the registration rights set forth herein.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
1.1 "Common Stock" shall mean the Common Stock, par value
$.04 per share, of the Company.
1.2 "Company" shall have the meaning set forth in the
Preamble and also shall include the Company's successors.
1.3 "Current Market Price" of each share of Common Stock
shall mean (i) the average of the closing prices of the Common Stock on
the American Stock Exchange (or any other stock exchange or quotation
system on which the Common Stock is then traded) for the five-day
period immediately preceding the day in question or, (ii) if the Common
Stock is not traded on a stock exchange or quotation system, the fair
market value as determined in good faith by the Board of Directors of
the Company.
1.4 "Demand Prospectus" shall mean the prospectus
included in the Demand Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto,
including any supplement relating to the terms of the offering of any
portion of the Registrable Securities covered by the Demand
Registration Statement, and in each case including all material
incorporated by reference therein.
1.5 "Demand Registration" shall mean a registration
required to be effected pursuant to Section 5 hereof.
1.6 "Demand Registration Expenses" shall mean any and all
expenses incurred by the Company in connection with Demand
Registrations, including, without limitation: (i) all SEC, stock
exchange and National Association of Securities Dealers, Inc.
3
("NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or "blue
sky" laws (including reasonable fees and disbursements of counsel in
connection with qualification of any of the Registrable Securities
under any state securities or blue sky laws and the preparation of a
blue sky memorandum) and compliance with the rules of the NASD, (iii)
all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing the Demand Registration
Statement, any Demand Prospectus, certificates and other documents
relating to the performance of and compliance with this Agreement, (iv)
all fees and expenses incurred in connection with the listing, if any,
of any of the Registrable Securities on any securities exchange or
exchanges, and (v) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance. Demand
Registration Expenses shall specifically exclude all underwriting
discounts and selling commissions and transfer taxes applicable to the
sale of Registrable Securities.
1.7 "Demand Registration Request" shall have the meaning
set forth in Section 5(a) hereof.
1.8 "Demand Registrations" shall have the meaning set
forth in Section 5(a) hereof.
1.9 "Demand Registration Statement" shall have the
meaning set forth in Section 6(a) hereof.
1.10 "Effective Time" shall mean June 26, 2000.
1.11 "Entity" shall mean any general partnership, limited
partnership, corporation, limited liability company, joint venture,
trust, business trust, cooperative or association.
1.12 "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
1.13 "Maximum Number" shall have the meaning set forth in
Section 4(b) hereof.
1.14 "Person" shall mean any individual or Entity.
1.15 "Piggyback Registration" shall have the meaning set
forth in Section 4(a) hereof.
1.16 "Piggyback Registration Expenses" shall mean any and
all expenses incurred by the Company in connection with Piggyback
Registrations, including, without limitation: (i) all SEC, stock
exchange and National Association of Securities Dealers, Inc. ("NASD")
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection
with qualification of any of the Registrable Securities under any
state securities or blue sky laws and the preparation of a blue sky
memorandum) and compliance with the rules of the NASD, (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and
4
distributing the registration statement under which the Registrable
Securities are registered on any prospectus included therein,
certificates and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, and (v) the fees
and disbursements of counsel for the Company and of the independent
public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to
such performance and compliance. Piggyback Registration Expenses shall
specifically exclude all underwriting discounts and selling
commissions and transfer taxes applicable to the sale of Registrable
Securities.
1.17 "Piggyback Registration Request" shall have the
meaning set forth in Section 4(a) hereof.
1.18 "Registrable Securities" shall mean the Shares,
excluding (i) Shares that have been disposed of under the Shelf
Registration Statement or any other effective registration statement,
(ii) Shares sold or otherwise transferred pursuant to Rule 144 under
the Securities Act, and (iii) Shares held by Worldspan if all of such
Shares are eligible for sale pursuant to Rule 144 under the Securities
Act and could be sold in one transaction in accordance with the volume
limitations contained in Rule 144(e)(1)(i) under the Securities Act.
1.19 "Registration Statement" shall mean a Shelf
Registration Statement or a registration statement registering
Registrable Securities pursuant to a Piggyback Registration.
1.20 "SEC" shall mean the Securities and Exchange
Commission.
1.21 "Securities Act" shall mean the Securities Act of
1933, as amended from time to time.
1.22 "Shares" shall mean shares of Common Stock issued to
Worldspan pursuant to the Warrant or any other warrant issued under
the Master Transaction Agreement.
1.23 "Shelf Prospectus" shall mean the prospectus
included in the Shelf Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto,
including any supplement relating to the terms of the offering of any
portion of the Registrable Securities covered by the Shelf
Registration Statement, and in each case including all material
incorporated by reference therein.
1.24 "Shelf Registration" shall mean the registration
required to be effected pursuant to Section 2 hereof.
1.25 "Shelf Registration Expenses" shall mean any and all
expenses incident to performance of or compliance with this Agreement,
including, without limitation: (i) all SEC, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection
with qualification of any of the Registrable Securities under any
state securities or blue sky laws and the preparation
5
of blue sky memorandum) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing the Shelf
Registration Statement, any Shelf Prospectus, certificates and other
documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, and (v) the fees and disbursements of counsel
for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance.
Shelf Registration Expenses shall specifically exclude underwriting
discounts and commissions, the fees and disbursements of counsel
representing Worldspan, and transfer taxes, if any, relating to the
sale or disposition of Registrable Securities.
1.26 "Shelf Registration Notice" shall have the meaning
set forth in Section 3(b) hereof.
1.27 "Shelf Registration Statement" shall mean a
registration statement of the Company (and any other entity required to
be a registrant with respect to such registration statement pursuant to
the requirements of the Securities Act) that covers all of the
Registrable Securities to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, or any similar rule that
may be adopted by the SEC, and all amendments (including post-effective
amendments) to such registration statement, and all exhibits thereto
and materials incorporated by reference therein.
1.28 "Warrant" shall mean that certain Warrant dated June
26, 2000 pursuant to which the Company has granted to Worldspan the
right to purchase shares of Common Stock.
2. SHELF REGISTRATION.
2.1 Filing of Shelf Registration Statement. Subject to
Section 2(c), if the Company receives from Worldspan a written request
that the Company effect a registration on Form S-3, then the Company
shall cause to be filed, the Shelf Registration Statement providing for
the sale by Worldspan of all of the Registrable Securities in
accordance with the terms hereof and will use its commercially
reasonable efforts to cause such Shelf Registration Statement to be
declared effective by the SEC as soon as practicable thereafter;
provided, however, that the aggregate price of the Registrable
Securities proposed to be sold to the public by Worldspan and any other
holders of the Company's securities eligible to participate pursuant to
such registration (net of underwriters' discount and commissions) is
equal to or greater than $500,000. The Company agrees to use its
commercially reasonable efforts to keep the Shelf Registration
Statement with respect to the Registrable Securities continuously
effective so long as Worldspan holds Registrable Securities or any
warrants to purchase Registrable Securities. Subject to Section 3(b)
and Section 3(i), the Company further agrees to amend the Shelf
Registration Statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company
for such Shelf Registration Statement or by the Securities Act or any
rules and regulations thereunder; provided, however, that the Company
shall not be deemed to have used its reasonable
6
efforts to keep the Shelf Registration Statement effective during the
applicable period if it voluntarily takes any action that would result
in Worldspan not being able to sell Registrable Securities covered
thereby during that period, unless such action is required under
applicable law or the Company has filed a post-effective amendment to
the Shelf Registration Statement and the SEC has not declared it
effective.
2.2 Expenses. The Company shall pay all Shelf
Registration Expenses in connection with the registration pursuant to
Section 2(a). Worldspan shall pay all underwriting discounts and
commissions, the fees and disbursements of counsel representing
Worldspan, and transfer taxes, if any, relating to the sale or
disposition of such Registrable Securities pursuant to the Shelf
Registration Statement.
2.3 Inability to File or Maintain Shelf Registration
Statement. The Company shall be obligated to comply with the provision
of Section 2 hereof only if the Company is permitted, under the
Securities Act and the rules and regulations of the SEC then
applicable, to file and maintain the Shelf Registration Statement on a
Form S-3 registration statement, or on any other similar forms that
permit the registration of the Shelf Registration Securities and the
incorporation by reference of subsequently filed documents under the
Exchange Act. In the event that the Company is unable to comply with
the provisions of Section 2 hereof in accordance with the foregoing
sentence, the Company shall become obligated to provide Worldspan with
those demand rights provided for in Section 5 hereof.
3. SHELF REGISTRATION PROCEDURES.
3.1 In connection with the obligations of the Company
with respect to the Shelf Registration Statement contemplated by
Section 2 hereof, the Company shall:
(a) prepare and file with the SEC, within the
time period set forth in Section 2 hereof, the Shelf
Registration Statement, which Shelf Registration Statement (i)
shall be available for the sale of the Registrable Securities
in accordance with the intended method or methods of
distribution by Worldspan and (ii) shall comply as to form in
all material respects with the requirements of the applicable
form and include all financial statements required by the SEC
to be filed therewith;
(b) subject to Section 3(i) hereof; (i) prepare
and file with the SEC such amendments to such Shelf
Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the applicable period;
(ii) cause the Shelf Prospectus to be amended or supplemented
as required and to be filed as required by Rule 424 or any
similar rule that may be adopted under the Securities Act;
(iii) respond as promptly as practicable to any comments
received from the SEC with respect to the Shelf Registration
Statement or any amendment thereto; and (iv) comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such Shelf
Registration Statement during the applicable period in
accordance with the intended method or methods or distribution
by Worldspan.
Notwithstanding anything to the contrary contained herein, the Company
shall not be
7
required to take any of the actions described in clauses (i), (ii) or
(iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the
Shelf Registrable Securities (A) to the extent that the Company is in possession
of material non-public information that it deems advisable not to disclose or is
engaged in active negotiations or planning for a merger or acquisition or
disposition transaction and it delivers written notice to Worldspan to the
effect that Worldspan may not make offers or sales under the Shelf Registration
Statement for a period not to exceed sixty (60) days from the date of such
notice; provided, however, that Worldspan shall not be precluded from effecting
sales pursuant to this clause (A) for more than (90) days during any 360-day
period, (B) unless and until the Company has received a written notice (a "Shelf
Registration Notice") from Worldspan that it intends to make offers or sales
under the Shelf Registration Statement as specified in such Shelf Registration
Notice; provided, however, that the Company shall have ten (10) business days to
prepare and file any such amendment or supplement after receipt of the Shelf
Registration Notice, (C) Form S-3 is not available for such offering by the
Worldspan, and (D) if the Company has, within the last twelve (12) month period
preceding the date of such request, already effected two registrations on Form-3
for Worldspan pursuant to this Section 3.
Once Worldspan has delivered a Shelf Registration Notice to the
Company, Worldspan shall promptly provide to the Company such information as
the Company reasonably requests in order to identify the method of distribution
in a post-effective amendment to the Shelf Registration Statement or a
supplement to the Shelf Prospectus. Worldspan also shall notify the Company in
writing upon completion of such offer or sale or at such time as Worldspan no
longer intend to make offers or sales under the Shelf Registration Statement;
(c) furnish Worldspan after it has delivered a
Shelf Registration Notice to the Company, without charge, as
many copies of each Shelf Prospectus and any amendment or
supplement thereto in order to facilitate the public sale or
other disposition of the Registrable Securities; the Company
consents to the use of the Shelf Prospectus and any amendment
or supplement thereto by Worldspan of Registrable Securities
in connection with the offering and sale of the Registrable
Securities covered by the Shelf Prospectus or amendment or
supplement thereto;
(d) use its commercially reasonable efforts to
register or qualify the Registrable Securities by the time the
Shelf Registration Statement is declared effective by the SEC
under all applicable state securities or blue sky laws of such
jurisdictions in the United States and its territories and
possessions as Worldspan shall reasonably request in writing,
keep each such registration or qualification effective during
the period such Shelf Registration Statement is required to be
kept effective or during the period offers or sales are being
made by Worldspan after it has delivered a Shelf Registration
Notice to the Company, whichever is shorter; provided,
however, that in connection therewith, the Company shall not
be required to (i) qualify as a foreign corporation to do
business or to register as a broker or dealer in any such
jurisdiction where it would not otherwise be required to
qualify or register but for this Section 3(d), (ii) subject
itself to taxation in any such jurisdiction, or (iii) file a
general consent to service of process in any such
jurisdiction;
8
(e) notify Worldspan promptly and, if requested
by Worldspan, confirm in writing, (i) when the Shelf
Registration Statement and any post-effective amendments
thereto have become effective, (ii) when any amendment or
supplement to the Shelf Prospectus has been filed with the
SEC, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of
the Shelf Registration Statement or any part thereof or the
initiation of any proceedings for that purpose, (iv) if the
Company receives any notification with respect to the
suspension of the qualification of the Registrable
Securities for offer or sale in any jurisdiction or the
initiation of any proceeding for such purpose, and (v) of the
happening of any event during the period the Shelf
Registration Statement is effective as a result of which (A)
such Shelf Registration Statement contains any untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or (B) the Shelf Prospectus
as then amended or supplemented contains any untrue statement
of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light
of the circumstances under which they were made, not
misleading;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the
Shelf Registration Statement or any part thereof as promptly
as possible;
(g) furnish to Worldspan after delivery of a
Shelf Registration Notice to the Company, without charge, at
least one conformed copy of the Shelf Registration Statement
and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless
requested);
(h) cooperate with Worldspan to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any
Securities Act legend; and enable certificates for such
Registrable Securities to be issued for such number of shares
as Worldspan may reasonably request at least two business
days prior to any sale of Registrable Securities; provided
that the Company receives timely notice thereof;
(i) upon the occurrence of any event
contemplated by clause (v) of Section 3(e) hereof, use its
reasonable efforts promptly to prepare and file an amendment
or a supplement to the Shelf Prospectus or any document
incorporated therein by reference or prepare, file and obtain
effectiveness of a post-effective amendment to the Shelf
Registration Statement, or file any other required document,
in any such case to the extent necessary so that, as
thereafter delivered to the purchasers of the Registrable
Securities, such Shelf Prospectus as then amended or
supplemented will not contain any 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 are made, not misleading;
9
(j) make available for inspection by Worldspan
after it has provided a Shelf Registration Notice to the
Company and any counsel, accountants or other representatives
retained by Worldspan all financial and other records,
pertinent corporate documents and properties of the Company
and cause the officers, directors and employees of the
Company to supply all such records, documents or information
reasonably requested by Worldspan, counsel, accountants or
representatives in connection with the Shelf Registration
Statement; provided, however, that such records, documents or
information which the Company determines in good faith to be
confidential and notifies Worldspan, counsel, accountants or
representatives in writing that such records, documents or
information are confidential shall not be disclosed by
Worldspan, counsel, accountants or representatives unless (i)
such disclosure is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, or (ii) such
records, documents or information become generally available
to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of
any Shelf Registration Statement or any amendment thereto, or
any Shelf Prospectus or any amendment or supplement thereto,
provide copies of such document (not including any documents
incorporated by reference therein unless requested) to
Worldspan after it has provided a Shelf Registration Notice
to the Company;
(l) use its reasonable efforts to cause all
Registrable Securities to be listed on any securities
exchange or quotation system on which similar securities
issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable
Securities, not later than the effective date of a Shelf
Registration Statement; and
(n) use its commercially reasonable efforts to
make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12
months which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder or any similar
rule as may be adopted by the SEC.
The Company may require Worldspan to furnish to the Company in writing
such information regarding the proposed distribution by Worldspan as the
Company may from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations
with respect to the Shelf Registration Statement pursuant to Section 2 hereof
and this Section 3, Worldspan covenants and agrees that (i) it will not offer
or sell any Registrable Securities under the Shelf Registration Statement until
it has provided a Shelf Registration Notice pursuant to Section 3(b) and has
received copies of the Shelf Prospectus as then amended or supplemented as
contemplated by Section 3(c) and notice from the Company that the Shelf
Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 3(e); (ii) upon receipt of any notice from
the Company contemplated by Section 3(e) (in respect of the occurrence of an
event contemplated by clause (v) of Section 3(e)), Worldspan shall not
10
offer or sell any Registrable Securities pursuant to the Shelf Registration
Statement until Worldspan receives copies of the supplemented or amended Shelf
Prospectus contemplated by Section 3(i) hereof and receive notice that any
post-effective amendment has become effective, and, if so directed by the
Company, Worldspan will deliver to the Company (at the expense of the Company)
all copies in its possession, other than permanent file copies then in
Worldspan's possession, of the Shelf Prospectus as amended or supplemented at
the time of receipt of such notice; (iii) all offers and sales by Worldspan
under the Shelf Registration Statement shall be completed within sixty (60)
days after the first date on which offers or sales can be made pursuant to
clause (i) above, and upon expiration of such sixty (60) day period, Worldspan
will not offer or sell any Registrable Securities under the Shelf Registration
Statement until it has again complied with the provisions of clause (i) above;
(iv) Worldspan will comply with the provisions of Regulation M under the
Securities Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Shelf Registration Statement; (v) Worldspan will
comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Shelf Registration Statement; and (vi) Worldspan will enter into such
written agreements as the Company shall reasonably request to ensure compliance
with clause (iv) and (v) above.
4. PIGGYBACK REGISTRATION.
4.1 RIGHT TO PIGGYBACK. If the Company at any time proposes to
register any of its Common Stock or other securities under the
Securities Act for sale to the public, whether for its own account or
for the account of other shareholders or both (except with respect to
registration statements on Form S-8 or another form not available for
registering the Registrable Securities for sale to the public) (a
"Piggyback Registration"), the Company will promptly (but in any event
within 30 days) give written notice to Worldspan of its intention to
effect such registration and will include in such registration all
Registrable Securities with respect to which the Company has received a
written request for inclusion within 15 days after the receipt of the
Company's notice (a "Piggyback Registration Request"); provided,
however, that the Company shall not be required to include Registrable
Securities in the securities to be registered pursuant to a
registration statement on any form which limits the amount of
securities which may be registered by the issuer and/or selling
security holders if, and to the extent that, such inclusion would make
the use of such form unavailable. In the event that any Piggyback
Registration shall be, in whole or in part, an underwritten public
offering of Common Stock, any Piggyback Registration Request by
Worldspan shall specify that either (i) such Registrable Securities are
to be included in the underwriting on the same terms and conditions as
the shares of Common Stock otherwise being sold through underwriters
under such registration, or (ii) such Registrable Securities are to be
sold in the open market without any underwriting, on terms and
conditions comparable to those normally applicable to offerings of
common stock in reasonably similar circumstances.
4.2 PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Company and the managing underwriters advise the Company in writing
that in their opinion the number of shares requested to be included in
such registration exceeds the maximum number which can be included in
such offering without adversely affecting the marketability of the
offering (the
11
"Maximum Number"), the Company will limit the number of shares included
in such registration to the Maximum Number, and the shares registered
shall be selected in the following order of priority: (i) first,
securities the Company proposes to sell and (ii) other securities
requested to be included in such registration.
4.3 Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of
holders of the Company's securities, and the managing underwriters
advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the
Maximum Number, the Company will include in such registration the
shares requested to be included therein by the holders requesting such
registration and the Registrable Securities covered by Piggyback
Registration Requests and any other securities requested to be included
in such registration, pro rata among the holders thereof on the basis
of the number of shares requested to be included in such registration.
4.4 Expenses. The Company shall pay all Piggyback
Registration Expenses in connection with the registration pursuant to
Section 4. Worldspan shall pay all underwriting discounts and selling
commissions, fees and disbursements of its counsel and transfer taxes
applicable to the sale of Registrable Securities.
5. DEMAND REGISTRATION.
5.1 Requests for Demand Registration. In the event that
the Company is not permitted to file the Shelf Registration Statement
in accordance with the provisions of Section 2(c) hereof, Worldspan
shall immediately become entitled to the rights of this Section 5.
Accordingly, Worldspan, by written request delivered to the Company on
or after the date 90 days after the Effective Date, may request
registration under the Securities Act of all or any portion of the
Registrable Securities held by Worldspan for sale in the manner
specified in such request. Each initial request for a registration
pursuant to this Section 5 shall specify the number of Registrable
Securities requested to be registered and sold by Worldspan, the method
of disposition to be employed and the Current Market Price of the
Common Stock as of the date of such request. Any request for
registration pursuant to this Section 5(a) shall be referred to herein
as a "Demand Registration Request" and all registrations requested
pursuant to this Section 5 are referred to herein as "Demand
Registrations."
5.2 Number of Demand Registrations. The Company shall be
required to effect two (2) Demand Registrations pursuant to this
Section 5, provided that the Company shall not be required to register
any shares for a delayed or shelf offering pursuant to Rule 415 under
the Securities Act unless the Company consents in writing.
Notwithstanding anything to the contrary contained herein, a
registration shall count as a Demand Registration only when a
registration statement covering all Registrable Securities covered by
such Demand Registration Request shall have become effective (except
that if, after it has become effective, the offering of Registrable
Securities pursuant to such registration statement is interfered with
by any stop order, injunction or action of the SEC not occasioned by
the fault of Worldspan, such registration shall be deemed not to have
been effected unless such stop order, injunction or other order or
request shall subsequently have been vacated or otherwise removed) and,
if such method
12
of disposition is a firm commitment underwritten public offering, all
such Registrable Securities shall have been sold pursuant thereto;
provided, however, that if a registration statement filed by the
Company pursuant to a Demand Registration Request shall be abandoned or
withdrawn at the behest of Worldspan, then, unless Worldspan shall,
promptly upon receipt of a request by the Company therefor supported by
an invoice setting forth the expenses in reasonable detail, reimburse
the Company for the Demand Registration Expenses in respect of such
registration statement attributable to Worldspan, the Company shall be
deemed to have effected a Demand Registration.
5.3 Minimum Offering Amount. The Company shall not be
required to register Registrable Securities pursuant to this Section 5
unless the aggregate Current Market Price of all Registrable Securities
covered by the Demand Registration Request shall be $500,000 or more
(unless and to the extent Worldspan shall hold less than $1 million of
Registrable Securities, in which case such minimum offering amount
shall be equal to the amount of Registrable Securities so held).
5.4 Selection of Underwriters. If the method of
disposition specified by Worldspan shall be an underwritten public
offering, the Company may designate the managing underwriter of such
offering, subject to the approval of Worldspan, which approval shall
not be unreasonably withheld.
5.5 Priority on Demand Registrations. The Company shall
be entitled to include in any registration statement referred to in
this Section 5, for sale in accordance with the method of disposition
specified by Worldspan, shares of Common Stock to be sold by the
Company for its own account or by other shareholders of the Company for
their account. Nonetheless, whether or not the Company desires to
include any such additional shares in a Demand Registration, if such
method of disposition is an underwritten public offering and the
managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such
registration exceeds the Maximum Number, then the Company will limit
the number of shares included in such registration to the Maximum
Number, and the shares registered shall be selected in the following
order of priority: (i) first, Registrable Securities covered by the
Demand Registration Request, (ii) second, securities the Company
proposes to sell and (iii) third, other securities requested to be
included in such registration.
5.6 Exception. Anything in this Section 5 to the contrary
notwithstanding, the Company shall not be required to file a
registration statement in connection with a Demand Registration (i)
within six months after the effective date of a Demand Registration or
any registration statement of the type referred to in Section 4,
provided that, as contemplated by Section 4, Worldspan shall have been
afforded the opportunity to sell Registrable Securities pursuant to
such registration statement, and all Registrable Securities requested
to be registered shall have been so registered and, if such
registration statement shall relate to an underwritten public offering,
shall have been included therein to the extent requested by Worldspan
and shall have been sold or (ii) if counsel for the Company, reasonably
acceptable to Worldspan shall deliver an opinion to Worldspan to the
effect that, pursuant to Rule 144 under the Securities Act or
otherwise, Worldspan can publicly offer and sell the Registrable
Securities as to which registration has been requested without
registration under the Securities Act.
13
5.7 Expenses. The Company shall pay all Demand
Registration Expenses in connection with the registration pursuant to
Section 5. Worldspan shall pay all underwriting discounts and selling
commissions, fees and disbursements of its counsel, and transfer taxes
applicable to the sale of Registrable Securities.
6. DEMAND REGISTRATION PROCEDURES.
6.1 If and whenever the Company is required by the
provisions of Section 5 hereof to use its COMMERCIALLY reasonable
efforts to effect the registration of any of the Registrable Securities
under the Securities Act, the Company shall use its reasonable efforts
to effect the registration and sale of the Registrable Securities in
accordance with the intended method of disposition thereof and will, as
expeditiously as possible:
(a) and in any case within 60 days after
receiving a request for a Demand Registration, prepare and
file with the SEC a registration statement (the "Demand
Registration Statement") with respect to such Registrable
Securities and use its commercially reasonable efforts to
cause such Demand Registration Statement to become and remain
effective for the period of the distribution contemplated
thereby (determined as hereinafter provided). Notwithstanding
anything to the contrary contained herein, the filing of such
Demand Registration Statement may be delayed for a period not
to exceed 60 days if (i) the Company is contemplating a public
offering of its securities and, in the reasonable judgment of
the managing underwriter thereof (or the Company if such
offering is not underwritten) such filing would have a
material adverse effect on the contemplated offering, or (ii)
the Company is in possession of material non-public
information that it reasonably deems advisable not to disclose
in a Demand Registration Statement or is engaged in active
negotiations or planning for a merger or acquisition or
disposition transaction;
(b) prior to the filing described in paragraph
(a) above, furnish to Worldspan copies of the Demand
Registration Statement and any amendments or supplements
thereto and any prospectus forming a part thereof, which
documents shall be subject to the approval of Worldspan only
with respect to any statement in the Demand Registration
Statement which relates to Worldspan;
(c) notify Worldspan promptly and, if requested
by Worldspan, confirm in writing, (i) when the Demand
Registration Statement and any post-effective amendments
thereto have become effective, (ii) when any amendment or
supplement to the Demand Prospectus has been filed with the
SEC, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of
the Demand Registration Statement or any part thereof or the
initiation of any proceedings for that purpose, (iv) if the
Company receives any notification with respect to the
suspension of the qualification of the Registrable Securities
for offer or sale in any jurisdiction or the initiation of any
proceeding for such purpose, and (v) of the happening of any
event during the period the Demand Registration Statement is
effective as a result of which (A) such Demand Registration
Statement contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein
or necessary to make the
14
statements therein not misleading or (B) the Demand Prospectus
as then amended or supplemented contains any untrue statement
of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(d) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the
Demand Registration Statement or any part thereof as promptly
as possible;
(e) furnish to Worldspan after delivery of a
Demand Registration Request to the Company, without charge, at
least one conformed copy of the Demand Registration Statement
and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless
requested);
(f) prepare and file with the SEC amendments and
supplements to such Demand Registration Statement and the
Demand Prospectus used in connection therewith as may be
necessary to keep such Demand Registration Statement effective
for the period specified in paragraph (a) above and to comply
with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such
Demand Registration Statement in accordance with Worldspan's
intended method of disposition set forth in such Demand
Registration Statement for such period;
(g) furnish to Worldspan and to each underwriter
such number of copies of the Demand Registration Statement and
the Demand Prospectus included therein (including each
preliminary prospectus) and such other documents, as such
persons may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities
covered by such Demand Registration Statement;
(h) use its commercially reasonable efforts to
register or qualify the Registrable Securities covered by such
Demand Registration Statement under the securities or blue sky
laws of such jurisdictions as Worldspan or, in the case of an
underwritten public offering, the managing underwriter, shall
reasonably request;
(i) provide a transfer agent and registrar,
which may be a single entity, for all Registrable Securities
not later than the effective date of the Demand Registration
Statement;
(j) use its reasonable efforts to cause all
Registrable Securities to be listed on any securities exchange
or quotation system on which similar securities issued by the
Company are then listed;
(k) if the offering is underwritten, to furnish,
at the request of Worldspan, on the date that Registrable
Securities are delivered to the underwriters for sale pursuant
to such registration; (i) an opinion dated such date of
counsel representing the Company for the purposes of such
registration, addressed to the underwriters, stating the such
Demand Registration Statement has become effective under the
Securities Act and that (A) to the best knowledge
15
of such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Securities Act, (B) the Demand Registration Statement, the
related Demand Prospectus, and each amendment or supplement
thereto, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules
and regulations of the SEC thereunder and that such counsel
does not believe that any such Demand Registration Statement,
Demand Prospectus, amendment or supplement contains a
misstatement of a material fact or an omission to state a
material fact required to be stated therein or necessary to
make the statements made therein, in light of the
circumstances under which they were made, not misleading
(except that such counsel need express no opinion as to
financial statements or financial or statistical data
contained therein) and (C) to such other effects as may
reasonably be requested by counsel for the underwriters or by
Worldspan or its counsel, and (ii) a letter dated such date
from the independent public accountants retained by the
Company, addressed to the underwriters, stating that they are
independent public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants,
the financial statements of the Company included in the Demand
Registration Statement or the Demand Prospectus, or any
amendment or supplement thereto, comply as to form in all
material respects with the applicable accounting requirements
of the Securities Act,and such letter shall additionally cover
such other financial matters (including information as to the
period ending no more than five business days prior to the
date of such letter) with respect to the registration in
respect of which such letter is being given as such
underwriters may reasonably request; and
(1) make available for inspection by Worldspan
after delivery of a Demand Registration Request to the Company
and any counsel, accountants or other representatives retained
by Worldspan all financial and other records, pertinent
corporate documents and properties of the Company and cause
the officers, directors and employees of the Company to supply
all such records, documents or information reasonably
requested by Worldspan, counsel, accountants or
representatives in connection with the Demand Registration
Statement; provided, however, that such records, documents or
information which the Company determines in good faith to be
confidential and notifies Worldspan, counsel, accountants or
representatives in writing that such records, documents or
information are confidential shall not be disclosed by
Worldspan, counsel, accountants or representatives unless (i)
such disclosure is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, or (ii) such
records, documents or information become generally available
to the public other than through a breach of this Agreement.
For purposes of paragraphs (a) and (f) of this Section 6, the period of
distribution of Registrable Securities in a firm commitment underwritten public
offering shall be deemed to be that period during which the underwriters in such
offering require in an underwriting agreement in the form customarily used by
such underwriters for comparable transactions that the Company
16
keep a registration statement effective to permit each underwriter to complete
the distribution of all securities purchased by it, and the period of
distribution of Registrable Securities in any other registration shall be
deemed to extend until the earlier of the sale of all Registrable Securities
covered thereby or nine months after the effective date thereof.
In connection with each registration hereunder, Worldspan will furnish
to the Company in writing such information with respect to itself and the
proposed distribution by itself as shall be reasonably necessary in order to
assure compliance with federal and applicable state securities laws. Reasonable
compliance with the obligation to furnish such information shall be a condition
to the rights afforded Worldspan hereunder. In addition, Worldspan (i) will
comply with the provisions of Regulation M under the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Demand Registration Statement; (ii) will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to the Demand Registration
Statement; and (iii) will enter into such written
agreements as the Company shall reasonably request to ensure compliance
therewith.
IN CONNECTION WITH EACH REGISTRATION PURSUANT TO SECTION 5 HEREOF COVERING AN
UNDERWRITTEN PUBLIC OFFERING, THE COMPANY AGREES TO ENTER INTO A WRITTEN
AGREEMENT WITH THE MANAGING UNDERWRITER SELECTED IN THE MANNER HEREIN PROVIDED
IN SUCH FORM AND CONTAINING SUCH PROVISIONS AS ARE CUSTOMARY IN THE SECURITIES
BUSINESS FOR SUCH AN ARRANGEMENT BETWEEN MAJOR UNDERWRITERS AND COMPANIES OF
THE COMPANY'S SIZE AND INVESTMENT STATURE; PROVIDED THAT SUCH AGREEMENT SHALL
NOT CONTAIN ANY SUCH PROVISION APPLICABLE TO THE COMPANY WHICH IS INCONSISTENT
WITH THE PROVISIONS HEREOF; PROVIDED, FURTHER THAT THE TIME AND PLACE OF THE
CLOSING UNDER SAID AGREEMENT SHALL BE AS MUTUALLY AGREED UPON BETWEEN THE
COMPANY AND SUCH MANAGING UNDERWRITER.
7. HOLDBACK AGREEMENTS.
7.1 Worldspan. Worldspan agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into
or exchangeable or exercisable for such securities, during the 7 days
prior to (provided that Worldspan receives a notice from the Company
of the commencement of such 7-day period) and the 90-day period
beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such
underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
7.2 Company Officers and Directors. The Company agrees
(i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the 7 days prior to (provided
that the Company receives notice of the commencement of such 7-day
period) and the 90-day
17
period beginning on the effective date of any underwritten Demand
Registration or underwritten Piggyback Registration (except as part
of such underwritten registration or pursuant to registrations on Form
S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) to use its best
efforts to cause each of the Company's officers and directors who hold
Common Stock or any securities convertible into or exercisable for
Common Stock, to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities during
such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered
public offering otherwise agree.
8. INDEMNIFICATION; CONTRIBUTION.
8.1 Indemnification by the Company. The Company agrees
to indemnify and hold harmless Worldspan and its partners, officers
and directors and each Person, if any, who controls Worldspan within
the meaning of Section 15 of the Securities Act as follows:
(a) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to which
Worldspan, or any partner, officer, director or controlling
Person may become subject under the Securities Act or
otherwise that arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in a registration statement under which Registrable
Securities were registered or any prospectus included therein
(in each case, as amended or supplemented), or the omission
or alleged omission to state therein 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;
(b) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or alleged untrue
statement or any omission or alleged omission, if such
settlement is effected with the written consent of the
Company; and
(c) subject to the limitations set forth in
Section 8(c), against any and all expense whatsoever, as
incurred (including reasonable fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, in each case whether or not a party, or any claim
whatsoever based upon any such untrue statement or alleged
untrue statement or omission or alleged omission, to the
extent that any such expense is not paid under subparagraph
(i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 8(a)
shall not apply with respect to any loss, liability, claim, damage or expense
that arises out of, is based upon or results from any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by
18
Worldspan expressly for use in the registration statement under which
Registrable Securities were registered or any prospectus included therein (in
each case, as amended or supplemented).
8.2 Indemnification by Worldspan. World span agrees to
indemnify and hold harmless the Company, and each of its respective
directors and officers (including each director and officer of the
Company who signed a registration statement), and each Person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act, to the same extent as the indemnity contained in
Section 8(a) hereof, but only insofar as such loss, liability, claim,
damage or expense arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in a
registration statement under which Registrable Securities were
registered or any prospectus included therein (in each case, as amended
or supplemented), in reliance upon and in conformity with written
information furnished to the Company by Worldspan expressly for use
therein. In no event, however shall the liability of Worldspan exceed
the net proceeds received by Worldspan from any offering made in
connection with a registration statement.
8.3 Conduct of Indemnification Proceedings. Each
indemnified party shall give reasonably prompt notice to each
indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party (i) shall not relieve it from any
liability which it may have under the indemnity agreement provided in
Section 8(a) or (b) above, unless and to the extent it did not
otherwise learn of such action and the lack of notice by the
indemnified party materially prejudices the indemnifying party or
results in the forfeiture by the indemnifying party of substantial
rights and defenses, and (ii) shall not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided under Section 8(a) or (b)
above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, jointly
with any other indemnifying party so notified, to assume the defense of
such action or proceeding at such indemnifying party's own expense with
counsel chosen by such indemnifying party and approved by the
indemnified party, which approval shall not be unreasonably withheld;
provided, however, that if the defendants in any such action or
proceeding include both the indemnified party and the indemnifying
party and the indemnified party reasonably determines, upon advice of
counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying
party, then the indemnified party shall be entitled to one separate
counsel, the reasonable fees and expenses of which shall be paid by the
indemnifying party. If the indemnifying party does not assume the
defense of any such action or proceeding, after having received the
notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel
(which shall be limited to a single law firm) for the indemnified
party. In such event, however, the indemnifying party will be liable
for any settlement effected without the written consent of such
indemnifying party. If the indemnifying party assumes the defense of
any such action or proceeding in accordance with this paragraph, such
indemnifying party shall not be liable for any fees and expenses of
counsel for the indemnified party incurred
19
thereafter in connection with such action or proceeding, except as set
forth in the proviso in the second sentence of this Section 8(c).
8.4 Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in this Section 8 is for any reason held to be
unenforceable although applicable in accordance with its terms, the
Company and Worldspan shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Company and Worldspan, in such
proportion as is appropriate to reflect the relative fault of and
benefits to the Company on the one hand and Worldspan on the other, in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits to the
indemnifying party and indemnified parties shall be determined by
reference to, among other things, the total proceeds received by the
indemnified party and indemnified parties in connection with the
offering to which such losses, claims, damages, liabilities or expenses
relate. The relative fault of the indemnifying party and indemnified
parties shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or related to information supplied by,
such indemnifying party or the indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such action.
The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this
Section 8(d), Worldspan shall not be required to contribute any amount
in excess of the amount by which the total price at which the
Registrable Securities of Worldspan were offered to the public exceeds
the amount of any damages which Worldspan would otherwise have been
required to pay by reason of such untrue statement or omission.
Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8(d), each Person, if any, who controls Worldspan within
the meaning of Section 15 of the Securities Act and partners, directors
and officers of Worldspan shall have the same rights to contribution as
Worldspan, and each director of the Company, each officer of the
Company who signed a registration statement, and each Person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the
Company.
8.5 In the event any sale pursuant to a Shelf
Registration or Piggyback Registration is an underwritten offering,
then the Company agrees to indemnify and hold harmless each underwriter
of Registrable Securities to the same extent and on substantially
similar terms as the Company's indemnification of Worldspan as set
forth in Section 8(a) above.
20
9. RULE 144 SALES.
9.1 Compliance. The Company covenants that, so long as
it is subject to the reporting requirements of the Exchange Act, it
will file the reports required to be filed by it under the Exchange Act
so as to enable Worldspan to sell Registrable Securities or Registrable
Securities pursuant to Rule 144 under the Securities Act.
9.2 Cooperation with Worldspan. In connection with any
sale, transfer or other disposition by Worldspan of any Registrable
Securities pursuant to Rule 144 under the Securities Act, the Company
shall cooperate with Worldspan to facilitate the timely preparation and
delivery of certifies representing Registrable Securities to be sold
and not bearing any Securities Act legend, and enable certificates for
such Registrable Securities to be for such number of shares as
Worldspan may reasonably request at least two business days prior to
any sale of Registrable Securities.
10. MISCELLANEOUS.
10.1 Amendment and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified, supplemented or waived, nor may consent to
departures therefrom be given, without the written consent of the
parties hereto.
10.2 Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery, (i) if to Worldspan, to ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
______________________, Facsimile (____)______________ or (ii) if to
the Company, to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ______________________, Facsimile
(____)______________. All such notices and communications shall be
deemed to have been duly given at the time delivered by hand, if
personally delivered; five business days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt is acknowledged, if telecopied; or at the time delivered by an
air courier guaranteeing overnight delivery.
10.3 Successors and Assigns. This Agreement may not be
transferred or assigned, in whole or in part, without the prior written
consent of the Company, which will not be unreasonably withheld, except
that consent will not be required in the case of an assignment to an
affiliate of Worldspan or any entity that (i) acquires all or
substantially all of the assets of Worldspan, whether through purchase,
merger, consolidation or otherwise and (ii) agrees, or by operation of
law is required, to comply with and be bound by the provisions of this
Agreement to the same extent as Worldspan. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and
transfers of each of the parties. If any successor, assignee or
transferee of Worldspan shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement,
and by taking and holding such Registrable Securities, such Person
shall be entitled to receive the benefits hereof and shall be
conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
21
10.4 Third Party Beneficiaries. There shall be no third party
beneficiaries or intended beneficiaries of this Agreement.
10.5 Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
10.6 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia without giving
effect to the conflicts of law provisions thereof.
10.8 Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that each party, in addition
to any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
10.9 Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
----------------------
Name:
--------------------
Title:
-------------------
WORLDSPAN, L.P.
By:
----------------------
Name:
--------------------
Title:
-------------------