LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF OWW2, LLC A Delaware Limited Liability Company Dated as of June 19, 2007
LIMITED LIABILITY COMPANY OPERATING AGREEMENT dated as of June 19, 2007, (the “Operating
Agreement”), of OWW2, LLC (the “Company”), by TDS Investor (Luxembourg) S.a.r.l., a Delaware
Corporation, as member of the Company (the “Member”).
RECITAL
The member desires to form the Company under the Delaware Limited Liability Company Act (as
amended from time to time, the “Act”).
Accordingly, in consideration of the mutual covenants contained herein, the parties hereto
hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Capitalized terms used by not otherwise defined herein
shall have the meanings assigned to them in the Act.
ARTICLE II
General Provisions
SECTION 2.1. Formation. The member hereby forms the Company pursuant to the Act. A
Certificate of Formation described in Section 18.201 of the Act (the “Certificate of Formation”)
has been filed with the Secretary of State of the State of Delaware in conformity with the Act.
SECTION 2.2. Company Name. The name of the Company “OWW2, LLC” or such other name or
names as may be selected by the Members from time to time, and its business shall be carried on in
such name with such variations and changes as the Members deem necessary to comply with
requirements of the jurisdictions in which the Company’s operations are conducted.
SECTION 2.3. Registered Office; Registered Agent. The Company shall maintain a
registered office in the State of Delaware at, and the name and address of the Company’s registered
agent in the State of Delaware is, Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.4. Place of Business. The business address of the Company shall be
determined by the Board (as defined below). The Company may from time to time have such other
place or places of business within or without the State of Delaware as the Board may deem
advisable.
SECTION 2.5. Purpose; Nature of Business Permitted; Powers. The Company is formed
for the purpose of engaging in any lawful act or activity for which limited liability companies may
be formed under the Act. The Company shall possess and may exercise all the powers and privileges
granted by the Act or by any other law or by the Operating Agreement, together with any powers and
privileges incidental thereto, insofar as such powers and privileges are necessary or convenient to
the conduct, promotion or attainment of the business purpose or activities of the Company.
SECTION 2.6. Business Transactions of a Member with the Company. In accordance with
Section 18-107 of the Act, a member may lend money to, borrow money from, act as surety, guarantor
or endorser for, guarantee or assume one or more specific obligations of, provide collateral for,
and transact other business with, the Company and, subject to applicable law, shall have the same
rights and obligations with respect to any such matter as a person who is not a Member.
SECTION 2.7. Fiscal Year. The fiscal year of the Company (the “Fiscal Year”) for
financial statement and federal income tax purposes shall be determined by the Board.
ARTICLE III
Members
SECTION 3.1. Members. The Members of the Company shall consist of the Members set
forth on Scheduled A hereto. Schedule A shall be amended from time to time to reflect the
admission of any Member or the removal, expulsion, retirement or death of any Member, the receipt
by the Company of notice of any change of name of a Member and any additional capital
contributions. Subject to the limitations and restrictions set forth in the Operating Agreement,
each Member shall have all the rights, powers and obligations which may be possessed by a member of
a limited liability company under the Act.
SECTION 3.2 Classes. The membership interests of the Company shall consist of one
class of common membership interests (“Common Interests”). Except as specifically provided herein,
all Common Interests shall be identical with each other in every respect.
SECTION 3.3. Voting. Except as expressly provided otherwise in the Operating
Agreement, all Members shall vote as a single class and no Member shall have the right to vote as a
separate class. Members shall only entitled to vote upon those matters requiring approval of the
Members pursuant to the Operating Agreement, the Act or as otherwise submitted to Members for their
consideration by the Board. Each Member shall be entitled to vote in proportion to its respective
Common Interests in the Company set forth on Schedule A hereto (the “Common Interest Percentage”)
at the time such action is taken.
SECTION 3.4. Liability of Members. All debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Member shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a Member.
SECTION 3.5. Company Property. No real or other property of the Company shall be
deemed to be owned by any Member individually, but shall be owned by and title shall be vested
solely in the Company. The interests of the Members in the Company shall constitute personal
property.
SECTION 3.6. Actions by the Members; Meetings; Quorum.
(a) The Members may vote, approve a matter or take any action by the vote of the Members
at a meeting, in person or by proxy, or without a meeting by written consent. Meetings of the
Members may be conducted in person or by conference telephone facilities. Any action required or
permitted to be taken at any meeting of the Members may be taken without a meeting if such number
of members holding at least the Common Interest Percentage required to approve such action pursuant
to the terms of the Operating Agreement or the Act consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Members.
(b) For any meeting of Members, the presence in person or by proxy of Members owning at least
fifty and one-tenth percent (50.1%) of the outstanding Common Interests at the time of the action
taken (a “Majority”) constitutes a quorum for the transaction of business.
(c) The affirmative vote of a Majority of Members constitutes approval of any action.
ARTICLE IV
Management
SECTION 4.1. Management of the Company.
(a) Subject to such matters which are expressly reserved hereunder to the Members for
decision, the business and affairs of the Company shall be managed by a Board of Managers (the
“Board”), which shall be responsible for policy setting and approval of the overall direction of
the Company. The Board shall consist of a minimum of one (1) individuals but not more than five
(5) (the “Managers”) each of whom shall be designated by the Members from time to time. Each
Manager shall serve a one (1) year term and until his or her successor is duly elected and
qualified.
(b) Managers may be removed from office only upon the approval of the members with or without
cause. Any vacancy occurring on the Board due to resignation, removal, death or disability shall
be filled by the members. A Manager chosen to fill a vacancy shall serve the unexpired term of his
or her predecessor in office.
SECTION 4.2. Meetings of the Board.
(a) The Board shall meet annually and at such other times as may be necessary for the
Company’s business on at least one (1) days’ prior written notice of the time and place of such
meeting given by any Manager. A majority of the Managers elected and serving shall constitute a
quorum for the transactions of business by the Board.
(b) All actions of the Board shall require the affirmative vote of a majority of the Managers.
A Manager who is present at a meeting of the Board when action is taken shall be deemed to have
assented to the action taken unless: (i) the Manager objects at the beginning of the meeting, or
promptly upon his or her arrival, to holding the meeting or transacting business thereat, (ii)
the Manager’s dissent or abstention from the action taken is entered in the minutes of the meeting;
or (iii) the Manager delivers written notice of his or her dissent or abstention to the presiding
officer of the meeting before its adjournment or to the Secretary of the Company immediately after
adjournment of the meeting. The right of dissent or abstention shall not be available to a Manager
who votes in favor of the action taken.
(c) Notice of any Board meeting may be waived by any Manager before or after such meeting.
(d) Meetings of the Board may be conducted in person or by conference telephone facilities.
Any action required or permitted to be taken at any meeting of the Board may be taken without a
meeting if all members of the Board consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board.
SECTION 4.3. Officers. The Board shall have the authority and power to appoint
and terminate with or without cause officers of the Company and such officers shall have such
powers and duties as may be delegated to them by the Board.
SECTION 4.4. Reliance by Third Parties. Persons dealing with the Company are
entitled to rely conclusively upon the power and authority of the Board herein set forth and the
power and authority delegated to any officer of the Company by the Board.
SECTION 4.5. Expenses. Except as otherwise provided in the Operating
Agreement, the Company will be responsible for all expenses, including, without limitation:
(a) all expenses related to the business of the Company and all routine administrative
expenses of the Company, including the maintenance of books and records of the Company, the
preparation and dispatch to the Members of checks, financial reports, tax returns and notices
required pursuant to the Operating Agreement or in connection with the holding of any meetings of
the Members;
(b) all expenses incurred in connection with any indebtedness or guarantees of the Company or
any proposed or definitive credit facility or other credit arrangement;
(c) all expenses incurred in connection with any litigation or arbitration involving the
Company (including the cost of any investigation and preparation) and the amount of any judgment or
settlement paid in connection therewith;
(d) all expenses for indemnity or contribution payable by the Company to any person;
(e) all expense incurred in connection with the collection of amounts due to the Company from
any person; and
(f) all expenses incurred in connection with the preparation of amendments to the Operating
Agreement.
ARTICLE V
Capital Structure and Contributions
SECTION 5.1. Capital Structure. The capital structure of the Company shall consist
of one class of Common Interests.
SECTION 5.2. Capital Contributions.
(a) Each Member shall contribute, as in initial capital contribution (“Initial Capital
Contribution”) to the Company, the following:
TDS Investor (Luxembourg) S.a.r.l. 100%
(b) In exchange for the Initial Capital Contributions, Travelport Americas, LLC shall receive
Common Interests in the Company in the proportion to the Common Interest Percentage set forth
opposite the name of each such Member on Schedule A hereto.
SECTION 5.3. Additional Contributions. No Member shall be obligated to make any
additional capital contribution to the Company. Members shall be permitted to make additional
capital contributions with the approval of the Board.
ARTICLE VI
Allocations and Distributions
SECTION 6.1. Allocation of Profits and Losses. For financial accounting, the
Company’s net profits or net losses shall be determined on an annual basis in accordance with
generally accepted accounting principles. For tax purposes, the Company’s net profits or net
losses shall be determined on an annual basis in accordance with the manner in which profit or loss
is determined for Federal income tax purposes. In each year, profits and losses shall be allocated
to the Members in proportion to each Member’s Common Interest Percentage as set forth on Schedule A
hereto.
SECTION 6.2. No Right to Distributions. No member shall have the right to demand
distributions of any amount of its capital contributions, except as expressly provided in this
Article 6.
SECTION 6.3. Ordinary Distributions. Subject to the provisions of Section 6.4 upon
the approval of a majority of the Board, the Company may make distributions (in amounts to be
determined by the Board) to Members in proportion to their respective Common Interest Percentages.
SECTION 6.4. Restrictions on Distributions. The foregoing provisions of this Article
6 to the contrary notwithstanding, no distribution shall be made if such distribution would violate
any contract or agreement to which the Company is then a party or any law, rule, regulation, order
or directive of any governmental authority then applicable to the Company.
SECTION 6.5. Withholding. The Company is authorized to withhold from distributions
to a Member, or with respect to allocations to a Member, and to pay over to a Federal, state or
local government, any amounts required to be withheld pursuant to the Internal Revenue Code of
1986, as amended, or any provisions of any other Federal, state or local law. Any amounts so
withheld shall be treated as having been distributed to such Member pursuant to this Article 6 for
all purposes of the Operating Agreement, and shall be offset against the current or next amounts
otherwise distributable to such Member.
ARTICLE VII
Books and Records
SECTION 7.1. Books and Records; Accounting. The Company shall keep or cause to be
kept at the office of the Company (or at such other place as the Board shall determine in its
discretion) full and accurate books and records regarding the status of the business and financial
condition of the Company.
SECTION 7.2. Company Tax Returns. The Company shall cause to be prepared and timely
filed all tax returns required to be filed for the Company.
ARTICLE VIII
Duration and Termination of the Company
SECTION 8.1. Term. The existence of the Company shall commence on the date of the
filing of the Certificate of Formation in the office of the Secretary of State of the State of
Delaware in accordance with the Act and shall have a perpetual life unless one of the following
events shall occur (an “Event of Termination”):
(a) a determination by a Majority of the Members to terminate the Company; or
(b) the entry of a decree of judicial dissolution under Section 18-802 of the Act. No other
event, including the retirement, withdrawal, insolvency, liquidation, dissolution, insanity,
resignation, expulsion, bankruptcy, death, incapacity or adjudication of incompetence of a Member,
shall cause the existence of the Company to terminate.
SECTION 8.2. Liquidation.
(a) In the event that an Event of Termination shall occur, then the Company shall be
liquidated and its affairs shall be wound up. All proceeds from such liquidation shall be
distributed in accordance with the provisions of Section 18-804 of the Act, and all interests in
the Company shall be canceled. Distributions to the Members shall be made in accordance with each
Member’s Common Interest Percentage.
(b) In the event of the dissolution of the Company, prior to any liquidation a proper
accounting shall be made to the Members from the date of the last previous accounting to the date
of dissolution.
(c) In the event the Board determines that a portion of the Company’s assets are best
distributed in kind to the Members, then such assets shall be so distributed in kind to the Members
in undivided shares therein as tenants in common in accordance with each Member’s Common Interest
Percentage.
(d) Upon the completion of the distribution of the Company’s assets, the Company shall be
terminated and the Members shall cause the Company to execute and file a Certificate of
Cancellation in accordance with Section 18-203 of the Act.
ARTICLE IX
Reports
SECTION 9.1. Form K-1. After the end of each fiscal year, the Board shall cause to
be prepared and transmitted, as promptly as possible, and in any event within 90 days of the close
of the fiscal year, a federal income tax Form K-1 and any required similar state income tax form
for each Member.
ARTICLE X
Exculpation and Indemnification
SECTION 10.1. Exculpation. Notwithstanding any other provisions of the Operating
Agreement, whether express or implied, or obligation or duty at law or in equity, none of any
Manager, any Member, or any officers, directors, stockholders,
partners, employees, representatives or agents of either of the foregoing, nor any officer,
employee, representative or agent of the Company or any of its affiliates (individually, a “Covered
Person” and collectively, the “Covered Persons”) shall be liable to the Company or any other person
for any act or omission (in relation to the Company, the Operating Agreement, any related document
or any transaction contemplated hereby or thereby) taken or omitted in good faith by a Covered
Person and in the reasonable belief that such act or omission is in or is not contrary to the best
interests of the Company and is within the scope of authority granted to such Covered Person by the
Operating Agreement, provided that such act or omission does not constitute fraud, willful
misconduct, bad faith or gross negligence.
SECTION 10.2. Indemnification. To the fullest extent permitted by law, the Company
shall indemnify and hold harmless each Covered Person from and against any and all Losses, claims,
demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any
and all claims, demands actions, suits or proceedings, civil, criminal, administrative or
investigative, in which the Covered Person may be involved, or threatened to be involved, as a
party or otherwise, by reason of its management of the affairs of the Company or which relates to
or arises out of the Company or its property, business or affairs. Notwithstanding the foregoing,
a Covered Person shall not be entitled to indemnification under this Section 10.2 with respect to
any claim, issue or matter in which such Covered Person is found by a court of competent
jurisdiction to have engaged in fraud, willful misconduct, bad faith or gross negligence.
SECTION 10.3. Advancement of Expenses. The Company may pay for in advance or
reimburse the reasonable expenses, including reasonable attorneys’ fees, incurred by a Covered
Person in such proceeding referred to in Section 10.2 in advance of the final disposition of such
proceeding, or, where appropriate, may assume the defense of any such Covered Person at the
Company’s expense upon the receipt by the Company of an undertaking by such Covered Person to repay
any amounts so advanced if such Covered Person is ultimately determined not to be entitled to
indemnification pursuant to Section 10.2 hereof.
SECTION 10.4. Indemnification Not Exclusive. The indemnification and advancement of
expenses provided for in this Article X shall not exclude, limit or preclude any other rights to
which any such Covered Person seeking indemnification or advancement of expenses may be entitled
under the Act, any agreement or contract, any other applicable law or otherwise, and shall continue
as to a Covered Person who has ceased to serve as a manager, officer, employee, agent, partner,
trustee, or in any other indemnified capacity, and shall inure to the benefit of the heirs,
executors, administrators of any such Covered Person.
SECTION 10.5 Insurance. The Company may purchase and maintain insurance on behalf of any
Covered Person against any liability asserted against or
incurred by such Covered Person in any capacity or arising out of his or her status as such,
whether or not the Company has the obligation or power to indemnify such Covered Person against
such liability pursuant to the provisions of this Article X, the Act, or otherwise.
SECTION 10.6. Continuation of Indemnity. The provisions of this Article X shall
continue to apply to any proceeding specified in Section 10.2 made or commenced against any Covered
Person who has ceased to be a Covered Person entitled to Indemnification hereunder and shall insure
to the benefit of the estate, heirs and personal representatives of such Covered Person.
ARTICLE XI
Miscellaneous
SECTION 11.1. Transfers of Common Interests. Each Member shall be entitled to
transfer its Common Interest in the Company, and the assignee of such Common Interest shall be
entitled to exercise all rights and privileges of a Member of the Company, including, without
limitation, the right to participate in the management of the Company, upon the occurrence of each
of the following:
(i) a majority of the Members (other than the Member assigning its
Common Interest) consents to the admission of such assignee as a
Member of the Company; and
(ii) the Board receives written instruments whereby such assignee
consents to be bound by the terms of the Operating Agreement.
SECTION 11.2. Amendment to the Agreement. Except as otherwise provided in the
Operating Agreement, the Operating Agreement may be amended by, and only by, a written instrument
executed by all of the Members.
SECTION 11.3. Successors; Counterparts. The Operating Agreement (a) shall be binding
as to the legal successors, assigns, nominees and representatives of the Members and (b) may be
executed in several counterparts with the same effect as if the parties executing the several
counterparts had all executed one counterpart.
SECTION 11.4. Governing Law; Severability. The Operating Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware without giving effect to the
principles of conflict of laws thereof. In particular, the Operating Agreement shall be construed
to the maximum extent possible to comply with all the terms and conditions of the Act. If it shall
be determined by a court of competent jurisdiction that any provisions or wording of the Operating
Agreement shall be invalid or unenforceable under the Act or other
applicable law, such invalidity or unenforceability shall not invalidate the entire Agreement.
In that case, the Operating Agreement shall be construed so as to limit any term or provision so
as to make it enforceable or valid within the requirements of applicable law, and, in the event
such term or provisions cannot be so limited, the Operating Agreement shall be construed to omit
such invalid or unenforceable terms or provisions. If it shall be determined by a court of
competent jurisdiction that any provision relating to the distributions and allocations of the
Company or to any expenses payable by the Company is invalid or unenforceable, the Operating
Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to
make the distributions and allocations as closely equivalent to those set forth in the Operating
Agreement as is permissible under applicable law.
SECTION 11.5. Filings. Following the execution and delivery of the Operating
Agreement, the Members shall promptly prepare any documents required to be filed and recorded under
the Act, and the Members shall promptly cause each such document to be filed and recorded in
accordance with the Act and, to the extent required by local law, to be filed and recorded or
notice thereof to be published in the appropriate place in each jurisdiction in which the Company
may hereafter establish a place of business. The Members shall also promptly cause to be filed,
recorded and published such statements of fictitious business name and any other notices,
certificates, statements or other instruments required by any provision of any applicable law of
the United States or any state or other jurisdiction which governs the conduct of its business from
time to time.
SECTION 11.6. Headings. Section and other headings contained in the Operating
Agreement are for reference purposes only and are not intended to describe, interpret, define or
limit the scope or intent of the Operating Agreement or any provision hereof.
SECTION 11.7. Additional Documents. Each Member agrees to perform all further acts
and execute, acknowledge and deliver any documents that may be reasonably necessary to carry out
the provisions of the Operating Agreement.
SECTION 11.8. Notices. All notices, requests and other communications to any Member
shall be in writing (including telecopier or similar writing) and shall be given to such member
(and any other person designated by such Member) at its address or telecopier number set forth in a
schedule filed with the records of the Company or such other address or telecopier number as such
Member may hereafter specify for the purpose by notice. Each such notice, request or other
communication shall be effective (a) if given by telecopier, when transmitted to the number
specified pursuant to this Section and the appropriate confirmation is received, (b) if given by
the mails with first class postage prepaid, addressed as aforesaid, or (c) if given by any other
means, when delivered at the address specified pursuant to this Section.
SECTION 11.9. Waiver of Partition. Each of the Members hereby irrevocably waives any
and all rights that such Member may have to maintain any action for partition of any of the
Company’s property.
SECTION 11.10. Interpretation. Wherever from the context it appears appropriate,
each term stated in either the singular or the plural shall include the singular and the plural,
and pronouns stated in either the masculine, the feminine, or the neuter gender shall include the
masculine, feminine and neuter.
{SIGNATURE PAGE FOLLOWS}
IN
WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the 19th day of June, 2007.
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇ | |||
| Title: | Manager | |||
Schedule A
| Member | Percentage |
|||
TDS Investor (Luxembourg) S.a.r.l.
|
100 | % | ||