EXHIBIT 10.1


 


MASTER AGREEMENT


 


 


DATED AUGUST 20,
2004


 


 


OTTO (GMBH & CO KG)


 


OTTO FREIZEIT UND
TOURISTIK GMBH


 


TRAVELOCITY.COM LP


 


TRAVELOCITY GMBH


 


KOMMANDITGESELLSCHAFT
TRAVEL OVERLAND FLUGREISEN GMBH & CO.


 


TRAVELOCITY HOLDINGS
GMBH


 





















 


CONTENTS


 


	
  Clause

  	
   

  	
  Page

  
	
  1.

  	
  RESTRUCTURING OF 2001
  JOINT VENTURE AND SALE OF THE BUSINESS IN FRANCE, UK AND SCANDINAVIA

  	
  2

  
	
  2.

  	
  FUNDING ARRANGEMENTS

  	
  2

  
	
  3.

  	
  CONDITION PRECEDENTS

  	
  3

  
	
  4.

  	
  CLOSING

  	
  4

  
	
  5.

  	
  RESCISSION

  	
  5

  
	
  6.

  	
  INTERIM PERIOD

  	
  5

  
	
  7.

  	
  FURTHER UNDERTAKINGS

  	
  6

  
	
  8.

  	
  FURTHER ASSURANCE

  	
  6

  
	
  9.

  	
  STATEMENTS OF THE PARTIES

  	
  7

  
	
  10.

  	
  CONFIDENTIALITY

  	
  7

  
	
  11.

  	
  COSTS AND EXPENSES

  	
  7

  
	
  12.

  	
  FINAL PROVISIONS

  	
  7

  



 





















 


THIS AGREEMENT
is made in Hamburg the 20. August 2004


 


BETWEEN


 


(1)                                  Otto (GmbH & Co KG) (OTTO) having its corporate seat in Hamburg, Germany,
registered with the commercial register of the local court of Hamburg under
HRA 62024; and


 


(2)                                  Otto Freizeit und Touristik
GmbH (OFT) having its corporate seat in
Hamburg, Germany, registered with the commercial register of the local court of
Hamburg under HRB 53725; and


 


(3)                                  Travelocity.com LP (Travelocity) having its corporate seat in Southlake, Texas,
USA; and


 


(4)                                  Travelocity GmbH (TVL GmbH), having its corporate seat in Munich, Germany,
registered with the commercial register of the local court of Munich under HRB
141895; and


 


(5)                                  Kommanditgesellschaft TRAVEL
OVERLAND Flugreisen GmbH & Co (TEU Partnership), having its corporate seat in Munich,
Germany, registered with the commercial register of the local court of Munich
under HRA 70203; and


 


(6)                                  Travelocity Holdings GmbH (TEU) having its corporate seat in Munich, Germany,
registered with the commercial register of the local court of Munich under HRB
141917.


 


OTTO, OFT,
Travelocity, TVL GmbH, TEU Partnership and TEU are hereinafter also referred to
as Party or together as Parties.


 


WHEREAS:


 


(A)                              Travelocity, OFT and OTTO
entered into a joint venture agreement on 7 September 2001 (Deed No.
1703/2001 of the notary Dr. Axel Pfeifer, Hamburg) (the 2001 Joint
Venture Agreement). Under the 2001 Joint Venture Agreement
Travelocity and OFT agreed to conduct an online and offline travel services
business (the 2001 Joint Venture).


 


(B)                                Under the 2001 Joint Venture
TEU Partnership conducts business in Germany, France, United Kingdom, and Scandinavia.
Whereas the business in Germany is carried out by TEU Partnership directly, TEU
Partnership currently operates its business in France through VFinances SAS and
Travelocity France SAS and its subsidiaries, in the United Kingdom through
Travelocity.co.uk Ltd (Travelocity UK),
and in Scandinavia through Resfeber Sverige AB (Travelocity
Scandinavia) and its subsidiaries (the businesses operated in
France, the United Kingdom and Scandinavia are hereinafter referred to as the Business). Each of Travelocity France, Travelocity UK and
Travelocity Scandinavia are wholly owned subsidiaries of TEU. TEU is a wholly
owned subsidiary of TEU Partnership.


 


(C)                                The business in France is
currently being reorganised with the effect that it is envisaged that as of Closing
VFinances SAS will have been merged into the current subsidiary of VFinances
SAS, Usit Connections SAS. Consequently, the term Travelocity
France shall mean Usit Connections SAS and Travelocity France SAS
unless the reorganisation in France is not completed until Closing in which
case the term Travelocity France shall mean VFinances SAS and Travelocity
France SAS.


 


(D)                               Travelocity and OFT intend to
restructure their 2001 Joint Venture with the ultimate effect that TVL GmbH
will acquire the Business and Travelocity and OFT will limit the activities of
the 2001 Joint Venture from Europe (including Russia, Turkey and any country a
portion of which is west of the Dardanelle) to the territory of Germany.


 


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NOW IT IS HEREBY AGREED as follows:


 


1.                                      RESTRUCTURING OF 2001 JOINT VENTURE AND SALE OF THE BUSINESS IN FRANCE, UK AND SCANDINAVIA


 


1.1                                 The Parties agree on the
following steps to restructure the 2001 Joint Venture and to transfer the
Business to TVL GmbH:


 


(a)                                  TEU shall acquire all shares
in NewCo, having its corporate seat in Munich, Germany, registered with the
commercial register of the local court of Munich under HRB 152122 (NewCo).


 


(b)                                 TEU shall contribute all
shares in Travelocity France, Travelocity UK and Travelocity Scandinavia to the
capital reserves of NewCo.


 


(c)                                  TEU shall sell its
shareholding in NewCo to TEU Partnership with the consideration being in the
form of debt.


 


(d)                                 TEU Partnership shall
distribute the shares in NewCo equally to its sole shareholders OFT and TVL
GmbH.


 


(e)                                  OFT shall sell its 50%
shareholding in NewCo to TVL GmbH.


 


(f)                                    OTTO, OFT, Travelocity and TEU
Partnership shall enter into a new joint venture agreement.


 


(g)                                 Travelocity and TEU
Partnership shall amend the Travelocity Brand License and Usage Agreement
entered into between those parties on 7 September 2001.


 


(h)                                 Travelocity and TEU
Partnership shall amend the Travelocity License and Information Technology
Services Agreement and the Webhosting Agreement entered into between those
parties on 7 September 2001.


 


(i)                                     TEU Partnership, OFT and
Travelocity, amongst others, shall enter into a transition and ongoing services
agreement.


 


(j)                                     TEU shall be merged into TEU
Partnership.


 


1.2                                 Exhibit
1.2
contains charts illustrating the above restructuring process.


 


2.                                      FUNDING ARRANGEMENTS


 


2.1                                 The funding for the Business
from 1 July 2004 onwards shall be done by Travelocity alone. Travelocity
and OFT, however, shall be liable for all costs, expenses and accruals for the
Business through 30 June 2004.


 


2.2                                 In the event that Closing does
not occur by 1 January 2005 or any other day the Parties mutually agree
upon or the Parties agree not to further proceed with the transactions
contemplated in this Agreement, OFT shall be obliged to fund the Business, as
shall Travelocity in an equal amount, and to reimburse OFT’s share of funding
provided by Travelocity for the Business during the period from 1 July 2004
until the date OFT resumes funding (i.e., for the avoidance of doubt OFT would
have to reimburse Travelocity 50% of the funding provided by Travelocity for
the Business during the above period).


 


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2.3                                 OFT shall contribute to TEU
Partnership its 50% share (in the amount of Euro 3,600,000 (in words: three
million six hundred thousand Euros)) in the funding of the acquisition of
VFinances SAS and its subsidiaries (Boomerang) in
France prior to the Closing Date.


 


2.4                                 OFT shall contribute its 50%
share (in the amount of Euro 2,200,000 (in words two million two hundred
thousand Euros)) of the working capital related funding into TEU (relating to
Boomerang) prior to the Closing Date.


 


2.5                                 OFT, TVL GmbH, TEU Partnership
and TEU shall procure that TEU shall use the financing under 2.3 and 2.4 to repay
its outstanding liabilities to Travelocity.


 


2.6                                 Travelocity shall allow the
remainder of the payments due under the framework agreement between TEU
Partnership, OFT and TVL GmbH, dated 24 March 2004 (Deed No. 443/2004 of
the notary Dr. Axel Pfeifer, Hamburg) (totalling Euro 7,671,118.06 (in words:
seven million six hundred seventy one thousand one hundred eighteen point zero
six Euros) to be fully utilised in Germany for the benefit of TEU Partnership.


 


2.7                                 OTTO, OFT, and Travelocity
understand that there are various amounts outstanding or owed by the
subsidiaries of TEU to TEU Partnership (either directly or via TEU). All such
amounts to the extent they relate to any period prior to 30 June 2004
shall be settled prior to the Closing Date by funding provided by TEU
Partnership in the manner previously provided. Furthermore, OTTO, OFT, and
Travelocity understand that there is an additional working capital requirement
of the subsidiaries of TEU for any period prior to 30 June 2004.
Therefore, funding of Euro 5,718,000 (in words: five million seven hundred
eighteen thousand Euros) shall be made prior to the Closing Date by TEU
Partnership to meet working capital requirements of the subsidiaries of TEU and
repayment of outstanding inter company amounts. In respect of this funding Euro
4,354,000 (in words: four million three hundred fifty four thousand Euros)
shall be used to repay inter company indebtedness to TEU Partnership. The
calculation of the working capital and repayment amounts outstanding or owed on
an inter company basis is attached hereto as Appendix 2.7.


 


2.8                                 It is understood that from 1 July 2004
till 31 December 2004 both OFT and Travelocity will still continue to make
the agreed contributions for TEU Partnership as per the investment plan but only
to the extent that it pertains to the German business (41.2%). This means that
OFT and Travelocity will each make equal capital contributions towards the
funding of TEU Partnership of Euro 1,240,000 (in words: one million two hundred
forty thousand Euros) (July 2004 contribution) and Euro 890,000 (in words:
eight hundred ninety thousand Euros)  (October 2004
contribution); however in view of the transactions set out in this Agreement
both contributions shall be made by the end of October 2004. Furthermore,
without prejudice to any rights and obligations of the parties of the new joint
venture agreement (see Appendix 4.4(g)), given the extra funding in Germany
arising from the Travelchannel acquisition (as described above), no additional
funding will be required until after 30 June 2006 by either OFT or
Travelocity absent an extraordinary transaction or market development for which
the spend is mutually agreed by the parties.


 


3.                                      CONDITIONS PRECEDENT


 


The obligation
of the Parties to procure the actions set out under clause 4.3 to 4.5 (Closing) shall be conditional upon the following conditions
precedent (aufschiebende Bedingungen) having been
fulfilled unless, with respect to the condition under (b), Travelocity waives
such conditions:


 


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(a)                                  The cartel authorities of
Germany and Norway have informed OFT and Travelocity that they will not
interfere with the proposed transactions substantially as contemplated herein
or the time for any objections has elapsed.


 


(b)                                 The payments due prior to the
Closing Date under clause 2.3, 2.4 and 2.7 have been made and, insofar as the
payments under 2.3 and 2.4 are concerned, TEU has used such funds to repay its
liabilities to Travelocity.


 


4.                                      CLOSING


 


4.1                                 Closing will occur within 10
business days after the last condition precedent (see clause 3) has been
fulfilled but in no event prior to 1 October 2004 or on such other date as
agreed upon between OTTO and Travelocity (the Closing Date).


 


4.2                                 Closing will take place at the
offices of Allen & Overy LLP in Frankfurt or such other place as agreed
upon between OTTO and Travelocity.


 


4.3                                 As soon as possible after the
last condition precedent (see clause 3) has been fulfilled but in any event
prior to the action under clause 4.4(a) having been taken, TEU shall procure
that TEU and Mössbauer Lucky Start GmbH, Munich, sign a notarial deed
(including a share purchase agreement and a shareholder’s resolution of NewCo
as to the change of managing directors of NewCo and the change of the name and
the object of NewCo) in the form as attached hereto as Appendix 4.3
and TEU shall file an application for registration of the change of name,
object and managing directors with the commercial register.


 


4.4                                 At the Closing, the Parties
shall take the following actions, or shall procure that their relevant
subsidiaries take the following actions, in the order as set out below:


 


(a)                                  TEU Partnership in its
position as sole shareholder of TEU shall pass a shareholder’s resolution in
the form as attached hereto as Appendix 4.4(a).


 


(b)                                 TEU and NewCo shall enter into
a share transfer agreement in the form as attached hereto as Appendix 4.4(b).


 


(c)                                  TEU and TEU Partnership shall
enter into a share purchase and transfer agreement in the form as attached hereto
as Appendix 4.4(c).


 


(d)                                 OFT and TVL GmbH, in their
position as sole shareholders of TEU Partnership, shall pass a shareholder’s
resolution in the form as attached hereto as Appendix
4.4(d).


 


(e)                                  TEU Partnership, OFT and TVL
GmbH shall enter into a share transfer agreement in the form as attached hereto
as Appendix 4.4(e).


 


(f)                                    OFT and TVL GmbH shall enter
into a share purchase and transfer agreement in the form as attached hereto as Appendix 4.4(f).


 


(g)                                 OTTO, OFT, Travelocity and TEU
Partnership shall enter into the amended joint venture agreement in the form as
attached hereto as Appendix 4.4(g).


 


(h)                                 Travelocity and TEU
Partnership shall enter into the amendment to the Travelocity brand license and
usage agreement, in the form as attached hereto as Appendix
4.4(h).


 


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(i)                                     Travelocity and TEU
Partnership shall enter into the amendment to the Travelocity license and
information technology services agreement and webhosting agreement in the form
as attached hereto as Appendix 4.4(i).


 


(j)                                     TEU Partnership, OFT and
Travelocity, amongst others, shall enter into a transition and ongoing services
agreement in the form as attached hereto as Appendix
4.4(j).


 


4.5                                 On the Closing Date, the
Parties shall sign and deliver all such other documents and instruments, and
shall take all such actions (in particular all actions the Parties are obliged
to take under the documents and agreements attached hereto as Appendices 4.4(a)
through 4.4(j)) as may be necessary or advisable to perfect the Closing, and to
effect the purposes of this Agreement. 
All Parties hereby undertake to act in good faith and give full support
to the achievement of the Closing.


 


4.6                                 As soon as practicable after
the Closing Date, TEU and TEU Partnership shall enter into a merger agreement
according to which TEU would be merged into TEU Partnership in the form as
attached hereto as Appendix 4.6.


 


4.7                                 As soon as practicable after
the Closing Date, NewCo and TVL GmbH shall enter into a merger agreement according
to which NewCo would be merged into TVL GmbH in the form as attached hereto as Appendix 4.7.


 


5.                                      RESCISSION


 


5.1                                 Travelocity shall have the
right to rescind this Agreement (Rücktritt) with
effect for and against all Parties of this Agreement by giving notice to OTTO
in writing (registered mail required) if prior to the Closing a Material
Adverse Change occurs.


 


5.2                                 For the purpose of this clause
a Material Adverse Change is any change,
circumstance, event or effect (“Events”) that with respect to TEU Partnership
or any of its subsidiaries or their respective businesses – individually or in
aggregate with other adverse changes, circumstances, events or effects – has,
or may reasonably be expected to have in the view of Travelocity, a material
adverse effect on the financial position, results of operations or business
operations and prospects of TEU Partnership and/or its subsidiaries. It is
understood that such Events by way of illustration or example would be events
at least comparable with the events of 11 September 2001 or a SARS
outbreak if it occurred in Europe.


 


6.                                      INTERIM PERIOD


 


6.1                                 Between the
day of signing of this Agreement (the Signing Date) and the Closing Date
OTTO, OFT, TVL GmbH and Travelocity shall:


 


(a)                                  ensure that TEU Partnership
and its subsidiaries conduct their respective businesses only in the ordinary
and usual course and in accordance with past practices, which are in accordance
with the law, prudent and customary under the circumstances;


 


(b)                                 consult fully with each other
in relation to any matters which may have a material effect upon the businesses
of TEU Partnership and/or its subsidiaries;


 


(c)                                  make prompt disclosure, and
shall ensure that TEU Partnership and its subsidiaries make prompt disclosure,
of any other fact or circumstance which comes to the notice of any of them
which has, or may have, an adverse effect upon the financial position, results
of operations or business operations and prospects of TEU Partnership and/or
its subsidiaries;


 


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(d)                                 make prompt disclosure, and
shall ensure that TEU Partnership and its subsidiaries make prompt disclosure,
of all relevant information which comes to the notice of any of them in
relation to any fact or matter (whether existing on or before the Signing Date
or arising afterwards) which may constitute a breach of any of the
representations and warranties or any other provision of the share purchase
agreement attached hereto as Appendix 4.4(f); and


 


(e)                                  not allow or procure any act
or omission which may constitute a breach of any of the representations and
warranties or any other provision of, or is otherwise inconsistent with this
Agreement, the agreements and documents attached hereto or the consummation of
the transactions contemplated herein.


 


6.2                                 Travelocity and OFT will agree
on appropriate instructions to the management of TEU Partnership to regulate
the activities of TEU Partnership with respect to its subsidiaries during the
period from the Signing Date until the Closing Date to the intent that both
Travelocity and OFT have a greater degree of visibility, approval and control
of activities of TEU Partnership prior to the Closing Date.


 


7.                                      FURTHER UNDERTAKINGS


 


7.1                                 The Parties acknowledge that
certain guarantees of OFT in favour of the Business (such as IATA bonding)
shall be replaced as soon as reasonable practicable after the Closing Date by
Travelocity. Guarantees due to expire on or before 31 December 2004 need
not be replaced under this provision provided always Travelocity shall indemnify
OFT from any costs incurred in connection with, and liabilities suffered under,
the guarantees from the Closing Date onwards.


 


7.2                                 OTTO undertakes to use its
best efforts to ensure that the Business will benefit after the Closing Date
from any OTTO group agreement the benefit of which is currently enjoyed by the
Business.


 


7.3                                 In the event that the
reorganisation of the French business of TEU Partnership is not completed until
Closing, the Parties agree to amend all documents due for signing on the
Closing Date as appropriate in order to reflect the then current structure of
the French business.


 


8.                                      FURTHER ASSURANCE


 


OFT, TVL GmbH,
TEU Partnership and TEU shall use their best efforts to achieve the following
tasks, to the extent possible, prior to the Closing Date:


 


(a)                                  Update of the share register
of Travelocity Scandinavia so that the company register correctly reflects the
actual shareholding of TEU;


 


(b)                                 Undertake all necessary steps
to replace potentially existing share certificates, or as the case may be,
issue new share certificates of Travelocity Scandinavia and their subsidiaries
reflecting the actual shareholding of TEU or Travelocity Scandinavia,
respectively;


 


(c)                                  Unless the floating charge
certificate with respect to Box Office AB (registered in the amount of SEK
250,000) is found, initiate a procedure of mortifying and replacing such lost
certificate in accordance with the Swedish Act on Mortification of Instruments;
and


 


(d)                                 Ensure that any benefits (e.g.
claims under the guarantees) under the Share Purchase Agreement between TEU and
Laurent, Pascal and Gabriel Villa, dated 15 March 2004, regarding the
acquisition of VFinances SAS and it subsidiaries have been transferred to TVL


 


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GmbH, with such transfer being made under the condition precedent of
having received cartel clearance in accordance with subsection 3(a) above.


 


9.                                      STATEMENTS OF THE PARTIES


 


All Parties to
this Agreement have all requisite power and authority to execute and perform
this Agreement and carry out the transactions contemplated hereunder and this
Agreement, when executed, will constitute a valid and binding obligation of the
Parties enforceable in accordance with its terms. Neither this Agreement nor
any term hereof or, in whole or in part, the transactions contemplated in this
Agreement, may be declared null and void or ineffective for a reason attributable
to a Party to this Agreement.


 


10.                               CONFIDENTIALITY


 


10.1                           The contents of this
Agreement, its existence and all matters relating to this Agreement as well as
the negotiations relating to this Agreement shall be held confidential, and
each Party agrees not to divulge any such information to any person without the
prior written approval of either OTTO or Travelocity (as the case may be), such
approval not to be unreasonably withheld or delayed. Either Party may, without
such approval, announce or disclose such matters or information if required to
do so by law or the rules of any relevant stock exchange or governmental or
other regulatory or supervisory body or authority of competent jurisdiction to
whose rules the Party making the announcement or disclosure is subject,
provided always that the Party making such announcement or disclosure shall
consult with the other Parties in advance as to the form, contents and timing
of such announcement or disclosure.


 


10.2                           OTTO and Travelocity intend to
announce the transactions contemplated herein on a date mutually agreed by
releasing a press release substantially in the form attached hereto as Appendix 10.2.


 


11.                               COSTS AND EXPENSES


 


Whether or not
the transactions contemplated by this Agreement are consummated, OFT and
Travelocity shall each pay its own respective costs and expenses, and the
related fees and expenses of its counsel and accountants and other
representatives, incurred in connection with the transactions contemplated by
this Agreement. Travelocity and OFT shall equally bear the fees raised by the
cartel authorities in connection with the merger control clearance, the costs
of Travelocity’s advisers who will prepare the applications to the appropriate
cartel authorities, as well as all notary fees incurred in connection with the
transactions contemplated herein as well as stamp duties.


 


12.                               FINAL PROVISIONS


 


12.1                           Changes and supplements to
this agreement as well as the waiver of rights under this agreement must be in
writing unless notarisation is required. This is true also for changes, or the
cancellation, of this clause.


 


12.2                           Should a provision of this
Agreement or a provision which has become part of the Agreement later on be or
become ineffective or invalid (undurchführbar oder
unwirksam) in whole or in part or should the Agreement contain a
gap, then this shall not effect the validity of the remaining provisions. In
lieu of such ineffective or invalid provision, or in order to fill in such gap,
the Parties shall agree with retro-active effect such effective provision which
legally and economically comes as close as possible to what the Parties
intended to agree upon or, taking


 


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into account the ratio of this Agreement, would have agreed if they
would been aware of such issue at the time of signing this Agreement.


 


12.3                           All notices and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered
personally or by registered mail or courier, or faxed (return receipt
requested), and addressed as follows:


 


If to OTTO,
OFT, TEU Partnership or TEU:


 


Otto (GmbH
& Co KG)

Attn.: Dr. Michael E. Crüsemann

Wandsbeker Straße 3 - 7 

22172 Hamburg, Germany


 


With a copy
to:


 


Otto (GmbH
& Co KG)

Attn.: Head of Legal Department

Wandsbeker Straße 3 - 7 

22172 Hamburg, Germany


 


and


 


Otto Freizeit und Touristik GmbH

Attn.: Christoph Rische

Osterbekstraße 90a

22083 Hamburg, Germany


 


If to
Travelocity or TVL GmbH:


 


Travelocity.com
LP

Attn.: President

3150 Sabre Drive

Southlake, Texas 76092, U.S.A.


 


With a copy
to:


 


Travelocity.com
LP

Attn.:General Counsel

3150 Sabre Drive

Southlake, Texas 76092, USA


 


12.4                           This Agreement is governed by
German law. Exclusive place of jurisdiction is Frankfurt am Main.


 


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