Exhibit 10.5


 


SHARE PURCHASE AND TRANSFER AGREEMENT


 


 


DATED OCTOBER 01, 2004


 


 


OTTO FREIZEIT UND TOURISTIK GMBH


 


TRAVELOCITY GMBH


 


 


Allen & Overy LLP


 


Frankfurt


 





















 


CONTENTS


 


	
  Clause

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  INTERPRETATION

  	
  2

  
	
  2.

  	
   

  	
  SALE AND
  PURCHASE

  	
  4

  
	
  3.

  	
   

  	
  STATEMENTS
  OF THE SELLER

  	
  5

  
	
  4.

  	
   

  	
  CLAIMS UNDER THE
  SELLER’S STATEMENTS

  	
  11

  
	
  5.

  	
   

  	
  INDEMNIFICATION FOR TAXES

  	
  11

  
	
  6.

  	
   

  	
  LIMITATIONS

  	
  12

  
	
  7.

  	
   

  	
  CLOSING
  ACCOUNTS

  	
  13

  
	
  8.

  	
   

  	
  NON-COMPETE

  	
  13

  
	
  9.

  	
   

  	
  CONFIDENTIALITY

  	
  13

  
	
  10.

  	
   

  	
  MISCELLANEOUS

  	
  13

  



 





















 


THIS AGREEMENT
is made in Hamburg on October 01, 2004


 


BETWEEN


 


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


 


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


 


OFT and TVL
GmbH are hereinafter also referred to as Party and
together as the Parties.


 


WHEREAS:


 


(A)                              On August 20, 2004, Otto (GmbH
& Co KG) (OTTO), OFT, Travelocity.com LP (TVLY) and TVL GmbH, amongst others, entered into the master
agreement (deed no. 1285/2004 of the notary Dr.irur. Axel Pfeifer, Hamburg)
(the Master Agreement).


 


(B)                                Under the Master Agreement,
the parties to such agreement agreed on a restructuring of the joint venture
activities of OFT, OTTO and TVLY conducted under the joint venture agreement
between OFT, TVLY and OTTO dated 7 September 2001 (Deed No. 1703/2001 of the
notary Dr. Axel Pfeifer, Hamburg).


 


(C)                                Until the date of this
Agreement the joint venture activities were conducted through
Kommanditgesellschaft TRAVEL OVERLAND Flugreisen GmbH & Co, Munich,
registered with the commercial register of the local court in Munich under HRA
70203 (TEU Partnership) and its subsidiaries.
In more detail, TEU Partnership held 100% of the shares in Travelocity Holdings
GmbH, Munich, registered with the commercial register of the local court in
Munich under HRB 141917 (TEU). TEU held
100% of the shares in the following companies:


 


•                  Travelocity.co.uk Ltd., a
company incorporated in England with registration number 03007698, and with its
registered address at Western House, Cambridge Road, Stanstead, Essex, CM2 4
8BZ;


 


•                  Resfeber Sverige AB, a company
incorporated in Sweden with company registration number 556551-8957 and with
its registered address at Kungsgatan 38, 3 tr, 111 35 Stockholm, Sweden;


 


•                  Usit Connections SAS, a
company incorporated in France and registered with the Nice
Commercial Court under the number 702 054 974 (1984 B 00632) with its registered address at
455 Promenada des Anglais – Immeuble Arénice, 06299 Nice Cedex 03; and


 


•                  Travelocity France SAS, a company incorporated
in France with registration number 441 687 928 RCS Paris, and with registered address at 77 rue La Boëtie,
75008 Paris.


 


Resfeber
Sverige AB holds 100 % of the shares in the following companies:


 


1





















 


•                  Skandinavisk Reisefeber AS,
Oslo, Norway;


 


•                  Rejsefeber ApS, Copenhagen,
Denmark;


 


•                  Box Office AB, Stockholm,
Sweden; and


 


•                  Resfeber Skandinavien AB,
Stockholm, Sweden.


 


Usit
Connections SAS holds 100 % of the shares in the following company:


 


•                  Boomerang SAS, Nice Cedex,
France.


 


(D)                               As part of the restructuring process,
as of the date of this Agreement TEU acquired 100% of the shares in [NewCo],
Munich, registered with the commercial register of the local court in Munich
under HRB 152122, having a registered share capital (Stammkapital)
in the amount of Euro 25,000 (NewCo).
Subsequently, TEU transferred all shares in Travelocity.co.uk Ltd, Resfeber
Sverige AB, Usit Connections SAS and Travelocity France SAS to NewCo.
Thereafter, TEU Partnership acquired all shares in NewCo by TEU and,
subsequently, each of OFT and TVL GmbH acquired by way of withdrawal (Entnahme) from TEU Partnership 50% of the shares in NewCo.


 


(E)                                 In accordance with clause
4.4(f) of the Master Agreement, OFT wishes to sell and transfer, and TVL GmbH
wishes to acquire, OFT’s 50% shareholding in NewCo.


 


NOW IT IS HEREBY AGREED as follows:


 


1.                                      INTERPRETATION


 


1.1                                 The terms defined in the following
definitions shall have the meaning ascribed to them wherever used in this
Agreement unless otherwise defined in the respective Clause.


 


Affiliate means any corporation,
partnership or other legal entity in which one of the Parties owns, directly or
indirectly, an interest that provides it with more than 50 % of the ownership
voting rights.


 


Agreement means this Share Purchase and
Transfer Agreement.


 


Boomerang means VFinances and its
subsidiaries at the date of the Master Agreement.


 


Boomerang SAS means Boomerang SAS, Nice
Cedex, France, a company which has been merged into Usit Connections SAS.


 


Clause means a clause of this
Agreement.


 


Closing Accounts means the financial
statements as of 30 September 2004 of the Subsidiaries the Parties agreed to
draw up in accordance with Clause 7.


 


Company means NewCo.


 


Euribor means the percentage rate per
annum determined by the Banking Federation of the European Union for a
three-month period, as defined under http://www.euribor.org.


 


Exhibit means any annex, appendix,
attachment, exhibit or schedule to this Agreement.


 


2





















 


Information Technology means all
computer systems, communications systems, software and hardware which – unless
the context expressly provides otherwise – are owned by or used by, or have
been licensed to the Subsidiaries.


 


Intellectual Property Rights means all
intellectual property rights and all applications for intellectual property
rights, including in particular (without limitation) all patents, copyrights,
rights to databases, trade marks, trade names, registered patterns and designs,
topographies, Know-how and all inventions as well as domain names.


 


Investment Plan means the investment plan
agreed by the shareholders of TEU Partnership in November 2003 with respect to
the funding of their joint venture activities.


 


KPMG means KPMG Deutsche Treuhand
Aktiengesellschaft, Wirtschaftsprüfungsge-sellschaft,
Steuerberatungsgesellschaft, Germany.


 


Management Accounts means the monthly accounts
prepared for controlling purposes setting out profit and loss figures drawn up
by the management of the Subsidiaries. The Management Accounts for June 2004
are attached hereto as Attachment 1.1.


 


New Joint Venture Agreement means the amended and
restated joint venture agreement between OFT, OTTO, Travelocity and TVL GmbH,
dated the day of this Agreement (Deed No. [•] of the notary [•], [•]).


 


Pan-European Technology Platform has the meaning ascribed to
it in section 1.1 of the Amendment to Travelocity License and Information
Technology Services Agreement and Webhosting Agreement.


 


Share means the share in the nominal
amount of Euro 12,500 in NewCo held by OFT.


 


Signing Date means the date of this
Agreement.


 


Statement(s) has the meaning scribed to it
in Clause 3.1(a).


 


Subsidiaries means Travelocity.co.uk Ltd.,
Resfeber Sverige AB, Travelocity France SAS and Usit Connections SAS and their
relevant subsidiaries as set out in the recitals under (C).


 


Taxes for the purpose of this
Agreement shall mean all forms of taxation and other public duties or levies or
social security contributions, grants, subsidies, customs and all interest,
fines and similar amounts in connection with any of them.


 


Travelchannel means travelchannel GmbH,
Hamburg, formerly registered with the commercial register of Hamburg under HRB
73242, having been merged into TEU Partnership effective 11 June 2004.


 


Travelchannel Acquisition
Agreement
means 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).


 


VDistribution means VDistribution SRL, Nice
Cedex, France, a company which has been merged into Usit Connections SAS.


 


VFinances means VFinances SAS, Nice
Cedex, France, a company which has been merged into Usit Connections SAS.


 


3





















 


VFinances Acquisition Agreement means the share purchase
agreement between TEU, Laurent Villa, Pascal Villa and Gabriel Villa, dated 4
March 2004.


 


1.2                                 Unless this Agreement provides for separate
definitions for the singular and the plural (e.g. Company/Companies), the
singular shall include the plural and vice versa and
words denoting a person shall include, unless otherwise stated, that person’s
legal successors or assignees.


 


1.3                                 The headings in this Agreement are for
convenience only and do not affect its interpretation.


 


1.4                                 Any Exhibit to this Agreement shall take
effect as if set out in this Agreement and references to this Agreement shall
include its Exhibits.


 


2.                                      SALE AND PURCHASE


 


2.1                               Sale and Purchase and Conditional Transfer
of the Share


 


(a)                                  The Seller hereby sells and transfers the
Share to the Buyer and the Buyer hereby purchases and agrees to acquire the
Share. The transfer of the Share (Übereignung)
shall be subject to the condition (aufschiebende Bedingung)
of the payment of the Purchase Price in accordance with Clause 2.2. The Share
is sold and transferred with all rights and entitlements relating thereto.


 


(b)                                 The Share is transferred with economic
effect as of the date of this Agreement.


 


2.2                               Purchase Price


 


(a)                                  The Buyer shall pay within one day after
the Signing Date in immediately available funds:


 


Euro
26,570,000 (twenty-six million five hundred seventy thousand euros) to
Seller  into the following account of the
Seller:


 


	
  Bank:

  	
   

  	
  [•]

  
	
  Account
  owner:

  	
   

  	
  [•]

  
	
  Account
  number:

  	
   

  	
  [•]

  
	
  Sort code:

  	
   

  	
  [•]

  
	
  SWIFT Code:

  	
   

  	
  [•]

  



 


The
above amount is hereinafter together referred to as Purchase
Price.


 


(b)                                 Any monies payable under this Agreement but
not paid when due shall bear interest at a rate of 2 (two) percentage points
above Euribor from the date they are due until payment. The Parties understand
that the Purchase Price is exempted from § 4 no. 8(f) of the German VAT Act (Umsatzsteuergesetz).


 


(c)                                  The Purchase Price was calculated on the
following assumptions:


 


(i)                                     OFT has contributed its share (in the
amount of Euro 4,200,000 (in words: four million two hundred thousand euros))
of the funding contributions as per the Investment Plan to TEU Partnership for
onward transmission to Travelocity.co.uk Ltd and Resfeber Sverige AB;


 


4





















 


(ii)                                  OFT has contributed 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 Boomerang in France;


 


(iii)                               OFT has contributed 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) with TEU
having used both contributions under (ii) and (iii) to repay its liabilities to
Travelocity;


 


(iv)                              Travelocity has agreed to allow the
remainder of the payments due under the Travelchannel Acquisition Agreement
(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 utilized in
Germany for the benefit of TEU Partnership;


 


(v)                                 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 the Master 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, given the
extra funding in Germany arising from the Travelchannel acquisition, 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;


 


(vi)                              The funding of the Subsidiaries from 1 July
2004 onwards shall be done by TVLY alone. TVLY and OFT, however, shall be
liable for all costs, expenses and accruals for the Subsidiaries through 30
June 2004;


 


(vii)                           Travelocity shall provide the Pan-European
Technology Platform as defined and in accordance with the provisions of the
Technology License Agreement.


 


3.                                      STATEMENTS OF THE SELLER


 


3.1                               General


 


(a)                                  The Seller hereby represents to the Buyer
by way of an independent obligation (selbständige Verpflichtung)
within the meaning of § 311 of the German Civil Code (Bürgerliches
Gesetzbuch) that each of the statements (Erklärungen)
contained in this Clause 3 (referred to as the Statements
and each a Statement) is true, accurate,
complete and not misleading in every respect as of the Signing Date except as
expressly disclosed to the Buyer in this Agreement or in the Exhibits to the
relevant Statements, provided always that such disclosure is made in a clear
and fair way disclosing the relevant issue.


 


(b)                                 The Seller and the Buyer further agree
that:


 


(i)                                     all claims against the Seller in respect of
the Statements shall be subject to the provisions set forth in Clause 6 only;
and


 


5





















 


(ii)                                  in no circumstance, shall any Statements
set out in Clause 3 and/or remedies relating to such Statements set out in
Clause 4 be deemed or construed as a guarantee (Garantie),
whether a derivative guarantee (unselbständige  Garantie) or a stand-alone guarantee (selbständige
Garantie) within the meaning of § 443(1), § 444 of the
German Civil Code (Bürgerliches Gesetzbuch).


 


3.2                               Corporate Matters


 


(a)                                  The statements in
the Recitals of this Agreement with respect to the Seller and the Subsidiaries
are complete and correct.


 


(b)                                 The Seller is the
legal and beneficial owner of the Share, which is free of any encumbrances or
any other rights for the benefit of third parties. The Seller has the right and
the power to freely dispose of the Share, and no consent of any third party
would be required for such disposal, and such disposal would not violate the
right of any third party.


 


(c)                                  The Share is fully paid up and
no repayment of capital contributions has been made, neither openly nor
concealed.


 


(d)                                 The Subsidiaries
are limited liability companies duly organized under the laws of their relevant
jurisdictions and validly existing in accordance with the excerpts of the
commercial register (or the relevant comparable registers in the various
jurisdictions) and the articles of association all of which have been made
available by the Seller to the Buyer prior to the Signing Date. There are no
shareholder resolutions amending the articles of association which have not yet
been registered in the commercial register (or the relevant comparable
registers in the various jurisdictions) nor are there any side agreements
relating to the constitution and organization of the Subsidiaries.


 


(e)                                  NewCo is the
legal and beneficial owner of the shares in Travelocity.co.uk Ltd, Resfeber Sverige AB, Travelocity
France SAS and Usit Connections SAS which are free of any
encumbrances or any other rights for the benefit of third parties. Usit
Connections SAS is the legal and beneficial owner of the shares in Boomerang SAS which are free of
any encumbrances or any other rights for the benefit of third parties. Resfeber
Sverige AB is the legal and beneficial owner of the shares in Skandinavisk Reisefeber AS,
Oslo, Norway, Rejsefeber ApS, Copenhagen, Denmark, Box Office AB, Stockholm,
Sweden, and Resfeber Skandinavien AB, Stockholm, Sweden, which are free
of any encumbrances or any other rights for the benefit of third parties.


 


(f)                                    The shares in the Subsidiaries
are fully paid up and no repayment of capital contributions has been made, neither
openly nor concealed.


 


(g)                                 The Subsidiaries have no
participation in other businesses and are under no obligation to acquire such
participation.


 


(h)                                 The Subsidiaries
have in the past not distributed any constructive dividends (verdeckte Gewinnausschüttungen).


 


(i)                                     Neither against the Seller nor
the Company nor the Subsidiaries any bankruptcy or composition proceedings have
been initiated nor are there any circumstances which would justify the
initiation of such proceedings in the future.


 


6





















 


3.3                               Financial Statements/Management
Accounts/Closing Accounts


 


(a)                                  The annual
statements (including balance sheet, profit and loss account and notes) and
management reports of (i) the Subsidiaries (except for Usit Connections SAS)
for the fiscal year 2003 and (ii) Usit Connections SAS, VFinances,
VDistribution and Boomerang SAS as of 31 March 2004 (the Annual
Statements) have been drawn-up in accordance with the relevant
applicable generally accepted accounting principles and present a true and fair
view of the assets, finance and results situation of the Subsidiaries which is
in accordance with the actual circumstances. To the extent that there are
capitalization options no capitalization has taken place. To the extent that
there are options to include items in the liabilities such items have been
included. All statutorily permitted depreciations have been taken. All
statutorily permitted accruals have been taken. At the Signing Date the Subsidiaries
have with exception of liabilities resulting from pending contractual
relationships which are not required to be shown on a balance sheet no liabilities
other than those shown in the Closing Accounts or covered by accruals. To the
extent that contingent liabilities have not to be included in liabilities they
have been reflected as below-the-line items on the balance sheet (including
liabilities resulting from the issue of comfort letters).


 


(b)                                 The Management Accounts for the period
January 2004 through June 2004 have been prepared by the management with the
due care of a prudent business person and present fairly and properly the state
of affairs of the Subsidiaries as of the date of the respective Management
Accounts.


 


(c)                                  The Closing Accounts (including
balance sheet, profit and loss account and notes) have been drawn-up in
accordance with the relevant applicable generally accepted accounting
principles and present a true and fair view of the assets, finance and results
situation of the Subsidiaries and VFinances, VDistribution and Boomerang SAS
which is in accordance with the actual circumstances.


 


3.4                               Real Property


 


None of the Subsidiaries owns any real property. Attachment
3.4 includes a complete list of all lease agreements the
Subsidiaries entered into. All lease agreements are valid and enforceable and
will not terminate prior to the dates indicated in Attachment 3.4. They do not
include any provision, which would give the relevant landlord the right to
terminate the agreements as a consequence of the consummation of the
transaction contemplated herein or in the Master Agreement.


 


3.5                               Assets


 


(a)                                  With the
exception of the items listed in Attachment 3.5
to this Agreement all assets necessary for, or used in, the present business
operations of the Subsidiaries are reflected in the relevant Annual Statement.
The Subsidiaries are the legal and beneficial owner of all fixed assets used in
their relevant business operations. Such assets are free of any encumbrances or
any other rights for the benefit of third parties. Such assets are in a good
operating and conservation condition. The Subsidiaries are the legal and
beneficial owner of all current assets used in their relevant business
operations. Such assets are free of any encumbrances and any other rights for
the benefits of third parties with the exception of statutory pledges or
retention of title rights entered into the ordinary course of business for liabilities
which are reflected in the Closing Accounts.


 


(b)                                 Between the date of the Annual Statements
for the year 2003 and the Signing Date no assets in excess of Euro 100,000 have
been acquired by any of the Subsidiaries.


 


7





















 


3.6                               Intellectual Property Rights/Information
Technology


 


(a)                                  Attachment
3.6(a) to this Agreement is a complete and correct list of all Intellectual
Property Rights which are owned by the Subsidiaries or with respect to which
the Subsidiaries have been granted licenses for use as well as of, with respect
to such rights in respect to which the Subsidiaries have been granted licenses
for use, a list of the relevant license agreements. With the exception of the
Intellectual Property Rights set forth in this list the Subsidiaries in their
relevant business operations do not use any further Intellectual Property
Rights nor are they dependent thereon. No Intellectual Property Rights used by
the Subsidiaries have been challenged in court or out of court by any third
parties nor is any such challenge threatened.


 


(b)                                 The contents of the websites
operated by the Subsidiaries are fully in compliance with all statutory and
other provisions relevant thereto. No links to third-party websites with
obviously illegal contents have been established and the links established to
third-party websites themselves are legal.


 


(c)                                  In the last 12 (twelve) months, the
Subsidiaries have not suffered any material failures or bugs in or breakdowns
of its Information Technology or parts thereof used in connection with its
business which have caused any substantial disruption or interruption to their
respective business.


 


(d)                                 The Subsidiaries
are not dependent on any third party as regards the support and the maintenance
of their respective Information Technology, except as otherwise stated in Attachment 3.6(d)(i). To the extent
that the persons listed in Attachment 3.6(d)(ii) no
longer carry out the support or the maintenance of the Information Technology,
the Subsidiaries possess all the necessary rights and information either to
undertake the support or maintenance by themselves or to have it done by a
third party.


 


3.7                               Customers/Suppliers


 


Attachment 3.7 to this
Agreement is a complete and correct list of all customers accounting for at
least 3% of total revenues of a certain Subsidiary during the last twelve month
prior the Signing Date and of the 10 largest content and advertising suppliers
as well as of the 5 largest ancillary on line suppliers of the Subsidiaries as
well as of all suppliers of the Subsidiaries which, for goods and services of
any kind, are the sole source of supply, i.e. for which there is no alternative
source at comparable conditions (except for energy supply agreements, mail and
telecommunication services), listing in each case the business volume for the
fiscal year 2003. To the best knowledge of Seller there is no reason to believe
that any of such customers or suppliers of the Subsidiaries will reduce the
extent of its previous dealings with the Subsidiaries to any material degree
except as for the general development of the economy or market.


 


3.8                               Bank Accounts


 


Attachment 3.8 to this
Agreement is a complete and correct list of all bank accounts of the
Subsidiaries as well as the respective signatories.


 


3.9                               Insurances


 


Attachment 3.9 to this
Agreement is a complete and correct list of all insurances taken out by, or for
the benefit of, the Subsidiaries or its business operations. The respective
policy holder is in good standing with respect to its obligations under the
insurance contract. Insurances which lapse upon the acquisition of the Subsidiaries
by the Buyer are marked.


 


8





















 


3.10                        Contracts


 


(a)                                  Attachment 3.10 to this Agreement is a complete and correct list of
certain important (written or orally concluded) agreements and obligations of the
Subsidiaries (hereinafter referred to as the Material
Contracts), i.e. all agreements and commitments which relate to one
of the following items or have been concluded with, or granted to, one of the
following parties:


 


(i)                                     All agreements
and obligations relating to the acquisition, divestiture, encumbrance or other
disposal of real estate or real-estate-like rights;


 


(ii)                                  All agreements
relating to the acquisition or the divestiture of fixed assets including
intangible assets, physical fixed assets (with the exception of real estate and
real-estate-like rights) and financial assets whose value exceeds
EUR 75,000 per item or collectively;


 


(iii)                               All usufructuary
lease agreements (Pachtverträge), rental agreements
(Mietverträge) or leasing arrangements to
the extent that they trigger annual payments of more than EUR 75,000 per
item or collectively;


 


(iv)                              All license
agreements into which the Subsidiaries as licensor or licensee have entered to
the extent that they trigger annual payments of more than EUR 45,000 per
item or collectively;


 


(v)                                 All credit
agreements into which the Subsidiaries, as lender or borrower, have entered,
with the exception of customary extensions of the due date of receivables or
payables agreed to in the ordinary course of business, as well as all factoring
arrangements;


 


(vi)                              All agreements
with domestic or foreign authorized dealers (Vertragshändler),
commercial agents (Handelsvertreter)
or agents as well as all similar distribution agreements which either in case
of their termination trigger compensation claims against the Subsidiaries or
whose notice period for termination exceeds three (3) months;


 


(vii)                           All employment
agreements which provide for an annual aggregate remuneration of more than
EUR 50,000 (as per the date of conclusion of such agreement) as well as
all agreements with advisers to the extent that they trigger annual payments
which exceed EUR 50,000 per item or collectively;


 


(viii)                        All agreements
and obligations relating to pensions, other social benefits, profit participations,
turnover participations or other success bonuses as well as similar agreements
with the exception of those already mentioned under Section (vii);


 


(ix)                                All collective
bargaining agreements and shop agreements into which the Subsidiaries have entered
or to which the Subsidiaries are subject;


 


(x)                                   All cooperation
and similar agreements with third parties as well as any agreement or obligation
having an restrictive impact on competition;


 


(xi)                                All agreements or
obligations which have been entered into or assumed outside the ordinary course
of business of the Subsidiaries to the extent that they trigger annual payments
of more than EUR 150,000 per item or collectively;


 


9





















 


(xii)                             Other agreements
and obligations which trigger annual payments exceeding EUR 150,000 per
item or collectively;


 


(xiii)                          Other agreements with a duration of more
than 24 months or which are incapable of termination in accordance with its
terms, by the Subsidiaries on 90 days notice or less.


 


The validity or enforceability of none of the Material Contracts has
been legally contested or questioned. No Material Contract is terminated nor to
the best knowledge of Seller about to be terminated. Neither the Company nor to
the best knowledge of Seller its respective contractual partner have breached,
or are in default with respect to, any Material Contract. The transactions
contemplated in this Agreement and the Master Agreement will not give any party
an express right to termination or amendment of a Material Contract.


 


(b)                                 Between the Company or the
Subsidiaries on the one side and the Seller, his relatives as well as
enterprises affiliated with the Seller within the meaning of Sect. 15 of the
Stock Corporation Act (Aktiengesetz)
on the other side there are no contractual relationships (both oral and in
writing) with the exception of those listed in Attachment
3.10  to this Agreement.


 


3.11                        Employees


 


(a)                                  Attachment 3.11(a)(i) to this Agreement
is a complete and correct list of all employees of the Subsidiaries. No
employee marked therein as “important” has declared an intention to terminate
the employment relationship with the Subsidiaries. There are no labor disputes
with the exception of those listed in Attachment 3.11(a)(ii).
A complete set of sample employment contracts used by the Subsidiaries has been
made available to the Buyer prior to the Signing Date.


 


(b)                                 Attachment 3.11(b)(i) to this Agreement
is a complete and correct list of all powers of attorney issued by the
Subsidiaries and presently in force which are not reflected in the excerpt from
the commercial register.


 


(c)                                  The pension accruals shown in
the Closing Accounts duly reflect the cash value of the Subsidiaries’
liabilities from commitments for company pension plans (both direct and
indirect commitments).


 


3.12                        Public Grants


 


The Subsidiaries have applied for, received and used all public grants
only in accordance with applicable law and in compliance with all regulatory
orders, conditions and impositions. No such grants will have to be repaid as a
result of the consummation of the transactions reflected in this Agreement and
the Master Agreement nor due to other circumstances already known.


 


3.13                        Litigation


 


Attachment 3.13 to this Agreement is a complete and correct
list of all legal disputes and regulatory proceedings to which the Subsidiaries
or employees of the Subsidiaries (to the extent that such disputes or
proceedings could result in a liability of the Subsidiaries) are party or
subject. Aside from the listed disputes and proceedings no disputes or
proceedings are impending nor are there any circumstances which are likely to
give rise to such disputes or proceedings.


 


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3.14                        Compliance


 


Neither the operation nor the other present business operations of the
Subsidiaries nor any of its products or services violate applicable law or
regulatory orders. The Subsidiaries have at their disposal all regulatory
permits which are required for the conduct and continuation of their present
business operations. To the best knowledge of Seller neither a revocation nor
any restrictions of such permits is impending.


 


3.15                        True Information/Known Facts


 


To the best knowledge of OFT (which shall include information OFT has
obtained from the chief financial officers of the Subsidiaries) all information
supplied to the Buyer and its advisers by the Seller prior to Signing Date is
true, accurate and complete in all respects. To the best knowledge of the
Seller (as described above) it is not misleading and does not omit anything
relating to the Company or Subsidiaries and their business operations which
would be important for the individual information or which the Buyer at the
time of the recording of this Agreement for the evaluation of such information
should know. To the best knowledge of the Seller (as described above) there are
no material facts or circumstances which in future could have a materially
adverse impact on the Subsidiaries or the Company and their business operations
with the exception of general developments of the economy or the market.


 


4.                                      CLAIMS UNDER THE SELLER’S
STATEMENTS


 


4.1                                 In the event that any of the Statements of
the Seller is not true, accurate, complete and not misleading in every respect,
the Seller shall be liable for putting the Buyer, or at the discretion of the
Buyer, the relevant Subsidiaries or the Company into the same position that it would have
been in if the Statements had been true, accurate, complete and not misleading
in every respect (Naturalrestitution). If the
Seller then fails to cure the defect within a period of 4 months following
receipt of a written notice of the Buyer, the Seller shall be liable for paying
monetary damages to the Buyer or, at the discretion of the Buyer, to the
relevant Subsidiaries or the Company in an amount which is necessary to put the Buyer, or,
at the discretion of the Buyer, the relevant Subsidiaries into the same position that
it would have been in if the Statements had been true, accurate, complete and
not misleading in every respect (always provided that the Buyer, the Company
and/or the relevant Subsidiary have suffered damage).


 


4.2                                 Except for the Statements in Clauses 3.2(a)
to (c) the Seller shall only be liable for a breach of a Statement in
proportion to its original (indirect) shareholding in the Company or the
Subsidiaries, respectively (i.e. 50%).


 


4.3                                 All statutory rights of the Buyer (gesetzlich begründete Ansprüche) in connection with a breach
of the statement in this Agreement shall be excluded.


 


5.                                      INDEMNIFICATION FOR TAXES


 


5.1                                 The Subsidiaries have submitted all
declarations, tax returns and prepayment notices (Voranmeldungen)
with regard to Taxes to all authorities required by law to be submitted in a
timely manner, and all such declarations, tax returns and prepayment notices
are complete and accurate in all respects. No taxing authority has ever made a
claim against any Subsidiary in a jurisdiction where that Subsidiary does not
currently file returns that such Subsidiary is subject to tax in that jurisdiction
(and no such claim is expected to be made), and in no such jurisdiction is
there an obligation to file declarations, tax returns and prepayment notices or
pay Taxes (and no such obligation is expected to arise). Each Subsidiary has
paid in full when due (and, if not yet due or fully paid or shown as a liability
in its respective Financial


 


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Statements or Management Accounts, has
fully and sufficiently provided for in the Closing Accounts) all Taxes covering
fiscal years or other periods ending on or before the Signing Date, regardless
of whether such Taxes have already been assessed or will be assessed in the
future. For the avoidance of doubt OFT does not guarantee the amount of any tax
losses carried forward, if any.


 


5.2                                 In the event any of the independent
guarantees pursuant to Clause 5.1 should be incomplete, incorrect or misleading
(Breach) OFT will remedy such Breach
within (30) thirty days after receipt of a written request from either a Subsidiary
or TVL GmbH by placing the relevant Subsidiary in a position in which it were
if the guarantee(s) were complete, correct and not misleading. Should the
Breach not be remedied within thirty (30) days after receipt of such written
request regardless of the reason therefore OFT shall pay damages to TVL GmbH or
the Subsidiaries. Clause 4.2 shall apply accordingly.


 


5.3                                 In the event Taxes are actually refunded by
a relevant tax authority after 30 September 2004 and such Taxes were actually
paid by the Subsidiaries before 1 October 2004 and such payments directly
relate to periods ending or before 1 October 2004 then 50% of such refunds
shall be treated as the property of OFT and shall be passed to OFT, if not
already provided for or accrued in the Financial Statements or Closing
Accounts.


 


6.                                      LIMITATIONS


 


6.1                                 All claims under the Statements, except for
claims under the indemnity for public charges, under this Agreement shall
prescribe 2 years after the Signing Date. Any claims under the tax indemnity
contained in Clause 5 shall be subject to a limitation period equal to (90)
ninety days after the expiration of the applicable statute of limitations for
assessment of Taxes.


 


6.2                                 The time limitation on individual claims
and indemnity claims provided in Clause 6.1 shall be suspended (gehemmt) within the meaning of § 209
of the German Civil Code (Bürgerliches Gesetzbuch)
by any notification of such individual claim or indemnity claim, as the case
may be, until the point in time the relevant claim or indemnity claim is fully
settled by agreement between the relevant Parties or by final judgement in
respect of the claim or indemnity claim made. In addition, any suspension based
on any of the events specified in §§ 203 to 206 of the German Civil Code
shall apply.


 


6.3                                 The Buyer shall have claims
based upon a breach of any Statement as set out in Clause 3 only if the
aggregate of all claims exceeds an amount of Euro 600,000 (in words: six
hundred thousand euros) (the Claim Threshold),
at which point the Buyer shall be entitled to be compensated for all claims
based upon a breach of a Statement contained in Clause 3 of this Agreement. For
the avoidance of doubt the limitation set forth in this Clause 6.3 shall not
apply with respect to any claims under Clause 5. Furthermore, for the avoidance
of doubt, in the light of the principle stated under Clause 4.2 for the purpose
of determining whether or not a claim falls under the Claim Threshold, the
actual amount of the damage to the Company, subsidiary or Buyer, as the case may
be is decisive.


 


6.4                                 In no event, however, shall the liability
of the Seller pursuant to Clause3 exceed an aggregate amount of Euro 20,800,000
(in words: twenty million eight hundred thousand euros) (the Cap Amount).


 


6.5                                 The Claim
Threshold and the Cap Amount shall not apply to claims based upon willful
(other than negligence or gross negligence) or fraudulent breaches of the
statements contained in Clause 3 and Clause 5 of this Agreement.


 


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6.6                                 To the extent that any claims under this
Agreement would entitle the Buyer to make a claim under the VFinances
Acquisition Agreement or any other agreement, before making any claims under
this Agreement, the Buyer shall undertake its reasonable best efforts to settle
such claim under the VFinances Acquisition Agreement or relevant other
agreement.


 


6.7                                 § 442 of the German Civil Code (Bürgerliches Gesetzbuch) and § 377 of the German Commercial
Code (Handelsgesetzbuch) as well as the legal
principles expressed in these provisions shall not apply, neither directly nor
by analogy.


 


7.                                      CLOSING ACCOUNTS


 


If so
requested by the Buyer within 5 days from the date of this Agreement, Closing
Accounts shall be prepared as soon as possible after the Closing, but in no
event later than 60 days for each of the Subsidiaries in accordance with the
generally accepted accounting principles as applicable to the country the
relevant Subsidiary relates and shall be consolidated based upon such
accounting principles as agreed by the Parties. The Closing Accounts shall be
audited by KPMG on instructions as agreed upon by the Parties. Costs shall be
borne by the relevant Subsidiaries; costs of the consolidated accounts shall be
borne by the Buyer.


 


8.                                      NON-COMPETE


 


Clause
7.4 of the New Joint Venture Agreement shall apply.


 


9.                                      CONFIDENTIALITY


 


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 the other Parties, 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.                               MISCELLANEOUS


 


10.1                        Costs/Expenses


 


Clause
11 of the Master Agreement shall apply mutatis mutandis.


 


10.2                        Notification in accordance with § 16 GmbHG


 


The
Parties undertake to notify the company of the share transfers performed under
this Agreement in accordance with § 16 I GmbHG immediately after the
notarisation of this Agreement.


 


10.3                        Governing Law and Dispute Resolution


 


This
Agreement and the rights of the Parties hereunder shall be governed by and construed
in accordance with the laws of the Federal Republic of Germany. The competent
court of Frankfurt/Main shall have exclusive jurisdiction.


 


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10.4                        Waiver


 


None of
the terms of this Agreement shall be deemed to have been waived by either
Party, unless such waiver is in writing and signed by that Party. The waiver by
either Party of a breach of any provision of this Agreement shall not operate
or be construed as a waiver of any other provision of this Agreement or of any
further breach of the provision so waived. No extension of time for the
performance of any obligation or act hereunder shall be deemed to be an
extension of time for the performance of any other obligation or act.


 


10.5                        Notices


 


Except
as otherwise set forth herein, any notice or communication required or
permitted to be given under this Agreement by one of the Parties to the other
shall be given for all purposes by delivery in person, by registered (air) mail
or internationally known private courier (such as Federal Express), to the
other Party.


 


Such
notice or communication is - for the time being - to be addressed as follows:


 


	
  If to OFT:

  	
   

  	
  Otto
  Freizeit und Touristik GmbH

  
	
   

  	
   

  	
  Attn.
  Christoph Rische

  
	
   

  	
   

  	
  Osterbekstraße
  90 a

  
	
   

  	
   

  	
  22083
  Hamburg, Germany

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Otto (GmbH
  & Co KG)

  
	
   

  	
   

  	
  Attn. Dr.
  Michael E. Crüsemann

  
	
   

  	
   

  	
  Wandsbeker
  Straße 3 –7

  
	
   

  	
   

  	
  22172
  Hamburg, Germany

  
	
   

  	
   

  	
   

  
	
  and:

  	
   

  	
  Otto (GmbH
  & Co KG)

  
	
   

  	
   

  	
  Attn. Head
  of Legal Department

  
	
   

  	
   

  	
  Wandsbeker
  Straße 3 –7

  
	
   

  	
   

  	
  22172
  Hamburg, Germany

  
	
   

  	
   

  	
   

  
	
  if to TVL
  GmbH:

  	
   

  	
  Travelocity.com
  LP

  
	
   

  	
   

  	
  Attn. CFO

  
	
   

  	
   

  	
  3150 Sabre
  Drive

  
	
   

  	
   

  	
  Southlake,
  Texas 76092, USA

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Travelocity.com
  LP

  
	
   

  	
   

  	
  Attn.
  General Counsel

  
	
   

  	
   

  	
  3150 Sabre
  Drive

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Southlake,
  Texas 76092, USA.

  



 


Unless
otherwise specifically provided for herein, such notice shall be effective upon
arrival thereof at the respective address, provided that any late or
non-delivered notice shall be deemed to have arrived at said address upon the
expiration of seven days from the date of sending.


 


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10.6                        Amendments and Modifications


 


This
Agreement may not be modified, amended or changed in any respect except in
writing, unless notarisation is required. The same shall apply to any waiver of
the need to comply with this Clause 10.6.


 


10.7                        Assignment


 


Neither
Party may assign or charge any of its rights under this Agreement without the
prior written consent of the other Parties always provided that the Parties may
assign its rights under this Agreement to an Affiliate without such consent.


 


10.8                        Severability


 


Each
provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement shall be
or become wholly or partially unenforceable or invalid under any applicable
law, such provision shall be ineffective only to the extent of such
unenforceability or invalidity, and the remaining provisions of this Agreement
shall continue to be binding and in full force and effect. The same shall apply
if it should transpire that this Agreement contains an omission. Instead of the
invalid or unenforceable provision the Parties shall agree on an appropriate
provision which comes as close as legally possible to what the Parties were
trying to achieve with the invalid or unenforceable provision (or, as the case
may be, the invalid or unenforceable part thereof). In the event that an
omission needs to be rectified, a provision shall be agreed upon which in view
of the purpose and intent of this Agreement comes as close as possible to what
the Parties would have agreed if they had been aware of the omission at the
time that this Agreement was concluded.


 


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