| SECURITIES AND EXCHANGE COMMISSION | |
| Washington, D.C. 20549 | |
| SCHEDULE 13D/A | |
|
Under the Securities Exchange Act of 1934 (Amendment No. 1) | |
|
Travelport Worldwide Limited | |
| (Name of Issuer) | |
|
Common Shares, par value $0.0025 per share | |
| (Title of Class of Securities) | |
|
G9019D104 | |
| (CUSIP Number) | |
|
Elliott Associates, L.P. c/o Elliott Management Corporation 40 West 57th Street New York, NY 10019
with a copy to: Eleazer Klein, Esq. Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 (212) 756-2000 | |
| (Name, Address and Telephone Number of Person | |
| Authorized to Receive Notices and Communications) | |
|
December 9, 2018 | |
| (Date of Event Which Requires Filing of This Statement) | |
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. [ ]
(Page 1 of 8 Pages)
______________________________
* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
| CUSIP No. G9019D104 | Schedule 13D/A | Page 2 of 8 Pages |
| 1 |
NAME OF REPORTING PERSON Elliott Associates, L.P. | |||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) x (b) ¨ | ||
| 3 | SEC USE ONLY | |||
| 4 |
SOURCE OF FUNDS WC | |||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ | ||
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: |
7 |
SOLE VOTING POWER 2,573,598 (1) | ||
| 8 |
SHARED VOTING POWER -0- | |||
| 9 |
SOLE DISPOSITIVE POWER 2,573,598 (1) | |||
| 10 |
SHARED DISPOSITIVE POWER -0- | |||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,573,598 (1) | |||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ | ||
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.0% | |||
| 14 |
TYPE OF REPORTING PERSON PN | |||
(1) Includes 413,144 Common Shares underlying Physical Derivative Agreements.
| CUSIP No. G9019D104 | Schedule 13D/A | Page 3 of 8 Pages |
| 1 |
NAME OF REPORTING PERSON Elliott International, L.P. | |||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) x (b) ¨ | ||
| 3 | SEC USE ONLY | |||
| 4 |
SOURCE OF FUNDS WC | |||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ | ||
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands, British West Indies | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: |
7 |
SOLE VOTING POWER -0- | ||
| 8 |
SHARED VOTING POWER 5,468,886 (1) | |||
| 9 |
SOLE DISPOSITIVE POWER -0- | |||
| 10 |
SHARED DISPOSITIVE POWER 5,468,886 (1) | |||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 5,468,886 (1) | |||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ | ||
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.3% | |||
| 14 |
TYPE OF REPORTING PERSON PN | |||
(1) Includes 877,931 Common Shares underlying Physical Derivative Agreements.
| CUSIP No. G9019D104 | Schedule 13D/A | Page 4 of 8 Pages |
| 1 |
NAME OF REPORTING PERSON Elliott International Capital Advisors Inc. | |||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) x (b) ¨ | ||
| 3 | SEC USE ONLY | |||
| 4 |
SOURCE OF FUNDS OO | |||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ | ||
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: |
7 |
SOLE VOTING POWER -0- | ||
| 8 |
SHARED VOTING POWER 5,468,886 (1) | |||
| 9 |
SOLE DISPOSITIVE POWER -0- | |||
| 10 |
SHARED DISPOSITIVE POWER 5,468,886 (1) | |||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 5,468,886 (1) | |||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ | ||
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.3% | |||
| 14 |
TYPE OF REPORTING PERSON CO | |||
(1) Includes 877,931 Common Shares underlying Physical Derivative Agreements.
| CUSIP No. G9019D104 | Schedule 13D/A | Page 5 of 8 Pages |
| The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned ("Amendment No. 1"). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein. | |
| Item 4. | PURPOSE OF TRANSACTION |
| Item 4 of the Schedule 13D is hereby amended and supplemented by the addition of the following: | |
| On December 9, 2018, (i) Toro Private Holdings III, Ltd., a private limited company organized under the laws of England and Wales ("Parent"), entered into an Agreement and Plan of Merger (the "Merger Agreement") with the Issuer, and, following the execution of a joinder, Toro Private Holdings IV, Ltd., a Bermuda exempted company and a wholly owned subsidiary of Parent ("Merger Sub"), each providing for the merger of Merger Sub with and into the Issuer (the "Merger"), with the Issuer surviving the Merger as a wholly owned subsidiary of Parent. Capitalized terms used but not otherwise defined in this Item 4 have the meaning set forth in the Merger Agreement. | |
| Elliott and Elliott International (collectively, the "Elliott Funds") provided an equity commitment to fund a portion of the aggregate purchase price pursuant to a commitment letter (the "Equity Commitment Letter") from the Elliott Funds of up to $487,133,935.92, collectively. The Elliott Funds have also agreed to rollover and contribute to Parent 6,751,409 Common Shares, which will be cancelled at the Effective Time without any consideration paid therefor. Concurrently with the execution of the Merger Agreement, the Elliott Funds have entered into a Limited Guarantee guaranteeing certain obligations of Parent under the Merger Agreement, including the payment of a portion of Parent Termination Fee in the event the Merger Agreement is terminated under specified circumstances. | |
| At the Effective Time, each Common Share issued and outstanding as of immediately prior to the Effective Time (other than Owned Company Shares or Dissenting Shares) will automatically be cancelled, extinguished and converted into the right to receive cash in an amount equal to $15.75, without interest thereon. At the Effective Time, each Dissenting Company Share will automatically be canceled and, unless otherwise expressly required by applicable law, be converted into the right to receive the fair value of a Dissenting Company Share as appraised by the Supreme Court of Bermuda. Consummation of the Merger is subject to customary closing conditions, including, without limitation, approval by the Issuer’s stockholders, the expiration or termination of any waiting periods applicable to the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and other specified antitrust laws and the absence of any law or order restraining, enjoining or otherwise prohibiting the Merger. | |
| In connection with the entry of the Merger Agreement, the Elliott Funds have delivered to the Issuer a Voting Agreement obligating the Elliott Funds to vote the 6,751,409 Common Shares owned by them in favor of the Merger. | |
| The foregoing descriptions of the Merger Agreement, the Equity Commitment Letter and the Voting Agreement and the transactions contemplated thereby do not purport to be complete and are subject to, and qualified in their entirety by reference to, the full text of the Merger Agreement, the Equity Commitment Letter and the Voting Agreement, which are attached as Exhibit 99.2, Exhibit 99.3 and Exhibit 99.4, respectively and are incorporated herein by reference. | |
| In connection with the Merger Agreement and the Equity Commitment Letter, the Elliott Funds also entered into an Interim Investors Letter Agreement with Siris Partners IV (Cayman) Main, L.P., Siris Partners IV (Cayman) Parallel, L.P. and Parent (the "Interim Investors Letter Agreement"). Pursuant to the Interim Investors Letter Agreement, the parties thereto have agreed to certain terms and conditions that will govern the actions of the parties and the relationship among the parties with respect to the Merger Agreement, the Equity Commitment Letter and the Limited Guarantees. | |
| CUSIP No. G9019D104 | Schedule 13D/A | Page 6 of 8 Pages |
| The foregoing description of the Interim Investors Letter Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Interim Investors Letter Agreement, which is attached as Exhibit 99.5 and is incorporated herein by reference. | ||
| If the Merger is effected, it would result in one or more of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D, including, without limitation, the indirect acquisition of additional securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, the delisting of the Common Shares from the New York Stock Exchange and the Common Shares becoming eligible for termination from registration pursuant to Section 12(b) of the Act. | ||
| Item 5. | INTEREST IN SECURITIES OF THE ISSUER | |
| Items 5(a) and (c) of the Schedule 13D are hereby amended and restated as follows: | ||
| (a) As of the date hereof, Elliott, Elliott International and EICA collectively have beneficial ownership of approximately 8,042,484 Common Shares constituting approximately 6.4% of the Common Shares outstanding and combined economic exposure in the Issuer of approximately 14,781,469 Common Shares constituting approximately 11.7% of the Common Shares outstanding. | ||
| The aggregate percentage of the Common Shares reported owned by each person named herein is based upon 126,432,714 Common Shares outstanding, which is the total number of Common Shares outstanding as of October 30, 2018 as reported in the Issuer's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2018, filed with the Securities and Exchange Commission (the "SEC") on November 1, 2018. | ||
| As of the date hereof, Elliott, itself and through The Liverpool Limited Partnership, a Bermuda limited partnership and a wholly-owned subsidiary of Elliott ("Liverpool"), beneficially owned 2,573,598 Common Shares, including 413,144 Common Shares underlying Physical Derivative Agreements that Elliott may be deemed to beneficially own upon satisfaction of certain conditions, constituting 2.0% of the Common Shares outstanding. | ||
| As of the date hereof, Elliott International beneficially owned 5,468,886 Common Shares, including 877,931 Common Shares underlying Physical Derivative Agreements that Elliott International may be deemed to beneficially own upon satisfaction of certain conditions, constituting 4.3% of the Common Shares outstanding. EICA, as the investment manager of Elliott International may be deemed to beneficially own the 5,468,886 Common Shares beneficially owned by Elliott International, constituting 4.3% of the Common Shares outstanding. | ||
| (c) The Reporting Persons have not effected any transactions in the securities of the Issuer during the past 60 days. | ||
| Item 6. | CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER | |
| Item 6 of the Schedule 13D is hereby amended and restated as follows: | ||
| The Reporting Persons’ response to Item 4 is incorporated by reference into this Item 6. | ||
| CUSIP No. G9019D104 | Schedule 13D/A | Page 7 of 8 Pages |
| Elliott and Elliott International have entered into notional principal amount derivative agreements in the form of physically settled swaps (the "Physical Derivative Agreements") with respect to 413,144 and 877,931 Common Shares of the Issuer, respectively, that the Reporting Persons may be deemed to beneficially own upon satisfaction of certain conditions. Collectively, the Physical Derivative Agreements held by the Reporting Persons represent economic exposure comparable to an interest in approximately 1.0% of the Common Shares. The counterparties to the Physical Derivative Agreements are unaffiliated third party financial institutions. | |
| Elliott, through Liverpool, and Elliott International have entered into notional principal amount derivative agreements in the form of cash settled swaps (the "Cash Derivative Agreements") with respect to 2,156,476 and 4,582,509 Common Shares of the Issuer, respectively (representing economic exposure comparable to 1.7% and 3.6% of the Common Shares of the Issuer, respectively). Collectively, the Cash Derivative Agreements held by the Reporting Persons represent economic exposure comparable to an interest in approximately 5.3% of the Common Shares. The Cash Derivative Agreements provide Elliott and Elliott International with economic results that are comparable to the economic results of ownership but do not provide them with the power to vote or direct the voting or dispose of or direct the disposition of the shares that are referenced in the Cash Derivative Agreements (such shares, the "Subject Shares"). The Reporting Persons disclaim beneficial ownership in the Subject Shares. The counterparties to the Cash Derivative Agreements are unaffiliated third party financial institutions. | |
| On March 26, 2018, Elliott, Elliott International and EICA entered into a Joint Filing Agreement (the "Joint Filing Agreement") in which the parties agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law. The Joint Filing Agreement is attached as Exhibit 99.1 hereto and is incorporated herein by reference. | |
| Except as described above in this Item 6, none of the Reporting Persons has any contracts, arrangements, understandings or relationships with respect to the securities of the Issuer. | |
| Item 7. | EXHIBITS |
| Item 7 of the Schedule 13D is hereby amended and supplemented by the addition of the following: | |
| Exhibit | Description |
| Exhibit 99.2 - | Merger Agreement, dated as of December 9, 2018, by and among Toro Private Holdings III, Ltd., Toro Private Holdings IV, Ltd. and Travelport Worldwide Limited (incorporated herein by referenced to Exhibit 2.1 of Travelport Worldwide Limited’s Current Report on Form 8-K filed December 10, 2018). |
| Exhibit 99.3 - | Equity Commitment Letter, dated as of December 9, 2018, by and among Elliott Associates, L.P., Elliott International, L.P. and Toro Private Holdings III, Ltd. |
| Exhibit 99.4 - | Voting Agreement, dated as of December 9, 2018, by and among Elliott Associates, L.P., Elliott International, L.P. and Travelport Worldwide Limited (incorporated herein by referenced to Exhibit 10.1 of the Issuer’s Current Report on Form 8-K filed December 10, 2018). |
| Exhibit 99.5 - | Interim Investors Letter Agreement, dated as of December 9, 2018, by and among Elliott Associates, L.P., Elliott International, L.P., Siris Partners IV (Cayman) Main, L.P., Siris Partners IV (Cayman) Parallel, L.P. and Toro Private Holdings III, Ltd. |
| CUSIP No. G9019D104 | Schedule 13D/A | Page 8 of 8 Pages |
SIGNATURES
After reasonable inquiry and to the best of his or its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
DATE: December 11, 2018
| ELLIOTT ASSOCIATES, L.P. | |
| By: Elliott Capital Advisors, L.P., as General Partner | |
| By: Braxton Associates, Inc., as General Partner | |
| /s/ Elliot Greenberg | |
| Name: Elliot Greenberg | |
| Title: Vice President | |
| ELLIOTT INTERNATIONAL, L.P. | |
| By: Elliott International Capital Advisors Inc., as Attorney-in-Fact | |
| /s/ Elliot Greenberg | |
| Name: Elliot Greenberg | |
| Title: Vice President | |
| ELLIOTT INTERNATIONAL CAPITAL ADVISORS INC. | |
| /s/ Elliot Greenberg | |
| Name: Elliot Greenberg | |
| Title: Vice President |
Exhibit 99.3
| Elliott Associates, L.P. | Elliott International, L.P. |
| 40 W 57th St. | 40 W 57th St. |
| New York, New York 10019 | New York, New York 10019 |
December 9, 2018
Toro Private Holdings III, Ltd.
c/o Siris Capital Group, LLC
601 Lexington Ave, 59th Floor
New York, New York 10022
Attention: General Counsel
Re: Equity and Rollover Commitment Letter
Ladies and Gentlemen:
This letter agreement (this “Letter Agreement”) sets forth the several (and not joint and several) commitment of Elliott Associates, L.P., a Delaware limited partnership, and Elliott International, L.P., a Cayman Islands limited partnership (each, an “Investor”), subject to the terms and conditions contained herein, to (x) purchase, or cause the purchase of, the equity of Toro Private Holdings III, Ltd., a private limited company organized under the laws of England and Wales (“Parent”), and (y) contribute to Parent, shares of common stock, par value $0.0025 per share, of the Company (the “Shares”) in exchange for additional equity in Parent. It is contemplated that, pursuant to the Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time pursuant to the terms thereof, the “Merger Agreement”) entered into concurrently herewith by and among Parent, following the execution of a joinder, Toro Private Holdings IV, Ltd., a Bermuda exempted company, and wholly owned subsidiary of Parent (“Merger Sub”), and Travelport Worldwide Limited, a Bermuda exempted company (the “Company”), subject to the terms and conditions set forth therein and in the Bermuda Merger Agreement, Merger Sub will merge with and into the Company with the Company as the surviving company of such merger as a wholly owned subsidiary of Parent (the “Merger”). Each capitalized term used but not defined herein shall have the meaning ascribed to it in the Merger Agreement.
| Item 1 | Investor Commitment. Each Investor hereby agrees, severally (and not jointly and severally) and subject to the terms and conditions set forth herein (including, without limitation, the provisions of Sections Item 2 and Item 9), that at the Closing it will (x) contribute or cause to be contributed to Parent (directly or indirectly) an aggregate amount of cash in immediately available funds equal to the dollar commitment set forth next to its name on Schedule A (with respect to each Investor, its “Equity Financing Commitment”) in exchange for certain equity securities of Parent (any such equity securities of Parent, “Equity Securities”), solely for the purpose of providing a portion of the Required Amount (including any Reimbursement Obligations); and (y) contribute, assign, transfer and deliver, or cause the contribution, assignment, transfer and delivery of (directly or indirectly) the number of Shares set forth next to its name on Schedule B, in exchange for additional Equity Securities (with respect to each Investor, its “Rollover Commitment” and together with its Equity Financing Commitment, its “Investor Commitment”). The Investors hereby acknowledge and agree that, upon receipt of the Equity Securities to be issued as contemplated by this Section Item 1, the Investors shall have no right to the Per Share Price with respect to the Shares contributed to Parent pursuant hereto. Each Investor may effect the purchase of the Equity Securities directly or indirectly through one or more Affiliates or other designated co-investors; provided, that the ability of such Investor to effect the purchase through such Affiliates or other co-investors will not affect any of such Investor’s obligations hereunder; provided, further that Parent shall not be required to seek to enforce its rights against such Affiliates’ or other designated co-investors’ obligations prior to seeking to enforce its rights against any Investor; and provided, further that in the event an Investor syndicates or otherwise assigns a portion of its Equity Financing Commitment to one or more assignees in accordance with Section Item 12, the amount required to be funded by such Investor with respect to its Equity Financing Commitment will be reduced by the amount of the equity investments actually contributed by such assignee to Parent and available to Parent at the Closing. Concurrently with the delivery of this Letter Agreement, Siris Partners IV (Cayman) Main, L.P and Siris Partners IV (Cayman) Parallel, L.P. (each a “Co-Investor” and, collectively, the “Co-Investors”) are entering into a letter agreement with Parent (the “Co-Investor Commitment Letter”), committing to invest additional capital in Parent. The aggregate amount of the Investor Commitments to be funded under this Letter Agreement may be reduced in a manner agreed to by the Investors and the Co-Investors to the extent (and solely to the extent) that, at the Closing, Parent does not require all of the equity with respect to which the Investors and the Co-Investors have made commitments to fund, or cause the funding of, pursuant to the Investor Commitments, in the case of the Investors, or the Commitments (as defined in the Co-Investor Commitment Letter) (such Commitments, collectively, the “Sierra Commitment”), in the case of the Co-Investors. An Investor’s Investor Commitment shall be reduced dollar for dollar by any amounts actually paid by such Investor under the Limited Guarantee. Notwithstanding anything else to the contrary in this Letter Agreement, under no circumstances shall any Investor be obligated to contribute more cash than its Equity Financing Commitment or contribute more Shares than its Rollover Commitment, nor shall the cumulative liability of any Investor under this Letter Agreement at any time exceed its Investor Commitment. |
| Item 2 | Conditions. The obligation of the Investors to fund, or cause the funding of, its Investor Commitment is subject to (a) the satisfaction and continuing satisfaction in full or waiver by Parent of the conditions set forth in Sections 7.1 and 7.2 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted under the Merger Agreement) of those conditions), (b) the prior or substantially simultaneous receipt of the proceeds of the Debt Financing (net of any fees and expenses that may be payable in respect thereof) on the terms and conditions set forth in the Debt Commitment Letters (or such proceeds will be received substantially simultaneously if the Investor Commitment is funded), (c) the prior or substantially simultaneous funding and contribution of the Sierra Commitment on the terms and conditions set forth in the Co-Investor Commitment Letter (or the Sierra Commitment will be funded and contributed substantially simultaneously if the Investor Commitment is funded); provided, that the satisfaction or failure of the condition set forth in this clause (c) shall not limit or impair the ability of Parent or the Company to enforce the obligations of each Investor under, and in accordance with, this Letter Agreement if (i) Parent is also seeking enforcement of the Co-Investor Commitment Letter (and the simultaneous funding thereof, which enforcement hereunder shall be subject to concurrent enforcement under such Co-Investor Commitment Letter) or (ii) Sierra has satisfied or is prepared to satisfy its obligation to fund and contribute the Sierra Commitment under the Co-Investor Commitment Letter, and (d) the substantially simultaneous consummation of the Merger in accordance with the terms of the Merger Agreement. |
| Item 3 | Enforceability. This Letter Agreement may be enforced only by (i) Parent and (ii) the Company as provided in Section Item 8. None of Parent’s creditors, owners, Affiliates or Representatives or the Company (except as provided in Section Item 8) or its creditors, owners, Affiliates or Representatives shall have any right to enforce this Letter Agreement or to cause Parent to enforce this Letter Agreement. |
| Item 4 | No Modification; Entire Agreement. No amendment, modification or waiver of any provision hereof shall be enforceable unless approved by Parent, each Investor and the Company in writing; provided that this Letter Agreement may be amended by the Investors without the written consent of the Company to reflect any permitted assignment hereunder. Together with the Merger Agreement, the Voting Agreement, the applicable Confidentiality Agreement, and the Limited Guarantee, this Letter Agreement contains the entire agreement between the parties and supersedes all prior agreements, understandings and statements, written or oral, among the parties or their respective Affiliates, with respect to the subject matter hereof and the transactions contemplated hereby. |
| Item 5 | Governing Law; Jurisdiction. This Letter Agreement and all actions, proceedings or counterclaims (whether based on contract, tort or otherwise) arising out of or relating to this Letter Agreement or the negotiation, execution or performance of this Letter Agreement (including, without limitation, any actions, proceedings or counterclaims (whether based on contract, tort or otherwise) arising out of or relating to any representation or warranty made in or in connection with this Letter Agreement) shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than the State of Delaware. The parties hereto agree that all Legal Proceedings (whether in contract or tort) seeking to enforce any provision of, or based on any matter arising out of or relating to, this Letter Agreement or the transactions contemplated hereby shall be brought in the Delaware Court of Chancery or, if such court shall not have jurisdiction, any federal court sitting in Delaware, so long as one of such courts shall have subject matter jurisdiction over such action, and that any such action arising out of this Letter Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action and irrevocably waives, to the fullest extent permitted by applicable Law, any objection that it may now or hereafter have to the laying of the venue of any such action in any such court or that any such action brought in any such court has been brought in an inconvenient forum. Process in any such action may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. |
| Item 6 | WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY LEGAL PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION Item 6. |
| Item 7 | Counterparts. This Letter Agreement may be executed in any number of counterparts (including by facsimile or via email by .pdf delivery), each such counterpart when executed being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement. Facsimile and other electronically scanned signatures shall be deemed originals for all purposes of this Letter Agreement. |
| Item 8 | Third Party Beneficiaries. This Letter Agreement shall inure to the benefit of and be binding upon Parent and the Investors. Except as provided in Section Item 4 and this Section Item 8 (with respect to each of which the Company shall be a third party beneficiary), and Section Item 10 (with respect to which each Related Party (as defined below) shall be a third party beneficiary), the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the parties hereto and their respective successors and permitted assigns, in accordance with and subject to the terms of this Letter Agreement, no person other than the parties hereto shall be entitled to rely upon this Letter Agreement and nothing herein or in any other agreement (including, without limitation, the Merger Agreement or the Limited Guarantee), express or implied, is intended to or shall confer upon any person other than the parties hereto and their respective successors and permitted assigns any rights or remedies hereunder or any rights to enforce the Investor Commitments or any provision of this Letter Agreement; provided, however, that subject to the terms and conditions of the Merger Agreement, including, without limitation, Sections 8.3(f) and 9.8(b) thereof, the Company is hereby made a third party beneficiary of the rights granted to Parent under this Letter Agreement for the sole purpose of seeking specific performance of the obligation of each Investor to fund, or cause the funding of, its Investor Commitment (solely to the extent that Parent can enforce such Investor Commitments pursuant to the terms and conditions hereof, including, without limitation, Sections Item 1 and Item 2), and for no other purpose (including, without limitation, any claim for monetary damages hereunder); provided, however that in no event shall the Company be entitled to enforce the terms of this Letter Agreement unless the conditions set forth in Section 9.8(b) of the Merger Agreement have been satisfied. Each Investor hereby agrees, subject in all respects to Section 9.8(b) of the Merger Agreement, not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that Parent or the Company, as applicable, has an adequate remedy at law. |
| Item 9 | Termination. This Letter Agreement, and the obligation of each Investor to fund its Investor Commitment, will terminate automatically and immediately upon the earliest to occur of (a) the Closing (if the Merger has been consummated in accordance with the terms of the Merger Agreement), (b) the valid termination of the Merger Agreement in accordance with its terms, (c) receipt by the Company of payment in full of the Obligations in respect of the Guarantors (within the meaning of the Limited Guarantee), (d) the Termination Date and (e) the date on which any Company Related Party asserts or causes to be asserted in any Legal Proceeding in connection with the Merger Agreement, the Limited Guarantee, this Letter Agreement, the Voting Agreement or any Confidentiality Agreements any Claim (i) against any Investor under the Limited Guarantee (it being understood and agreed that the Company cannot obtain specific performance under the Merger Agreement and hereunder and also obtain performance of the Limited Guarantee), (ii) that one or more of the provisions of this Letter Agreement, including, without limitation, any of the provisions of Section Item 1 or Section Item 2 limiting each Investor’s obligations with respect to its Investor Commitment, and the provisions of this Section Item 9 or Section Item 10, are illegal, invalid or unenforceable in whole or in part, or that either Investor has any liability under this Letter Agreement other than to fund equity contributions and/or contribute Shares with respect to its Investor Commitment or (iii) against any Related Party (as defined below) of any Investor in violation of Section Item 10. Upon the termination of this Letter Agreement, no Investor shall have any liability or obligations hereunder. Sections Item 4, Item 5, Item 6, Item 8, Item 9, Item 10 and Item 14 shall survive any termination of this Letter Agreement. |
| Item 10 | No Recourse. |
| (a) Each party hereto, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no recourse under this Letter Agreement shall be had, including, without limitation, for any claims, obligations, liabilities, causes of action, or Legal Proceedings under this Letter Agreement (in each case, whether in tort, contract or otherwise, at law or in equity, or pursuant to statute), including, without limitation, those that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to, this Letter Agreement or the negotiation, execution, performance or breach of this Letter Agreement, including, without limitation, any representation or warranty made in, in connection with, or as an inducement to, this Letter Agreement (each of such above described legal or equitable theories or sources of liability, a “Claim”) against (i) any Related Party of any Investor (other than the Investors, Parent, Merger Sub and their respective successors and permitted assigns) or (ii) any Related Party of any of such Related Parties (other than the Investors, Parent, Merger Sub and their respective successors and permitted assigns), in each case whether by the enforcement of any assessment or by any legal or equitable proceedings, or by virtue of any statute, regulation or other applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred (whether by or through attempted piercing of the corporate (or limited liability company or limited partnership) veil, by or through a claim by or on behalf of Parent against any Related Party of an Investor, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise) by (x) any Related Party of any Investor (other than the Investors, Parent or Merger Sub and their respective successors and permitted assigns) or (y) any Related Party of any of such Related Parties (other than the Investors, Parent, Merger Sub and their respective successors and permitted assigns), in each case, for any obligations of an Investor under this Letter Agreement. For the purposes of this Letter Agreement, the term “Related Party” of any person shall mean any and all former, current or future directors, officers, employees, agents, direct or indirect equity holders, controlling persons, general or limited partners, managers, members, stockholders, co-investors, attorneys, financial or other professional advisors or lenders, representatives or Affiliates (other than a Permitted Assignee to which an assignment pursuant to Section 12 has been effected) of such person and their respective successors and permitted assigns. | |
| (b) Without limiting the generality of the foregoing, to the maximum extent permitted under applicable Law, Parent hereby waives, releases and disclaims any and all Claims including, without limitation, (i) against all Related Parties of the Investors and the Related Parties of such Related Parties, including, without limitation, any Claims to avoid or disregard the entity form of a Related Party of any Investors or a Related Party of such Related Parties or otherwise impose any liability arising out of, relating to or in connection with a Claim on any Related Parties of any Investors or Related Parties of such Related Parties, whether a Claim granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise, and (ii) of reliance upon any Related Parties of any Investors or Related Parties of such Related Parties with respect to the performance of this Letter Agreement or any representation or warranty made in, in connection with, or as an inducement to this Letter Agreement. | |
| (c) Under no circumstances shall any of the Investors, any Related Party of the Investors or the Co-Investors be liable for special, incidental, consequential, exemplary or punitive damages under or in connection with the Merger Agreement (provided that incidental and consequential damages may be recovered as provided in Section 8.3(g) of the Merger Agreement and under the Voting Agreement and the applicable Confidentiality Agreement, but solely to the extent such damages are available thereunder), this Letter Agreement or the transactions contemplated or otherwise incidental thereby or hereby. | |
| Item 11 | Limited Guarantee; Sole and Exclusive Remedy. Concurrently with the execution and delivery of this Letter Agreement and in accordance with and subject to the terms and conditions set forth in Section 4.10 of the Merger Agreement, the Investors are executing and delivering to Parent a limited guarantee, dated as of the date hereof (the “Limited Guarantee”). Notwithstanding anything to the contrary in this Letter Agreement, Parent’s remedies against the Investors expressly set forth under the Limited Guarantee shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investors and, without limiting the foregoing, the Company and the other Company Related Parties shall not have, and are not intended to have, any right of recovery of any kind (including, without limitation, consequential, indirect or punitive damages, and whether at law, in equity or otherwise) against the Investors in respect of any liabilities or obligations arising under, or in connection with this Letter Agreement, the Merger Agreement or the transactions contemplated thereby or the failure of the Merger to be consummated or otherwise in connection with the transactions contemplated hereby and thereby or in respect of any oral representations made or alleged to be made in connection therewith, including, without limitation, in the event Parent or Merger Sub breaches its obligations under the Merger Agreement and whether or not such breach is caused by an Investor’s breach of its obligations under this Letter Agreement, except for the right of the Company, assuming the conditions in Section Item 2 have been fully satisfied, to specifically enforce the provisions of this Letter Agreement pursuant to Section Item 8 (subject to and in accordance with Section 9.8(b) of the Merger Agreement). |
| Item 12 | No Assignment. This Letter Agreement and the benefits and obligations under this Letter Agreement may not be assigned by Parent, in whole or in part, without the prior written consent of each Investor and any attempted assignment in derogation of the foregoing shall be null and void and of no force and effect; provided, that no such assignment or transfer shall relieve Parent of its obligations hereunder. No assignment of this Letter Agreement or assignment (in whole or in part) by either Investor of such Investor’s rights or obligations hereunder shall be permitted without the prior written consent of Parent; provided, that each Investor shall be permitted to assign all or any part of its rights and obligations under this Letter Agreement without the prior consent of Parent or any other person to one or more of its Affiliates, investment funds managed by it or its Affiliates or any such Affiliates’ limited partners and/or managed entities and/or accounts and/or to one or more third party co-investors or any other Person (such Person, a “Permitted Assignee”); provided, further, that no such assignment or transfer to a Permitted Assignee shall relieve such Investor of its obligations hereunder except in respect of any portion of its Investor Commitment actually funded by such assignee and available to Parent at the Closing; provided, further, that that no Person shall be deemed a Permitted Assignee if assignment to such Person or entering into a corresponding commitment with such Person would result in any consent or approval of, or filing, declaration or registration with, any Governmental Authority being required in connection with Parent’s acquisition of the Company under the Merger Agreement that would reasonably be expected to delay the consummation of the Merger. Any purported assignment or transfer in violation of the preceding sentence shall be null and void. |
| Item 13 | Representations and Warranties. Each Investor represents and warrants to Parent that: (a) it is duly organized, validly existing and in good standing under the Laws of the state or jurisdiction of its organization; (b) it has the requisite capacity and authority to execute and deliver this Letter Agreement and to fulfill and perform its obligations hereunder; (c) the execution, delivery and performance of this Letter Agreement by it have been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of it are necessary therefor; (d) this Letter Agreement has been duly and validly executed and delivered by it and constitutes a legal, valid and binding agreement of it enforceable against it in accordance with its terms (subject, in the case of enforceability, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors rights generally and general principles of equity); (e) the execution, delivery and performance by it of this Letter Agreement do not and will not (i) violate any applicable Law or any provision of the partnership agreement, operating agreement or similar organizational documents of such Investor or (ii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of any benefit under, any material contract to which it is a party, except as does not prevent or materially delay or impair the performance of this Letter Agreement by such Investor; and (f) it has the financial capacity to pay and perform all of its obligations under this Letter Agreement, and will have sufficient cash on hand, or available and uncalled capital commitments available, to fund its Equity Financing Commitment when required pursuant to this Letter Agreement. |
| Item 14 | Confidentiality. This Letter Agreement shall be treated as confidential and is being provided to Parent solely in connection with the Transactions. This Letter Agreement may not be used, circulated, quoted or otherwise referred to in any document (other than the Merger Agreement, Guarantees and the Commitment Letters) by Parent or an Investor or their respective Affiliates (as defined in the Merger Agreement) except with the prior written consent of the other parties in each instance. The foregoing notwithstanding, this Letter Agreement will be provided to the Company and each party hereto and the Company may disclose the existence and terms of this Letter Agreement without obtaining the written consent of any person to its legal, accounting and financial advisers and other representatives, to the extent required by applicable Law or to the extent required by the applicable rules of any national securities exchange, to the extent required in connection with any filing with the Securities and Exchange Commission (“SEC”) relating to the Transactions (including in connection with any applicable statement on Schedule 13D (or any amendments thereto) filing with the SEC) or in connection with any litigation relating to this Letter Agreement, the Guarantees, the Merger Agreement and the transactions contemplated thereby; provided, that, in the case of any disclosure made in connection with any SEC filing, the disclosing party shall provide the other parties with a reasonable opportunity to review and provide comment on any such disclosure in advance, which such comments shall not be unreasonably delayed; provided, further, that the disclosing party shall in good faith consider any such comments made by such other parties. |
| Item 15 | Notice. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Letter Agreement shall be in writing and shall be deemed to have been given (a) when delivered or sent if delivered in person or sent by facsimile transmission (provided confirmation of facsimile transmission is obtained), (b) on the fifth (5th) Business Day after dispatch by registered or certified mail, (c) on the next Business Day if transmitted by national overnight courier for next day delivery or (d) on the date delivered if sent by e-mail (provided confirmation of e-mail receipt is obtained), in each case as follows. Notices, demands and communications, in each case to the respective parties, shall be sent to the applicable address set forth below, unless another address has been previously specified in writing by such party: |
| Notices to any Investor: |
|
c/o Elliott Management Corporation Isaac Kim
| |
| with a copy to (which alone shall not constitute notice): | |
| Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 Attention: Richard J. Birns Facsimile: (212) 716-0830 Email: rbirns@gibsondunn.com | |
| Notices to Parent: | |
| As provided in Section 9.2 of the Merger Agreement. | |
| Item 16 | Relationship of the Investors; Several Liability; Affiliates. Each party acknowledges and agrees that (a) this Letter Agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture relationship between or among any of the parties hereto and neither this Letter Agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, (b) the obligations of each of the Investors under this Letter Agreement are solely contractual in nature and (c) the determinations of the Investors were independent of each other. Notwithstanding anything to the contrary contained in this Letter Agreement, the liability of each Investor hereunder shall be several, not joint and several, based upon its respective Investor Commitment, and no Investor shall be liable for any amounts hereunder in excess of its Investor Commitment. Except as otherwise specified herein, the term “Affiliates” when used herein has the meaning set forth in the Merger Agreement except that the proviso thereto shall be replaced with the following: “provided, however, in no event shall Elliott Management Corporation or any of its Affiliates be considered an “Affiliate” of Siris Partners IV (Cayman) Main, L.P. and Siris Partners IV (Cayman) Parallel, L.P. or any of their Affiliates, or vice versa.” |
| Item 17 | Severability. Whenever possible, each provision of this Letter Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Letter Agreement is held to be prohibited by or invalid under applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Letter Agreement. |
[The remainder of this page is intentionally left blank.]
| Sincerely, | ||
| ElliotT Associates, l.p. | ||
| By: Elliott Capital Advisors, L.P., as General Partner | ||
| By: Braxton Associates, Inc., as General Partner | ||
| By: | /s/ Elliot Greenberg | |
| Name: Elliot Greenberg | ||
| Title: Vice President | ||
| ElliotT INTERNATIONAL, l.p. | ||
| By: Hambledon, Inc., as General Partner | ||
| By: Elliott International Capital Advisors, Inc., as Attorney-in-Fact | ||
| By: | /s/ Elliot Greenberg | |
| Name: Elliot Greenberg | ||
| Title: Vice President | ||
[Signature Page to Elliott Equity Commitment Letter]
| Agreed to and accepted: | ||
| TORO PRIVATE HOLDINGS III, LTD. | ||
| By: | /s/ Peter Berger | |
| Name: Peter Berger | ||
| Title: Director | ||
[Signature Page to Elliott Equity Commitment Letter]
SCHEDULE A
Equity Financing Commitments
|
INVESTOR |
COMMITMENT |
|
Elliott Associates, L.P. |
$ 155,882,810.36 |
|
Elliott International, L.P. |
$ 331,251,125.56 |
SCHEDULE B
Rollover Commitments
|
INVESTOR |
Number of Shares |
|
Elliott Associates, L.P. |
2,160,454 |
|
Elliott International, L.P. |
4,590,955 |
Exhibit 99.5
Siris Partners IV (Cayman)
Main, L.P.
Siris Partners IV (Cayman) Parallel, L.P.
c/o Siris Capital Group, LLC
601 Lexington Avenue, 59th Floor
New York, New York 10022
December 9, 2018
Elliott Associates, L.P.
Elliott International, L.P.
c/o Elliott Management Corporation
40 West 57th Street
New York, NY 10019
Attention: Jesse Cohn and Isaac Kim
Re: Interim Investors Letter Agreement
Ladies and Gentlemen:
This letter agreement is entered into by Toro Private Holdings III, Ltd. (“Parent”), Siris Partners IV (Cayman) Main, L.P. and Siris Partners IV (Cayman) Parallel, L.P. (collectively, “Sierra”) and Elliott Associates, L.P. and Elliott International, L.P. (collectively, “Echo”).
1. Background. Pursuant to an Agreement and Plan of Merger, dated as of December 9, 2018 (as it may be amended from time to time, the “Merger Agreement”), by and between Parent, following the execution of a joinder, Toro Private Holdings IV, Ltd. (“Merger Sub”), and Travelport Worldwide Limited, a Bermuda exempted company (the “Company”), Merger Sub shall, subject to the terms and conditions set forth in the Merger Agreement, merge with and into the Company (the “Merger”). In connection with the Merger Agreement, each Investor (as defined below) has (i) entered into an Equity Commitment Letter, dated as of the date hereof, with Parent (each, a “Commitment Letter”), pursuant to which, subject to the terms thereof, (x) each such Investor has agreed to contribute or cause to be contributed to Parent an aggregate amount of cash specified in its Commitment Letter and (y) Echo has agreed to contribute, assign, transfer or deliver (or cause the contribution, assignment, transfer or delivery of) to Parent a number of Company Common Shares specified (and as defined) in its Commitment Letter, and (ii) a Limited Guarantee, dated as of the date hereof, with the Company (each a, “Guarantee”) in respect of certain payment obligations. For purposes of this letter agreement: (a) each of Sierra and Echo is referred to herein, individually, as an “Investor” and, collectively, as the “Investors”; (b) “affiliate” of a particular Person means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person (including affiliated investment funds of such Person but excluding any portfolio companies of such Person and its affiliates); and (c) capitalized terms used and not otherwise defined herein have the meanings ascribed to them in the Merger Agreement.
2. Pre-Closing Matters.
2.1 Pre-Closing Decision Making; Certain Pre-Closing Approvals. Prior to the Closing, Parent shall be managed by Sierra and, subject to the specific limitations set forth in this Section 2.1, all actions and decisions of Parent relating to the Merger Agreement, any related agreements, any financing arrangements and the Merger, including any negotiations relating to any of the foregoing, shall be made by Sierra. Subject to the specific limitations set forth in this Section 2.1, Sierra (i) shall promptly deliver, or cause to be delivered, to Echo copies of all requests for consents, waivers, notices and other communications delivered to Parent and/or Merger Sub pursuant to Section 9.2 of the Merger Agreement and (ii) may cause Parent and Merger Sub to take any action it deems necessary or appropriate to permit Parent and Merger Sub to comply with their respective obligations under the Merger Agreement, satisfy closing conditions and exercise their rights or remedies under the Merger Agreement. The following actions by Parent and/or Merger Sub shall require the prior written approval of Echo:
| (i) | any amendment of the Merger Agreement providing for an increase in the Per Share Price (or any modification to the form of such consideration) or any material modification to Section 2.8 of the Merger Agreement; |
| (ii) | any amendment of the Merger Agreement providing for an increase in the Parent Termination Fee or any modification to the form of such payment; |
| (iii) | any amendment of the Merger Agreement providing for an extension of the Termination Date (as defined in the Merger Agreement as in effect on the date hereof) by more than 90 days; |
| (iv) | any amendment of the Merger Agreement that would likely prevent or materially delay the consummation of the Merger (other than any extension of the Termination Date permitted by clause (iv) above); |
| (v) | any other amendment of the Merger Agreement that discriminates against Echo in a manner that is, or is reasonably expected to be, disproportionately adverse to Echo; |
| (vi) | the making of any determination that any of the conditions set forth in Sections 7.1 and 7.2 of the Merger Agreement have not been satisfied, or the waiver any of such conditions; |
| (vii) | any amendment to the definition of “Affiliate” or Section 6.2(e) of the Merger Agreement, or any amendments having a similar impact expanding the scope of regulatory commitments; and |
| (viii) | delivery of any notice of termination under Section 8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e) or 8.1(f) of the Merger Agreement. |
2.2 Deadlock; Default. (a) If Echo does not approve an action for which its approval is required under Section 2.1 (other than Sections 2.1(v), (vii) or (viii)), then Echo shall, upon the written direction of Sierra, withdraw from its participation in the Merger; provided that, concurrently with such withdrawal, Sierra shall assume (or shall procure that a third party assumes), or otherwise cause Echo to be released from, all of its obligations under its Commitment Letter and its Guarantee and enter into arrangements reasonably satisfactory to Echo to release and discharge Echo from any and all obligations and other liabilities arising out of or related to the Transactions (except as provided in 2.7 and 2.8 of this letter agreement and Section 4 of the Governance Letter Agreement (as defined below)). If (i) any state of fact exists or arises concerning Echo that causes or would reasonably be expected to cause Parent to be in breach of any of Parent’s covenants or representations and warranties under the Merger Agreement and that would or would reasonably be expected to prevent or materially delay the consummation of the Merger; provided that if such state of facts is capable of being cured, Sierra shall provide notice to Echo and shall not be entitled to cause Echo’s withdrawal under this Section 2.2 unless such state of facts has not been cured prior to the earlier of (A) the end of the 10-Business Day period following delivery of such notice and (B) the close of business on the Business Day prior to the last day of the 30-day period contemplated by Section 8.1(g) of the Merger Agreement, if applicable, (ii) Echo takes any action that causes or would reasonably be expected to cause Parent to be in breach of any covenants or representations and warranties under the Merger Agreement and that would or would reasonably be expected to prevent or materially delay the consummation of the Merger; provided that if such action is capable of being cured, Sierra shall provide notice to Echo and shall not be entitled to cause Echo’s withdrawal under this Section 2.2 unless such action has not been cured prior to the earlier of (A) the end of the 10-Business Day period following delivery of such notice and (b) the close of business on the Business Day prior to the last day of the 30-day period contemplated by Section 8.1(g) of the Merger Agreement, if applicable, or (iii) if the Company alleges in good faith in writing that Parent is in breach of any of its covenants or representations and warranties in the Merger Agreement (which breach cannot be cured within the time period provided in the Merger Agreement such that the Company’s conditions to closing would be satisfied) and such breach is premised on a state of facts concerning or action taken by Echo, then, upon the written direction of Sierra, Echo shall withdraw from its participation in the Merger; provided that, concurrently with such withdrawal, Sierra shall assume (or shall procure that a third party assumes), or otherwise cause Echo to be released from, all of its obligations under its Commitment Letter and its Guarantee. The withdrawal of Echo’s participation in the Merger under the circumstances described in the immediately preceding sentence shall not affect, alter or impair Parent’s, Merger Sub’s or Sierra’s rights or remedies against Echo under this letter agreement, the Equity Commitment Letters, the Guarantees, the Merger Agreement or any other related agreement; provided that, except (x) as set forth in Section 2.4 and (y) for liabilities or obligations pursuant to Section 4 of the Governance Letter Agreement, in no event shall Echo be liable for any amounts in excess of the Echo Cap (as defined in the Governance Letter Agreement).
2.3 Sierra as Declining Investor. In the event that Echo does not approve an action for which its approval is required under Section 2.1(viii) and Sierra declines to proceed with the Transactions, then Sierra shall be permitted to withdraw from its participation in the Merger and Echo shall (i) assume (or shall procure that a third party assumes), or otherwise cause Sierra to be released from, all of its obligations under its Commitment Letter and its Guarantee, (ii) acquire Toro Private Investments, L.P. (“Holdings”) and, thereby, the Subsidiaries of Holdings (including Parent and Merger Sub) from Sierra (the “Entity Transfer”) and (iii) enter into arrangements reasonably satisfactory to Sierra to (x) from and after the date of Sierra’s withdrawal, defend, indemnify and hold Sierra harmless from and against any and all obligations and other liabilities of Holdings and its Subsidiaries (including Parent and Merger Sub) and (y) release and discharge Sierra from any and all obligations and other liabilities arising out of or related to the Transactions (except as provided in Sections 2.7 and 2.8 of this letter agreement and Section 4 of the Governance Letter Agreement). In connection with the foregoing, Sierra shall, and shall cause Holdings and its Subsidiaries (including Parent and Merger Sub) to, reasonably cooperate with and assist Parent to effect the Entity Transfer in order to permit Echo to proceed with the Transactions.
2.4 Default Amounts. If (i) the Merger Agreement is terminated by the Company pursuant to Section 8.1(i) of the Merger Agreement and the Company is entitled to receive the Parent Termination Fee in accordance with Section 8.3(c) of the Merger Agreement or the Merger Agreement is otherwise terminated and Parent thereafter is liable for the payment of damages as contemplated by Section 8.3(f)(i)(2) of the Merger Agreement and (ii) Parent’s obligation to pay the Parent Termination Fee or such damages is primarily a result of any actions or inactions of, or state of facts concerning, an Investor, then, such Investor shall (a) bear (and to the extent applicable, reimburse the other Investor) 100% of the Parent Termination Fee plus any Reimbursement Obligations or such damages (and any related costs, fees and expenses), as applicable, and (b) reimburse the other Investor for all of its Shared Costs and Individual Costs (as defined in the Governance Letter Agreement).
2.5 RESERVED.
2.6 RESERVED.
2.7 Exclusivity. Echo and Sierra each agree that from the date hereof until the earlier to occur of the termination of the Merger Agreement and the Closing, it shall not become affiliated with, enter into or continue any discussions with, or propose to make (or make) any equity investment with, any private equity firm (other than Sierra (and its limited partners) or Echo, as applicable) or any other Person (other than the limited partners of Sierra) in respect of any Acquisition Proposal (including by engaging in any advisory or lending activities); provided, however, that the foregoing shall not be deemed to prohibit any affiliate of Echo or Sierra from engaging in its trading, asset management or other applicable financial services activities in the ordinary course of its business or from taking such actions in connection with a withdrawal by the other Investor pursuant to Section 2.2 or Section 2.3, as applicable.
2.8 Publicity. Each Investor shall coordinate in good faith any and all press releases and other public relations matters with respect to the Merger. Unless otherwise required by law or the rules of any stock exchange or regulatory authority, no Investor may issue any press release or otherwise make any public announcement or comment on the Merger without prior coordination with the other Investor.
3. Efforts Covenant. (a) Each Investor shall cooperate and use reasonable efforts to comply with, and facilitate the Parent’s compliance with, the obligations of Parent and Merger Sub pursuant to Merger Agreement, subject to the limitations set forth in the Merger Agreement, the Commitment Letters and the Guarantees, and Echo shall comply with its obligations under the Voting Agreement.
4. Ownership Interest in Holdings. Substantially concurrently with the Closing, Sierra shall, or shall cause Holdings to, provide evidence of book entry delivery reasonably satisfactory to Echo of Echo’s equity interest in Holdings in such proportion to (and pari passu with) Sierra’s equity interest in Holdings as reflects their relative contributions to Holdings at or in connection with the Closing.
5. Notice of Closing. Parent and Merger Sub will use their reasonable best efforts to provide each Investor with at least three (3) days’ prior notice of the Closing Date under the Merger Agreement; provided, that the failure to provide such notice will not relieve an Investor of its obligations under this letter agreement.
6. Cooperation With Respect to Limited Guarantees. Each of the Investors (each, a “Limited Guarantor” and collectively, the “Limited Guarantors”) shall cooperate in defending any claim that the Limited Guarantors are or any one of them is liable to make payments under the Guarantees.
7. Company Securities. Except as otherwise contemplated by the Merger Agreement and Sierra’s Commitment Letter, from the date hereof until the termination of this letter agreement, Sierra shall not purchase or otherwise acquire beneficial ownership of any securities of the Company.
8. Representations and Warranties. Sierra hereby represents and warrants to Echo that each of Parent and Merger Sub were formed solely for the purpose of engaging in the transactions contemplated hereby and by the Merger Agreement and, prior to the Effective Time, neither Parent nor Merger Sub will have engaged in any other business activities, nor will they have incurred any liabilities or obligations other than in connection with the transactions contemplated hereby and by the Merger Agreement. Each of the Investors hereby represents and warrants to the other Investor as of the date hereof as follows:
| (a) | Such party is duly organized or incorporated, validly existing and in good standing under the Laws of the jurisdiction of its organization or incorporation and has all requisite power and authority (acting through its general partners, as applicable) to conduct its business as it is now being conducted and is proposed to be conducted. |
| (b) | Such party has the full power, authority and legal right (acting through its general partner, as applicable) to execute, deliver and perform this letter agreement and to consummate the transactions contemplated herein. The execution, delivery and performance of this letter agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary action, corporate or otherwise, of such party. This letter agreement has been duly executed and delivered by such party and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer and similar laws of general applicability relating to or affecting creditor’s rights and to general equitable principles. |
9. General. Nothing in this letter agreement is intended to, or shall, create any agency, partnership, fiduciary or joint venture relationship between the Investors. No amendment, modification or waiver of any provision hereof shall be enforceable unless approved by each Investor in writing. Together with the Merger Agreement, the Guarantees, the Equity Commitment Letters and any confidentiality agreement, letter agreement regarding governance (the “Governance Letter Agreement”), non-reliance letter or similar agreement entered into in connection with the Investors’ evaluation of the Merger, this letter agreement contains the entire agreement between the Investors with respect to the subject matter hereof and supersedes all prior agreements, understandings and statements, written or oral, among the Investors or their respective affiliates, with respect to the subject matter hereof. This letter agreement and the benefits and obligations under this letter agreement may not be assigned by an Investor, in whole or in part, without the prior written consent of the other Investor and any attempted assignment in derogation of the foregoing shall be null and void and of no force and effect. This letter agreement may be executed in any number of counterparts (including by facsimile or via email by .pdf delivery), each such counterpart when executed being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement. Facsimile and other electronically scanned signatures shall be deemed originals for all purposes of this letter agreement.
10. Governing Law. This letter agreement and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this letter agreement or the negotiation, execution or performance of this letter agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with letter), shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of another jurisdiction. Each Investor irrevocably agrees that any legal action or proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other Investor, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT.
11. No Recourse. Each Investor, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no recourse under this letter agreement shall be had, including, without limitation, for any claims, obligations, liabilities, causes of action, or Legal Proceedings under this letter agreement (in each case, whether in tort, contract or otherwise, at law or in equity, or pursuant to statute), including, without limitation, those that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to this letter agreement, or the negotiation, execution, performance, or breach of this letter agreement (each of such above-described legal or equitable theories or sources of liability, a “Claim”) against (i) any Related Party of any Investor or (ii) any Related Party of any of such Related Parties, in each case whether by the enforcement of any assessment or by any legal or equitable proceedings, or by virtue of any statute, regulation or other applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred (whether by or through attempted piercing of the corporate (or limited liability company or limited partnership) veil, by or through a Claim by or on behalf of an Investor against any Related Party of an Investor, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise) by (x) any Related Party of any Investor (other than the Investors, Parent or Merger Sub and their respective successors and permitted assigns) or (y) any Related Party of any of such Related Parties, in each case, for any obligations of an Investor under this letter agreement. For the purposes of this Letter Agreement, the term “Related Party” of any Person shall mean any and all former, current or future directors, officers, employees, agents, direct or indirect equity holders, controlling persons, general or limited partners, managers, members, stockholders, co-investors, attorneys, financial or other professional advisors or lenders, representatives or affiliates of such person and their respective successors and permitted assigns; provided, that in no case shall Sierra or Echo be Related Party of any Investor or a Related Party of any of the Related Parties.
12. Effective Date; Termination. This letter agreement is effective as of the date first written above. This letter agreement shall terminate upon the earlier of the (i) the Closing, (ii) any termination of the Merger Agreement in accordance with its terms and (iii) any withdrawal of Echo in accordance with Section 2.2 or (iv) any withdrawal by Sierra in accordance with Section 2.3; provided that Section 2.2 (Deadlock; Default), Section 2.3 (Sierra as Declining Investor) Section 2.4 (Default Amounts), Section 2.7 (Exclusivity), Section 2.8 (Publicity) and Section 12 (No Recourse) shall each survive the termination of this letter agreement pursuant to clauses (ii), (iii) or (iv) of this sentence and remain in full force and effect and no such termination shall relieve an Investor of any breach or alleged breach of this letter agreement that occurs (or is alleged to have occurred) prior to such termination.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned have caused this Letter Agreement to be executed as of the date first written above.
| TORO PRIVATE HOLDINGS III, LTD | |||
| By: | /s/ Peter Berger | ||
| Name: | Peter Berger | ||
| Title: | Director | ||
[Signature Page to Interim Investors Agreement]
| SIRIS PARTNER IV (CAYMAN) MAIN, L.P. | |||
| By: Siris Partners IV (Cayman) GP, L.P., its General Partner | |||
| By: Siris Partners IV (Cayman) GP, L.P., its General Partner | |||
| By: | /s/ Peter Berger | ||
| Name: | Peter Berger | ||
| Title: | Director | ||
| SIRIS PARTNERS IV (CAYMAN) PARALLEL, L.P. | |||
| By: Siris Partners IV (Cayman) GP, L.P., its General Partner | |||
| By: Siris Partners IV (Cayman) GP, L.P., its General Partner | |||
| By: | /s/ Peter Berger | ||
| Name: | Peter Berger | ||
| Title: | Director | ||
[Signature Page to Interim Investors Agreement]
| ELLIOTT ASSOCIATES, L.P. | |||
| By: Elliott Capital Advisors, L.P., as General Partner | |||
| By: Braxton Associates, Inc., as General Partner | |||
| By: | /s/ Elliot Greenberg | ||
| Name: | Elliot Greenberg | ||
| Title: | Vice President | ||
| ELLIOTT INTERNATIONAL, L.P. | |||
| By: Hambledon, Inc., as General Partner | |||
| By: Elliott International Capital Advisors, Inc., as | |||
| Attorney-in-Fact | |||
| By: | /s/ Elliot Greenberg | ||
| Name: | Elliot Greenberg | ||
| Title: | Vice President | ||
[Signature Page to Interim Investors Agreement]