The Merger Agreement contains certain termination rights for the Company, on the one hand, and CWT, on the other hand, including the failure of the Mergers to be consummated by the date that is ten (10) months after the date of the Merger Agreement (the “Drop Dead Date”), which may be extended at the option of the Company or CWT to a date that is fourteen (14) months after the date of the Merger Agreement (the “Extended Drop Dead Date”) and subsequently extended to a date that is eighteen (18) months after the date of the Merger Agreement (the “Second Extended Drop Dead Date”), in each case, if all conditions to the Closing, other than certain conditions relating to antitrust laws or foreign investment laws, have been satisfied or waived on or prior to such date. If the Merger Agreement is terminated in certain instances for failure to consummate the Mergers by the Drop Dead Date (as a result of certain conditions relating to antitrust laws or foreign investment laws failing to be satisfied or waived), the Company will be required to pay CWT a termination fee of $32,000,000. If the Company, but not CWT, extends the Drop Dead Date and the Merger Agreement is subsequently terminated in certain instances for failure to consummate the Mergers by the Extended Drop Dead Date (as a result of certain conditions relating to antitrust laws or foreign investment laws failing to be satisfied or waived), the Company will be required to pay CWT a termination fee of $33,500,000. If the Company, but not CWT, extends the Extended Drop Dead Date and the Merger Agreement is subsequently terminated in certain instances for failure to consummate the Mergers by the Second Extended Drop Dead Date (as a result of certain conditions relating to antitrust laws or foreign investment laws failing to be satisfied or waived), the Company will be required to pay CWT a termination fee of $35,000,000 (the applicable fee payable by the Company, the “Reverse Termination Fee”).

At the Closing, the Company will enter into a registration rights agreement (the “Registration Rights Agreement”) pursuant to which, among other things, the Company will agree to register for resale, pursuant to Rule 415 under the Securities Act, shares of its Common Stock that are issued to the Members in connection with the Mergers and who duly execute and deliver a signature page to the Registration Rights Agreement. The Merger Agreement provides that (a) until the date that is ninety (90) days following the date of the Closing, no Member shall, subject to certain exceptions, directly or indirectly, transfer any shares of Common Stock issued to such Member pursuant to the Merger Agreement and (b) from and after the date that is ninety-one (91) days following the date of the Closing until the date that is two hundred and seventy (270) days following the date of the Closing, no Member shall transfer more than fifty percent (50%) of the shares of Common Stock issued to such Member pursuant to the Merger Agreement.

The Company and CWT also made customary representations and warranties in the Merger Agreement and CWT agreed to customary covenants regarding the operation of the business of CWT and its subsidiaries prior to the Closing. The representations, warranties, covenants and agreements of the parties to the Merger Agreement do not survive the Closing, except for those covenants and agreements that by their terms require performance at or after the Closing, and such covenants or agreements shall survive until fully performed. The Company obtained a representation and warranty insurance policy in connection with the Mergers. The Merger Agreement also provides that the Company, on one hand, or CWT, on the other hand, may specifically enforce the obligations under the Merger Agreement, including the obligation to consummate the Closing if the conditions set forth in the Merger Agreement are satisfied.

The foregoing descriptions of the Merger Agreement, the Registration Rights 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 and the Registration Rights Agreement, each of which is attached as Exhibit 2.1 (with the Registration Rights Agreement attached as an exhibit to the Merger Agreement) and is incorporated by reference herein. The Merger Agreement and the Registration Rights Agreements have been included to provide investors with information regarding their terms and are not intended to provide any other factual information about the Company, Merger Subs, CWT, the Member Representative or their respective subsidiaries or affiliates. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger Agreement as of the specific dates therein, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk among the parties to the Merger Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be reflected in the Company’s public disclosures.

This communication contains statements that are forward-looking and as such are not historical facts. This includes, without limitation, statements regarding our financial position, business strategy, and the plans and objectives of management for future operations and full-year guidance. These statements constitute projections, forecasts and forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “will,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking.

The forward-looking statements contained in this communication are based on our current expectations and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments affecting us, including as a result of the transaction, will be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, the following risks, uncertainties and other factors: (1) changes to projected financial information or our ability to achieve our anticipated growth rate and execute on industry opportunities; (2) our ability to maintain our existing relationships with customers and suppliers and to compete with existing and new competitors; (3) various conflicts of interest that could arise among us, affiliates and investors; (4) our success in retaining or recruiting, or changes required in, our officers, key employees or directors; (5) factors relating to our business, operations and financial performance, including market conditions and global and economic factors beyond our control; (6) the impact of geopolitical conflicts, including the war in Ukraine and the conflicts in the Middle East, as well as related changes in base interest rates, inflation and significant market volatility on our business, the travel industry, travel trends and the global economy generally; (7) the sufficiency of our cash, cash equivalents and investments to meet our liquidity needs; (8) the effect of a prolonged or substantial decrease in global travel on the global travel industry; (9) political, social and macroeconomic conditions (including the widespread adoption of teleconference and virtual meeting technologies which could reduce the number of in-person business meetings and demand for travel and our services); (10) the effect of legal, tax and regulatory changes; (11) the decisions of market data providers, indices and individual investors; (12) the outcome of any legal proceedings that may be instituted against the Company or CWT following the announcement of the Merger Agreement; (13) the inability to complete the Mergers; (14) delays in obtaining, adverse conditions contained in, or the inability to obtain necessary regulatory approvals or complete regulatory reviews required to complete the Mergers; (15) the risk that the transaction disrupts current plans and operations as a result of the announcement and consummation of the transaction; (16) the inability to recognize the anticipated benefits of the transaction, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain key employees; (17) costs related to the transaction; (18) risks related to the business of CWT or unexpected liabilities that arise in connection with the transaction or the integration of CWT; (19) the risk that the assumptions, estimates and estimated adjustments described in this communication may prove to be inaccurate; and (20) other risks and uncertainties described in the Company’s Form 10-K, filed with the SEC on March 13, 2024, and in the Company’s other SEC filings. Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

 

 

* The exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5) and Item 601(b)(2). The Company agrees to furnish supplementally a copy of such exhibits and schedules, or any section thereof, to the SEC upon its request.