General Agreement - priceline.com Inc., PriceLine Travel Inc. and Delta Air Lines Inc.
GENERAL AGREEMENT
This General Agreement (this "AGREEMENT"), dated August 31, 1998, is by
and among priceline.com Incorporated, a Delaware corporation with an address at
Five High Ridge Park, Stamford, Connecticut 06905 ("PRICELINE INC."), PriceLine
Travel, Inc., a Delaware corporation with an address at 5 High Ridge Park,
Stamford, Connecticut 06905 ("PRICELINE TRAVEL" and, together with Priceline
Inc., being collectively referred to herein as "PRICELINE"), and Delta Air
Lines, Inc., a Delaware corporation, having a principal place of business at
1030 Delta Boulevard, Hartsfield Atlanta International Airport, Atlanta, Georgia
30320 ("DELTA").
RECITALS:
Delta is a major carrier providing scheduled air transportation
services to domestic and international destinations. Priceline provides a
service that allows consumers to purchase airline tickets at an offer price
determined by the consumer (the "PRICELINE SERVICE").
Priceline desires that Delta become a participating carrier in the
Priceline Service pursuant to the terms of this Agreement and two related
agreements dated as of the date hereof between Delta and Priceline: (i) a
Participating Carrier Agreement (the "PCA") and (ii) a Participation Warrant
Agreement (the "PWA") (this Agreement, the PCA and the PWA are collectively
referred to herein as the "Transaction Documents"). Delta desires to participate
in the Priceline Service, subject to the terms and conditions set forth in the
Transaction Documents.
In consideration of the covenants and agreements set forth in the
Transaction Documents, the parties agree as follows:
1. DEFINITIONS
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As used in this Agreement, terms with their initial letters capitalized
(or otherwise defined) shall have the meanings assigned to them in this
Agreement or, if not defined herein, the meanings assigned in the
other Transaction Documents.
2. TEST AND EVALUATION OF PRICELINE SERVICE
2.1 Delta will make available a limited number of unpublished
fares to Priceline in select origin and destination city
pairs identified by Delta for a test period. The test period
shall begin following the execution of this Agreement and
continue thereafter for a period of not greater than 60 days
(the "TEST PERIOD").
2.2 The purpose of the Test Period is to permit Delta to test and
evaluate the Priceline Service, and address staffing and
technical issues prior to the implementation of Delta's full
participation in the Priceline Service.
2.3 During the Test Period, and following the successful
completion of the Test Period, Delta's participation in
Priceline will be subject to the terms of the Transaction
Documents.
2.4 At the close of the Test Period, Delta will notify Priceline
as to its determination of whether the test of Delta's
participation in the Priceline Service is successful, which
determination shall be binding on Priceline.
(i) If the test is successful, then Delta shall continue its
participation in the Priceline Service in accordance
with the terms of the Transaction Documents.
(ii) If the test is not successful, then the parties shall
meet to determine if any modification to the Priceline
Service or Delta's participation can be made to cause
Delta's participation to be successful. If no agreement
can be reached then, notwithstanding any provision to
the contrary in the Transaction Documents, Delta or
Priceline may terminate the Transaction Documents on
written notice to the other party. Delta and
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Priceline agree that, if Delta determines that the test
is not successful and the Transaction Documents are
terminated, then neither Delta nor Priceline will claim
any damages against the other, and each party will
return all Confidential Information to the disclosing
party.
3. CARRIER PARTICIPATION, CHANGES TO RESTRICTIONS AND SOFTWARE LICENSE
Subject to Section 3.5 below, Delta and Priceline agree that, during
the term of the PCA:
3.1 (i) all airlines which have signed an agreement with
Priceline to participate in the Priceline Service as of the
date hereof (as identified in the attached Schedule 3.1
hereof) may continue such participation; (ii) for a six (6)
month period following the completion of the Test Period (the
"TRANSITION PERIOD") Priceline will not add any additional
airlines to the Priceline Service without Delta's prior
written consent; PROVIDED, HOWEVER, that Delta agrees to
consent to the inclusion (on a test basis with Delta's
approval of the test O&D markets) of any one additional
carrier with a domestic market share greater than [**] [as
measured in revenue passenger miles reported on U.S.
Department of Transportation ("DOT") Form 41 ("RPMS")] if
such carrier's participation is limited to an extent that
its participation, in Delta's reasonable business judgment,
will not interfere with Delta's evaluation of the Priceline
Service during the Transition Period; (iii) Priceline will
use its best efforts to recruit [**] as a Priceline Service
participant prior to the inclusion of any other major
airline, excepting [**]; and (iv) after the Transition
Period, Priceline may add additional U.S. domestic carriers
to the Priceline Service which are acceptable to Delta (as
reflected by Delta's written consent), with a goal of
including in the Priceline Service a total number of
domestic airline participants so that the sum total
domestic market share of all such participating airlines
will, in an annual measuring period, represent [**] of all
U.S. domestic RPMs (the "RANGE"). Notwithstanding the
foregoing, but subject in all cases to the Range, Priceline
may, (x) during and after the Transition Period, include
in the Priceline Service [**]; (y) following the Transition
Period, Delta may require, as a condition to the inclusion
in the Priceline Service of any additional U.S. domestic
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carrier which has a domestic market share of greater than
[**] of U.S. domestic RPMs, the exclusion of specific markets
(including cities served to/from specified airports) from
such carrier's participation, and (z) the inclusion of
additional international carriers in the Priceline Service
will be subject to the prior written approval of Delta.
3.2 All Priceline Tickets issued on Delta and all other airlines
participating in the Priceline Service (the "PARTICIPATING
CARRIERS") shall be subject to the Restrictions.
3.3 If during any two consecutive months during the term of the
PCA, the number of Priceline Tickets sold on Participating
Carriers that do not include a Saturday night stay is greater
than 10% of all Priceline Tickets sold on Participating
Carriers during such period, then Priceline shall include and
shall require as part of the Restrictions a Saturday night
stay for all Priceline Ticket sales.
3.4 LICENSE OF PRICELINE SOFTWARE. In the event that one of the
eight largest U.S. airlines or five largest foreign flag
carriers (measured in each case using total revenue passenger
miles) offers a service that allows consumers to purchase
airline tickets at an offer price determined by the consumer
that is comparable to the Priceline Service, then Priceline
will, at Delta's request, grant to Delta a non exclusive
license to independently use the software developed by
Priceline for the Priceline Service (the "PRICELINE
SOFTWARE"') and, if requested by Delta, will operate the
Priceline Software on behalf of Delta, in each case on
commercially reasonable terms prevailing at the time.
Notwithstanding anything to the contrary set forth in this
Section 3.4, (i) Priceline will not sell, transfer, license
or operate the Priceline Software to or for the benefit of
any other airline, travel agent, travel provider, computer
reservation system ("CRS"), or the affiliates of such
companies (each, including affiliates, a "TRAVEL COMPANY")
for use in the United States without Delta's prior written
consent, and (ii) Priceline will not sell, transfer, license
or operate the Priceline Software to or for the benefit of
any other Travel Company, without Delta's prior written
consent, for use outside the United States; provided, Delta
will consent to a sale, transfer, license or operation
outside the United States where such Travel Company (x) gives
Delta
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the fight to participate in the Travel Company's program on
commercially reasonable terms that are no less favorable
than those offered to any other participating airline, (y)
agrees that the Restrictions shall apply to any flights to or
from the United States, and (z) does not, directly or
indirectly, through an affiliate or otherwise, have an
existing contractual or agency relationship with Delta.
Further, insofar as Priceline licenses or operates the
Priceline Software to or for the benefit of any other party,
any license or operation of the Priceline Software to or for
the benefit of Delta as permitted by this Section 3.7 shall
be on no less favorable terms and conditions than those
granted by Priceline to any such third party. In addition,
any sale, transfer or license of the Priceline Software
shall restrict the third party from selling, transferring,
licensing or operating the software for the use or benefit
of any Travel Company. As used herein, the term "Priceline
Software" shall include, without limitation, materials,
databases, development environment, modifications and
associated intellectual property pertaining to embodied in,
comprising, used or necessary for the operation or support
of the Priceline Software or its derivative works.
3.5 LIMITATION ON SECTION 3 RIGHTS. The rights of Delta as set
forth in Sections 3.1-3.4 above and any license or operation
of the Priceline Software granted or provided by Priceline
under Section 3.4 shall automatically terminate, and shall be
of no further force or effect, in the event that Delta fails
to achieve the "MINIMUM THRESHOLD." For the period beginning
January 1, 1999 through December 31, 2004, Delta will fail to
achieve the Minimum Threshold if domestic Priceline Tickets
sold on Delta are (i) less than [**] and (ii) constitute less
than [**] of total domestic U.S. Priceline Ticket sales on
all airlines (including Delta), in each case during any two
consecutive calendar quarters commencing with the calendar
quarter beginning January 1, 1999. For the period beginning
January 1, 2005 through December 31, 2009, Delta will fail to
achieve the Minimum Threshold if Priceline Tickets sold for
travel on Delta constitute less than [**] of total domestic
U.S. Priceline Ticket sales on all airlines (including
Delta), in each case during any two consecutive calendar
quarters commencing with the calendar quarter beginning
January 1, 2005. For purposes of this section, sales on Delta
shall include sales
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on Delta and its code share partners. Notwithstanding the
foregoing, Delta shall continue to enjoy the rights granted
under Sections 3.1-3.4 above if this Agreement (or the PCA)
is terminated solely as a result of Priceline's material
breach (which breach was not cured as required by Paragraph
VIII.2 of the PCA), and Delta has met the Mini mum Threshold
as required by this Section 3.5. In calculating the dollar
amount and percentage amount specified in this Section 3.5,
in the event that an additional U.S. domestic carrier is
added as a Participating Carrier any time after the date
hereof and during the term of this Agreement, the parties
agree that the Minimum Threshold shall be reduced
proportionately to reflect the proportionate decrease in
Delta's resulting U.S. domestic market share as compared with
all other Participating Carriers. The dollar and/or
percentage amount shall be adjusted upon the admission of an
additional U.S. domestic carrier by multiplying such amount
by a fraction, the numerator of which shall be Delta's U.S.
domestic RPMs and the denominator of which shall be Delta's
U.S. domestic RPMs and the aggregate U.S. domestic RPMs of
the new additional U.S. domestic carrier and all other U.S.
domestic Participating Carriers. During the period of any
Force Majeur Event, the measuring periods herein shall be
extended by one day for each day of such Force Majeur Event.
For purposes of the Transaction Documents, if DOT Form 41 is
discontinued, such measurement will be based on domestic
revenue passenger miles as reported in industry publications.
4. CONFIDENTIAL
The confidentiality provisions of the PCA shall fully apply to this
Agreement as if set forth herein and shall remain in force during the
term of this Agreement.
5. PROPRIETARY MARKS
This Agreement shall not be construed to give Priceline or Delta the
right to use the other party's trademarks, trade names, service marks,
logos, emblems, symbols or other brand identifiers in advertising or
marketing materials, without the prior written approval of the other
party.
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6. TERM OF AGREEMENT
6.1 This Agreement will commence on the date set forth above and
will continue for the term of the PCA.
6.2 The obligations of the parties under Sections 4 and 8 of this
Agreement shall indefinitely survive the expiration or any
termination of this Agreement.
7. PCA RELATED MATTERS
Unless otherwise agreed in writing by Delta and Priceline, during the
term of the PCA:
7.1 Priceline shall use reasonable best efforts to include
Delta's marketing partners (as identified by Delta from time
to time) in any packaged tour, hotel and/or rental car
services or products offered by Priceline through the
Priceline Service on terms and conditions no less favorable
than those offered to any other competing participant.
7.2 Priceline agrees to fulfill all Priceline ticket requests
allocable to Delta under the first look and second look as
set forth in Paragraph III of the PCA, at the "Highest
Qualifying Fare" available from Delta. As used herein, the
term "HIGHEST QUALIFYING FARE" means the highest priced Delta
unpublished fare meeting the Priceline customer's offer price
and other terms, plus the amount of Priceline's minimum
ticket sale margin as established from time to time by
Priceline and notified to Delta.
7.3 All Priceline tickets sold on Delta will be settled through
ARC; provided, the parties agree to work diligently and in
good faith to establish and implement a direct settlement
arrangement between PriceLine Travel and Delta within six
months following the completion of the Test Period.
7.4 [**]
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7.5 Priceline will require Participating Carriers to file
unpublished fares for Priceline Tickets through the WORLDSPAN
CRS; provided, Delta will have the option to file its fares
through Delta's internal reservation system, provided
further, that, on an exception basis where necessary to
obtain the participation of a carrier that has an ownership
interest in a competing CRS, Priceline may offer such
carrier(s) the opportunity to file unpublished fares for
Priceline Tickets through a competing CRS.
7.6 If Delta provides Priceline with access to Delta's
unpublished fares through WORLDSPAN, Priceline shall work
with Delta to reach a satisfactory arrangement with respect
to the exclusion of Priceline reservation and booking data on
Delta from WORLDSPAN's B-IDT/MIDT data compilations.
7.7 [**]
7.8 Priceline shall not advertise prices or fares in any O&D
below Delta's published fares in the applicable O&D.
7.9 In the event that Priceline is unable to fulfill a Priceline
ticket request from unpublished fares and seat inventory
provided from Participating Carriers, and Priceline decides
to purchase an airline ticket using a published fare, then
Priceline shall purchase the published fare from
Participating Carriers based on a formula which allocates
such purchases in proportion to the aggregate domestic or
international market share (as applicable) offered by each
Participating Carrier in the O&D requested; provided, that
the Participating Carrier has seats available for sale at
published fares comparable to the published fares available
from other Participating Carriers in such O&D.
7.10 At the request of Delta, Priceline will incorporate into the
Priceline Service a "hot link" to the designated Internet
site of Delta; PROVIDED, HOWEVER, that Priceline will have a
reasonable period of time following any such request to
accomplish any system changes, additions or enhancements
necessary or appropriate for the inclusion of any such "hot
link."
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7.11 Participating Carriers will be given the first opportunity to
fill a customer ticket request based on a formula [**]. If a
Participating Carrier fails to respond to a ticket request on
its designated first look, then Priceline will allocate the
request through a second round of preferred looks [**] for
each O&D requested (but excluding the Participating Carrier
that failed to fulfill the ticket request on the first look).
7.12 REVENUE SHARING. If Priceline's total margin (defined as
Priceline Ticket sales on Delta net of payments to Delta and
applicable credit card merchant fees) on aggregate ticket
sales of Delta exceeds 12% (the "EXCESS REVENUE"), for any
calendar quarter during the term of the PCA, Priceline will
pay Delta a percentage of such Excess Revenue based on the
following formula:
<TABLE>
<CAPTION>
If Revenue for the Priceline will pay as a Commission
Quarter is greater than: the following percentage:
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$[**] million [**]%
$[**] million [**]%
$[**] million [**]%
$[**] million [**]%
$[**] million or greater [**]%
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Within 15 days after the close of each such calendar quarter,
Priceline will remit to Delta the amount payable to Delta
under this Section 7.12, which amount shall be accompanied by
Priceline's calculation of Excess Revenue for the period in
question.
7.13 Priceline will provide Delta with a daily electronic report
in a format designated by Delta, summarizing, information
concerning Priceline customer offers that were not fulfilled
by Delta, including (i) O&D requested, (ii) offer price and
(iii) number of offers at each offer price; such reports to
begin within 30 days following the initiation of the Test
Period.
8. INDEMNIFICATION
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8.1 For purposes of this Section 8, "LOSSES" shall mean any and
all costs, demands, losses, claims (including any claim by a
third party), liabilities, fines, penalties, assessments,
damages, including, without limitation, interest, penalties,
reasonable attorneys' fees and expenses and all amounts paid
in proceedings, claims, complaints, disputes, arbitrations,
investigations, defense or settlement of any of the
foregoing.
8.2 Except as otherwise provided in this Article 8, Delta agrees
to indemnify, defend and hold harmless Priceline and its
affiliates and their respective officers, directors, agents,
employees and subsidiaries (each, a "PRICELINE INDEMNIFIED
PARTY ") to the fullest extent permitted by law from and
against any and all Losses resulting from, arising out of or
relating to any breach of any representation, warranty,
covenant or agreement by Delta in the Transaction Documents;
PROVIDED, that Delta shall not be liable under this Section
8.2 to any Priceline Indemnified Party to the extent that it
is finally judicially determined that such Losses resulted
primarily from the material breach by any Priceline
Indemnified Party of any representation, warranty, covenant
or agreement of such Priceline Indemnified Party contained in
the Transaction Documents, and PROVIDED, FURTHER, that if and
to the extent that such indemnification is unenforceable for
any reason, Delta shall make the maximum contribution to the
payment and satisfaction of such Losses which shall be
permissible under applicable laws.
8.3 Except as otherwise provided in this Article 8, Priceline
agrees to indemnify, defend and hold harmless Delta and its
affiliates and their respective officers, directors, agents,
employees, and subsidiaries (each, a "DELTA INDEMNIFIED
PARTY") to the fullest extent permitted by law from and
against any and all Losses resulting from, arising out of or
relating to any breach of any representation or warranty,
covenant or agreement by Priceline in the Transaction
Documents, including, without limitation, any legal,
administrative or other actions (including actions brought
by Delta or Priceline or any equity holders of Priceline or
derivative actions brought by any person claiming through or
in Priceline's name), proceedings or investigations (whether
formal or informal), or written threats thereof, based upon,
relating to or arising out of the Transaction Documents, the
transactions contemplated
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hereby and thereby, or any Delta Indemnified Party's role
therein or in transactions contemplated thereby; PROVIDED,
that Priceline shall not be liable under this Section 8.3 to
any Delta Indemnified Party to the extent that it is finally
judicially determined that such Losses resulted primarily
from the material breach by any Delta Indemnified Party of
any representation, warranty, covenant or agreement of an
Delta Indemnified Party contained in the Transaction
Documents; and PROVIDED, FURTHER, that if and to the extent
that such indemnification is unenforceable for any reason,
Priceline shall make the maximum contribution to the payment
and satisfaction of such Losses which shall be permissible
under applicable laws.
8.4 Each Priceline Indemnified Party or Delta Indemnified Party,
as the case may be (for purposes of this Section 8.4, an
"INDEMNIFIED PARTY"), under this Section 8 shall, promptly
after the receipt of notice of the commencement of any
action, investigation, claim or other proceeding against such
Indemnified Party in respect of which indemnity may be sought
from Delta or Priceline (for purposes of this Section 8.4, an
"INDEMNIFYING PARTY") under this Section 8, notify the
Indemnifying Party in writing of the commencement thereof.
The omission of any Indemnified Party so to notify the
Indemnifying Party of any such action shall not relieve the
Indemnifying Party from any liability which it may have to
such Indemnified Party unless, and only to the extent that,
such Indemnifying Party has been prejudiced thereby. In case
any such action, claim or other proceeding shall be brought
against any Indemnified Party, and it shall notify the
Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to assume the defense
thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; PROVIDED,
HOWEVER, that any Indemnified Party may, at its own expense,
retain separate counsel to participate in such defense at its
own expense. Notwithstanding the foregoing, in any action,
claim or proceeding in which both the Indemnifying Party, on
the one hand, and an Indemnified Party, on the other hand,
are, or are reasonably likely to become, a party, such
Indemnified Party shall have the right to employ separate
counsel at the expense of the Indemnifying Party and to
control its own defense of such action, claim or proceeding
if, in the reasonable opinion of counsel to such Indemnified
Party, a
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conflict or potential conflict exists between the
Indemnifying Party, on the one hand, and such Indemnified
Party, on the other hand, that would make such separate
representation advisable; PROVIDED, HOWEVER, that the
Indemnifying Party shall not be liable for the fees and
expenses of more than one counsel to all Indemnified Parties.
The Indemnifying Party agrees that it will not, without the
prior written consent of the Indemnified Party, settle,
compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to
the matters contemplated hereby (if any Indemnified Party is
a party thereto or has been actually threatened to be made a
party thereto) unless such settlement, compromise or consent
includes an unconditional release of the Indemnified Party
from all liability arising or that may arise out of such
claim, action or proceeding. The Indemnifying Party shall not
be liable for any settlement of any claim, action or
proceeding effected against an Indemnified Party without the
Indemnifying Party's written consent, which consent shall not
be unreasonably withheld.
9. REGISTRATION RIGHTS AGREEMENT
Within thirty (30) days of the date hereof, Delta and Priceline shall
enter into a Registration Rights Agreement in the form of the
Registration Rights Agreement dated as of July 31, 1998, executed among
Priceline Inc., General Atlantic Partners 48 L.P., GAP Coinvestment
Partners, L.P. and certain stockholders named therein.
10. GENERAL PROVISIONS
10.1 No waiver or breach of any of the provisions of this
Agreement shall be construed as a waiver of any succeeding
breach of the same or any other provision.
10.2 If any paragraph, sentence or clause of this Agreement shall
be adjudged illegal, invalid or unenforceable, such
illegality, invalidity or unenforceability shall not affect
the legality, validity or enforceability of this Agreement as
a whole or of any paragraph, sentence or clause hereof not so
adjudged.
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10.3 Any notice required or permitted hereunder shall be deemed
sufficient if given in writing and delivered personally, by
facsimile transmission, by reputable overnight courier
service or United States mail, postage prepaid, to the
addresses shown below or to such other addresses as are
specified by similar notice, and shall be deemed received
upon personal delivery, upon confirmed facsimile receipt, two
(2) days following deposit with such courier service, or
three (3) days from deposit in the United States mails, in
each case as herein provided:
<TABLE>
<S> <C>
If to PriceLine Tr If to Delta:
Pricellne Inc.:
Priceline.com Inco Delta Air Lines, Inc.
Five High Ridge Pa 1030 Delta Boulevard
Stamford, CT 06905 Hartsfield Atlanta International Airport
Atlanta, GA 30320
Attention: Chief Financial Officer Attention: VP-Reservations Sales
& Distribution Planning
Phone: 203-705-302 Phone.- 404-715-4079
Fax: 203-595-8344 Fax: 404-715-2277
WITH A COPY TO: WITH A COPY TO:
Priceline.com Incorporated Delta Air Lines, Inc.
Five High Ridge Park 1030 Delta Boulevard
Stamford, CT 06905 Hartsfield Atlanta International Airport
Atlanta, GA 30320
Attention: General Counsel Attention: General Counsel
Phone: 404-715-2387
Fax: 404-773-1657
</TABLE>
A party may change its address and the name of its designated
recipient of copies of notices for purposes of this
Agreement by giving the other parties written notice of the
new name and the address, phone and facsimile number of its
designated recipient in accordance with this Paragraph XI(3).
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10.4 This Agreement and the Attachments hereto supersede and
replace all previous understandings or agreements, whether
oral or written, with respect to the subject matter hereof.
The captions in this Agreement are for convenience only and
do not alter any terms of this Agreement.
10.5 This Agreement may be amended or modified only by a written
amendment executed by the parties.
10.6 The formation, construction, performance and validity of this
Agreement shall be governed by the internal laws of the
State of New York. Each party agrees that any civil suit or
action brought against it as a result of any of its
obligations under this Agreement may be brought against it
either in the state or federal courts of the principal place
of business of either party, and each party hereby
irrevocably submits to the jurisdiction of such courts and
irrevocably waives, to the fullest extent permitted by law,
any objections that it may now or hereafter have to the
laying of the venue of such civil suit or action and any
claim that such civil suit or action has been brought in an
inconvenient forum, and each party further agrees that final
judgment in any such civil suit or action shall be conclusive
and binding upon it and shall be enforceable against it by
suit upon such judgment in any court of competent
jurisdiction.
10.7 This Agreement may be executed in counterparts, each of which
shall be deemed an original, and together, shall constitute
one and the same instrument. Execution may be effected by
delivery of facsimiles of signature pages (and the parties
shall follow such delivery by prompt delivery of originals of
such pages).
10.8 No party will in any manner or by any device, either directly
or indirectly, act in violation of any applicable law,
governmental order or regulation. Priceline Travel shall
comply at all times with the provisions of Delta's tariffs
(except where such tariffs are specifically amended by Delta
under the terms of this Agreement) and the terms of the
Airlines Reporting Corporation ("ARC") Agent Reporting
Agreement and any addenda thereto.
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10.9 Priceline agrees to notify Delta promptly, in writing, in the
event there is a change of control in the ownership of
PriceLine Inc. For purposes of this Agreement, a "change of
control" with respect to a party means (i) the acquisition by
any other person or group (within the meaning of Section
13(d)(3) of the Securities Exchange Act (except an employee
group of such party, any of its subsidiaries or a holding
company of such party)), of the beneficial ownership of
securities representing 20% or more of the combined voting
power of the securities entitled to vote generally in the
election of the board of directors of such party, or (ii) the
sale, mortgage, lease or other transfer of assets or earning
power constituting more than 50% of the assets or earning
power of such party (other than ordinary course financing);
provided that in no event shall a "change of control be
defined to include (i) an initial public offering of shares
of a party's capital stock, (ii) the formation by a party of
a holding company, or (iii) an intra-corporate transaction
with a company under common control with a party.
10.11 No party hereto shall assign or transfer or permit the
assignment or transfer of this Agreement without the prior
written consent of the other parties.
10.12 This Agreement shall not be deemed to create any partnership
or joint venture between Delta and Priceline, nor to create
any rights in favor of any person or entity other than the
parties hereto. This Agreement is for the sole benefit of the
parties and nothing herein expressed or implied shall give or
be construed to give any other person any legal or equitable
rights hereunder.
10.13 NO PARTY WILL BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS, OR LOST
PROSPECTIVE ECONOMIC ADVANTAGE, ARISING FROM THIS AGREEMENT
OR ANY BREACH HEREOF.
10.14 THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE
EVENT ANY PROVISION OF THIS AGREEMENT IS NOT PERFORMED IN
ACCORDANCE WITH THE TERMS HEREOF AND THAT THE PARTIES SHALL
BE
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ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT
BREACHES OF THIS AGREEMENT AND TO ENFORCE
SPECIFICALLY THE TERMS AND PROVISIONS OF THIS
AGREEMENT.
10.15 Each party has participated jointly in the negotiation and
drafting of this Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties, and
no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
10.16 In the event that either party hereto is prevented from
fulfilling any of its obligations under this Agreement for a
period not exceeding one hundred twenty (120) consecutive
days for a reason beyond its control, including, but not
limited to, strikes, lockouts, work stoppages or other labor
disputes, riots, civil commotions, acts of God, fire, flood
and other weather-related reasons, governmental action or
directive (a "FORCE MAJEUR EVENT"), such party shall not, by
reason of being so prevented, be in breach of this Agreement
and such condition shall not be cause of termination by the
other party. If a Force Majeur Event continues for a period
in excess of one hundred twenty (120) consecutive days as to
one party which prevents that party from fulfilling in any
material way its obligations under this Agreement to the
other party, the other party shall have the right to
terminate this Agreement upon thirty (30) days' advance
written notice to the other party.
[Signatures on next page]
[**] = Confidential treatment requested for redacted portion.
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<PAGE>
[Signatures to the General Agreement dated August 31, 1998]
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement on
the date indicated above.
PRICELINE TRAVEL, INC. DELTA AIR LINES, INC.
/s/ Tim Brier /s/ Frederick W. Reid
-------------------------- ----------------------
By: Tim Brier By: Frederick W. Reid
Title: President Tittle: Executive Vice President and
Chief Marketing Officer
PRICELINE.COM INCORPORATED
/s/ Tim Brier
--------------------------
By: Tim Brier
Title: Executive Vice President
[**] = Confidential treatment requested for redacted portion.
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<PAGE>
SCHEDULE 3.1
AIRLINES WHICH HAVE SIGNED AN AGREEMENT TO PARTICIPATE IN THE
PRICELINE SERVICE AS OF THE DATE OF THE GENERAL AGREEMENT
DOMESTIC CARRIERS
1. America West
2. Trans World Airlines
INTERNATIONAL CARRIERS
1. Aer Lingus
2. Air France
3. Air New Zealand
4. Cathay Pacific Airways
5. Iberia
6. Iceland Air
7. Lufthansa
8. Malaysia Airlines
9. SAS
10. Singapore Airlines
11. South African Air (final discussions)
12. Varig
13. Virgin Atlantic
[**] = Confidential treatment requested for redacted portion.
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