Worldspan Subscriber Entity Agreement [Amendment No. 2] - Worldspan LP and priceline.com Inc.
SECOND AMENDMENT
TO THE
WORLDSPAN SUBSCRIBER ENTITY AGREEMENT
THIS SECOND AMENDMENT (this "Amendment"), dated as of April 1, 2003 (the "Second
Amendment Effective Date"), to the Subscriber Entity Agreement (as defined
below) is by and between Worldspan, L.P. ("Worldspan"), a Delaware limited
partnership with principal place of business located at 300 Galleria Parkway,
N.W., Atlanta, Georgia 30339, for itself and its subsidiaries, and priceline.com
Incorporated ("Priceline"), a Delaware corporation with principal place of
business located at 800 Connecticut Avenue, Norwalk, Connecticut 06854, for
itself, its Affiliates, and the Priceline Group.
WHEREAS, Worldspan and Priceline entered into the Worldspan Subscriber Entity
Agreement dated the 1st of October, 2001 (the "Subscriber Entity Agreement")
with an effective date of October 1, 2001.
WHEREAS, Worldspan and Priceline entered into an Amendment dated the 1st of
October, 2001 (the "First Amendment") to the Subscriber Entity Agreement.
WHEREAS, Worldspan and Priceline now desire to supersede and replace the First
Amendment and to further amend the Subscriber Entity Agreement as described in
this Amendment.
NOW, THEREFORE, Worldspan and Priceline (each, a "Party" and collectively, the
"Parties") agree as follows:
1. FIRST AMENDMENT SUPERSEDED. Effective as of the Second Amendment Effective
Date, this Amendment replaces and supersedes the First Amendment, and the
provisions of this Amendment, rather than the First Amendment, shall be
applicable with respect to events and periods of time occurring on or after
the Second Amendment Effective Date.
2. TERM. The first sentence of Article I of the Subscriber Entity Agreement is
hereby deleted in its entirety and replaced with the following:
"The term of this Agreement (the "Term") commences on April 1, 2003
and shall continue until [**] or such earlier date upon which this
Agreement may be terminated in accordance with the provisions of this
Agreement, as amended."
3. DEFINITIONS. Each term defined in the Subscriber Entity Agreement shall
have the same meaning in this Amendment, except to the extent otherwise
provided herein or inconsistent with the provisions hereof. In addition to
the terms set forth below, various terms are defined in the context in
which they are used in this Amendment and shall have the respective
meanings there specified. For purposes of this Amendment, each of the
following terms shall have the applicable meaning specified below:
(a) "Affiliates" shall mean [**].
(b) "Airline Booking" shall mean an airline passenger Booking generated by
the Priceline Group.
(c) "Booking" shall mean a Segment properly generated by the Priceline
Group through the Worldspan GDS for which Worldspan charges and
collects a fee, except to the extent otherwise specified in Paragraph
41 of this Amendment. For purposes of the Subscriber Entity Agreement,
the term "Booking" shall have the same meaning as specified in the
preceding sentence.
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
<Page>
(d) "Booking Evaluation Period" shall mean each of the time periods
specified below:
<Table>
<Caption>
BOOKING EVALUATION PERIOD TIME PERIOD
------------------------------------------------------------------------------------------
<S> <C>
1 [**]
------------------------------------------------------------------------------------------
2 [**]
------------------------------------------------------------------------------------------
3 [**]
------------------------------------------------------------------------------------------
4 [**]
------------------------------------------------------------------------------------------
5 [**]
==========================================================================================
</Table>
(e) "Direct Connection" shall mean a computer system that provides
information about the schedules, fares, rates, and availability of the
products and services of, and allows the making of reservations and
the issuance of tickets for, the products and services of a particular
travel supplier, whether operated by the travel supplier, its
designee, or any other company that operates such a system, including,
without limitation, Sabre, Galileo, Amadeus, ITA, Abacus, Infini,
Axxess, Orbitz, Travelocity, or any affiliate of any of the foregoing.
(f) "ePricing" or "Power Shopper" shall mean a fares-and-pricing
productivity tool that provides Priceline the ability to retrieve
low-fare itinerary alternatives and confirm flights with a single
command.
(g) "Opaque" shall mean an Internet-based commerce system or process for
buying travel-related products or services (including, without
limitation, airline tickets, hotel rooms, rental cars and vacation
packages) that requires, as a condition of purchase, a non-refundable
payment, guaranteed by a credit card, debit card or other payment
process of the purchaser, prior to the determination of a material
term of the transaction, such as the time of the service, the identity
of the vendor of the product or service, or the specific manner of
performing the service.
(h) "Opaque Airline Booking" shall mean an Airline Booking generated by
the Priceline Group through an Opaque system or process.
(i) "Opaque Airline Segments" shall mean airline passenger Segments
generated by the Priceline Group through an Opaque system or process.
(j) "Opaque Booking" shall mean a Booking generated by the Priceline Group
through an Opaque system or process.
(k) "Opaque Hotel Booking" shall mean a hotel room Booking generated by
the Priceline Group through an Opaque system or process.
(l) "Opaque Hotel Segments" shall mean hotel room Segments generated by
the Priceline Group through an Opaque system or process.
(m) "Opaque Rental Car Booking" shall mean a rental car Booking generated
by the Priceline Group through an Opaque system or process.
(n) "Opaque Rental Car Segments" shall mean rental car Segments generated
by the Priceline Group through an Opaque system or process.
(o) "Other GDS" shall mean a global distribution system operated by an
entity other than Worldspan.
(p) "Priceline Group" shall mean Priceline, any entities controlled by
Priceline as of the Second Amendment Effective Date, and any corporate
form and entity or asset that (i) becomes controlled by Priceline
after the Second Amendment Effective Date and (ii) did not have a
relationship with any Other GDS or Direct Connection over the entire
four (4) month period prior to the time it
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 2
<Page>
becomes controlled by Priceline. For purposes of this definition, an
entity is "controlled by" Priceline if Priceline is the "beneficial
owner" (as defined in Rule 13d(3) of the Securities and Exchange Act
of 1934), directly or indirectly, through one or more intermediaries,
of more than 50% of the voting power of such entity. Priceline shall
act for and on behalf of the Priceline Group and all entities within
the Priceline Group for all purposes relating to the Subscriber Entity
Agreement, including any approval, acceptance, consent, notice, or
other action required or permitted by the Subscriber Entity Agreement,
and shall be responsible for the performance of all obligations of the
Priceline Group hereunder and for causing each entity within the
Priceline Group to comply with all applicable provisions of the
Subscriber Entity Agreement. Notwithstanding anything herein to the
contrary, (x) Lowestfare.com Incorporated shall not be deemed to be
part of the Priceline Group until after the Lowestfare Basic
Conversion Completion Date (as defined herein), but no later than
December 31, 2003, and (y) neither Hutchison-Priceline Limited nor
priceline.com europe Ltd. shall be deemed to be part of the Priceline
Group; PROVIDED, HOWEVER, that any Segments generated by
Hutchison-Priceline Limited or priceline.com europe Ltd. through the
www.priceline.com website, the www.lowestfare.com website, or any
successor to either of those websites, shall be deemed to be Segments
generated by the Priceline Group and not Segments generated by the EU
Affiliates.
(q) "Retail" shall mean a system or process for buying travel-related
products or services (including, without limitation, airline tickets,
hotel rooms, rental cars and vacation packages) that is not Opaque.
(r) "Retail Airline Booking" shall mean an Airline Booking generated by
the Priceline Group through a Retail system or process.
(s) "Retail Airline Segments" shall mean airline passenger Segments
generated by the Priceline Group through a Retail system or process.
(t) "Retail Booking" shall mean a Booking generated by the Priceline Group
through a Retail system or process.
(u) "Retail Hotel Segments" shall mean hotel room Segments generated by
the Priceline Group through a Retail system or process. However,
notwithstanding anything in this Amendment to the contrary,
reservations for hotel rooms generated through Travelweb by means of a
Retail system or process, irrespective of the entity or URL from which
such reservations are generated, shall not be considered "Segments" or
"Retail Hotel Segments" for purposes of this Amendment and shall be
excluded from all terms of the Subscriber Entity Agreement, including
this Amendment.
(v) "Retail Rental Car Booking" shall mean a rental car Booking generated
by the Priceline Group through a Retail system or process.
(w) "Retail Rental Car Segments" shall mean rental car Segments generated
by the Priceline Group through a Retail system or process.
(x) "Segments" shall mean (i) reservations for airline passenger flights,
less cancellations prior to the date of departure, and (ii)
reservations for other travel-related products and services, such as
hotel rooms, rental cars, tours, and cruises, that are not canceled.
For example, except to the extent affected by cancellations, a
reservation for one passenger on a direct flight constitutes one
Segment, a reservation for one passenger on a round-trip consisting of
two direct flights constitutes two Segments, a reservation for one
passenger on a two-segment connecting flight constitutes two Segments,
a reservation for two passengers on a direct flight constitutes two
Segments, even if the reservations for both passengers are within the
same passenger name record ("PNR"), and a reservation for a hotel room
or rental car for a continuous period of multiple days (e.g., one
hotel client for five continuous nights or one car client for five
continuous days) constitutes one Segment.
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 3
<Page>
(y) "Worldspan System" shall mean the computerized systems, including
hardware, software, data and connectivity, used by Worldspan to
operate the Worldspan GDS or to otherwise provide services for the
Priceline Group.
(z) "Yield" shall mean, for any type of Booking and any period of time,
the amount determined by dividing (i) the total amount of booking fees
paid to Worldspan by travel suppliers in connection with Bookings of
that type generated by the Priceline Group during that period of time,
by (ii) the number of Bookings of that type generated by the Priceline
Group during that period of time.
4. DETERMINATION OF SEGMENTS. The number of Segments booked by the Priceline
Group shall be determined as follows:
(a) The determination of the number of Segments booked by the Priceline
Group through the Worldspan GDS shall be made solely by Worldspan from
its books and records.
(b) The determination of the number of Segments booked by the Priceline
Group through an Other GDS shall be made by Worldspan using
industry-standard MIDT data or other industry-standard data of
comparable reliability.
(c) The determination of the number of Segments booked by the Priceline
Group through a Direct Connection or any other means shall be made by
Priceline and reported in a manner generally accepted by the travel
industry.
Promptly following the end of each calendar month during the Term, each
Party shall make available to the other Party the documentation or records
reasonably requested by the other Party to document and verify the number
of Segments booked with respect to that month. If either Party has any
questions regarding the information provided by the other Party, the first
Party will promptly notify the other Party thereof and the Parties will
work together in good faith to resolve the questions and agree upon the
number of Segments booked with respect to that month.
All determinations of the number of Segments booked shall be subject to the
audit rights specified in the following Paragraph.
5. AUDIT OF SEGMENT BOOKING DETERMINATIONS. Either Party may, upon reasonable
prior written notice to the other Party and no more than four (4) times per
Booking Evaluation Period, request a meeting for the purpose of documenting
and verifying the number of Segments booked by the Priceline Group. Each
Party shall be solely responsible for its costs incurred with respect to
such meetings. Each Party shall make available to the other Party the
documentation or records reasonably requested by the other Party to
document and verify the number of Segments booked by the Priceline Group.
In the event of any material disagreement on the number of Segments booked,
either Party shall have the right to engage an independent third party (the
"Auditor") acceptable to both Parties to audit the books and records used
in determining the number of Segments booked. In the event that the Auditor
discovers a discrepancy of 10% or more in either Party's reporting of the
number of Segments booked, then that Party alone shall bear the cost of
such Auditor, and if the Auditor fails to discover such a discrepancy of
10% or more, then the Party engaging the Auditor alone shall bear the cost
of such Auditor. Any remaining material disagreement as to the number of
Segments booked by the Priceline Group shall be resolved through the
dispute resolution mechanism applicable to the Subscriber Entity Agreement.
6. BOOKING OBLIGATIONS. The Priceline Group shall have the following booking
obligations:
(a) The Priceline Group shall, for each Booking Evaluation Period,
generate through the Worldspan GDS a minimum of [**] of the total
Opaque Airline Segments and Opaque Rental Car Segments booked by the
Priceline Group (through the Worldspan GDS, any Other GDS, any Direct
Connection, and any other means) in the United States of America and
Canada ("USA/Canada").
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 4
<Page>
(b) The Priceline Group shall, for each Booking Evaluation Period,
generate through the Worldspan GDS a minimum of [**] of the total
Retail Airline Segments and Retail Rental Car Segments booked by the
Priceline Group (through the Worldspan GDS, any Other GDS, any Direct
Connection, and any other means) in USA/Canada.
(c) The Priceline Group shall:
(1) For each Booking Evaluation Period, generate through the
Worldspan GDS a minimum of [**] of the total Opaque Hotel
Segments booked by the Priceline Group (through Worldspan, any
Other GDS, any Direct Connection, and any other means) in
USA/Canada; and
(2) [**].
(d) The Priceline Group shall not be required to generate any Retail Hotel
Segments through the Worldspan GDS.
(e) The Priceline Group shall convert the www.lowestfare.com website
(including any successor thereto) so that:
(1) Commencing no later than [**] and until a minimum of 365 days
after the date the Parties mutually confirm that such conversion
with respect to Basic [**] Segments is complete (the "Lowestfare
Basic Conversion Completion Date"), the www.lowestfare.com
website shall not generate through [**] any [**] Segments other
than Other [**] Segments ("Basic [**] Segments"); and
(2) Commencing no later than [**] and until a minimum of 365 days
after the Lowestfare Basic Conversion Completion Date, the
www.lowestfare.com website shall not generate through [**] any of
the following types of [**] Segments ("Other [**] Segments"):
(1) [**];
(2) [**]; and
(3) [**].
Failure by the Priceline Group to comply with this Section 6(e) shall
not be deemed a breach of this Agreement.
7. INDUCEMENT REDUCTION UPON FAILURE TO MEET BOOKING OBLIGATION.
Notwithstanding the provisions regarding [**] Booking Inducements and [**]
Booking Inducements set forth in Paragraphs 11 and 12 below, respectively,
if the Priceline Group fails to comply with any of its obligations under
Paragraph 6 above for any Booking Evaluation Period, then:
(a) The [**] Booking Inducements for [**] Bookings in [**] shall be
reduced to [**] per [**] Booking generated during the Booking
Evaluation Period for which the Priceline Group failed to comply with
such obligation;
(b) The [**] Booking Inducements for [**] Bookings in [**] shall be
reduced to [**] per [**] Booking generated during the Booking
Evaluation Period for which the Priceline Group failed to comply with
such obligation; and
(c) The [**] Booking Inducement for [**] Bookings in [**] shall not be
modified.
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 5
<Page>
No later than thirty (30) days following the end of any Booking Evaluation
Period in which the Priceline Group fails to comply with any of its
obligations under Paragraph 6 above, Worldspan shall conduct a
reconciliation of the inducement payments made to Priceline for the portion
of that Booking Evaluation Period prior to the last calendar quarter
thereof, the inducement payments owed to Priceline for the final calendar
quarter of the Booking Evaluation Period, and the amount by which the total
of the inducement payments already made to Priceline for that Booking
Evaluation Period is greater or less than the total of the inducement
payments actually owed to Priceline for that Booking Evaluation Period,
after taking into account the inducement reductions described in this
Paragraph. No later than fifteen (15) days after the completion of such
reconciliation, Worldspan shall notify Priceline of the payment due to or
from Priceline. The applicable Party shall make such payment no later than
thirty (30) days following the giving of such notice to Priceline. In
addition, the Party to whom the payment is owed shall be entitled to set
off the amount of such payment against any other amounts owed to the
applicable Party.
8. OTHER CONSEQUENCES OF FAILURE TO MEET BOOKING OBLIGATION. If the Priceline
Group fails to comply with any of its obligations under Paragraph 6 above
(other than subparagraph (e) thereof) in Booking Evaluation Period 1,2,3
or 4 then Worldspan may give the Priceline Group written notice that such
an event has occurred and that Worldspan is terminating the Subscriber
Entity Agreement, effective thirty (30) days from Priceline's receipt of
such notice.
Upon a termination pursuant to this Paragraph following Booking Evaluation
Period 1, 2, 3, or 4 or upon a breach of a booking obligation under
Paragraph 6 above (other than subparagraph (e) thereof) in Booking
Evaluation Period 5, the Priceline Group shall be liable to Worldspan for
liquidated damages calculated according to the formula set forth below:
Liquidated Damages = The lesser of (i) the number of Expected Bookings,
multiplied by [**], or (ii) the amount, if any, that
the number of actual Bookings generated by the
Priceline Group through the Worldspan GDS from the
Second Amendment Effective Date until the effective
termination date is less than ninety million
(90,000,000), multiplied by [**]. For purposes of this
Amendment, "Expected Bookings" shall mean (x) the
average number of Bookings made by the Priceline Group
through the Worldspan GDS per month in (A) the twelve
(12) months preceding the end of the applicable
Booking Evaluation Period, or (B) if Worldspan has
delivered a Compliance Notice to Priceline during the
applicable Booking Evaluation Period, the twelve (12)
months preceding the first day of the calendar month
to which the Compliance Notice applies, multiplied by
(y) thirty-six (36) months. A "Compliance Notice"
shall mean a notice deliverable by Worldspan to
Priceline in the event that over any full calendar
month of a Booking Evaluation Period, the percentage
of Segments generated by the Priceline Group in the
USA/Canada as calculated in accordance with Paragraph
6 (other than subparagraph 6(e) thereof), if continued
at the same rate during the remainder of the Booking
Evaluation Period, will result in the Priceline Group
failing to comply with an obligation under Paragraph 6
above (other than subparagraph (e) thereof) in that
Booking Evaluation Period.
The Parties acknowledge that the foregoing provision has been negotiated at
arms length between Worldspan and Priceline and represents a reasonable
measure of liquidated damages in the event of the Priceline Group's default
of the specified obligations.
9. AFFILIATE BOOKING OBJECTIVE. For each Booking Evaluation Period, Priceline
shall use good-faith efforts to cause the Affiliates, as a whole, to
generate through the Worldspan GDS a minimum of [**] of their aggregate
Segments globally. This obligation is subject to Worldspan's geographic and
vendor-specific connectivity capabilities. Priceline shall give Worldspan
the opportunity to develop new technological capabilities in order to serve
the Affiliates' international needs. Worldspan agrees that the failure of
Priceline to meet its obligations under this Paragraph shall not (i)
constitute a breach of the Subscriber Entity Agreement, (ii) constitute the
default of any obligation of the Subscriber Entity Agreement, or
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 6
<Page>
(iii) give rise to any cause of action or claim against, or liability on
the part of, Priceline for any losses or damages of any kind. The Parties
acknowledge that the foregoing provision has been negotiated at arms length
between Worldspan and Priceline and represents a reasonable compromise in
the event of Priceline's failure to complete the specified obligation.
10. AFFILIATE INTERNATIONAL NON-AIRLINE BOOKING OBJECTIVE. For each Booking
Evaluation Period, Priceline shall use good-faith efforts to cause the
Affiliates, as a whole, to generate through the Worldspan GDS [**] of their
non-airline Segments originating in countries other than USA/Canada. This
obligation is subject to Worldspan's geographic and vendor-specific
connectivity capabilities. Priceline shall give Worldspan the opportunity
to develop new technological capabilities in order to serve the Affiliates'
international needs. Worldspan agrees that the failure of Priceline to meet
its obligations under this Paragraph shall not (i) constitute a breach of
the Subscriber Entity Agreement, (ii) constitute the default of any
obligation of the Subscriber Entity Agreement, or (iii) give rise to any
cause of action or claim against, or liability on the part of, Priceline
for any losses or damages of any kind. The Parties acknowledge that the
foregoing provision has been negotiated at arms length between Worldspan
and Priceline and represents a reasonable compromise in the event of
Priceline's failure to complete the specified obligation.
11. OPAQUE BOOKING INDUCEMENTS. Worldspan shall pay the following [**] Booking
Inducements to Priceline for [**] Bookings generated by the Priceline Group
through the Worldspan GDS in [**]:
(a) The [**] Booking Inducement for [**] Bookings in [**] during each
Booking Evaluation Period shall be as follows:
<Table>
<Caption>
===================================================================
INDUCEMENT PER
BOOKING EVALUATION PERIOD [**] BOOKING
===================================================================
<S> <C>
1 [**]
-------------------------------------------------------------------
2 [**]
-------------------------------------------------------------------
3 [**]
-------------------------------------------------------------------
4 [**]
-------------------------------------------------------------------
5 [**]
===================================================================
</Table>
(b) The [**] Booking Inducement for [**] Bookings in [**] shall be [**]
per [**] Booking, subject to adjustment as described in Paragraph
17(d)(3) below.
(c) The [**] Booking Inducement for [**] Bookings in [**] shall be [**] of
the booking fee paid to Worldspan by the [**] supplier for the [**]
Booking, subject to the provisions of Paragraph 18 below.
Payment for each calendar quarter shall be made no later than forty-five
(45) days following the end of that calendar quarter, with any
reconciliation, if necessary, completed after the end of the applicable
Booking Evaluation Period.
12. [**] BOOKING INDUCEMENTS. Worldspan shall pay the following [**] Booking
Inducements to Priceline for [**] Bookings generated by the Priceline Group
through the Worldspan GDS in [**]:
(a) The [**] Booking Inducement for [**] Bookings in [**] shall be [**]
per [**] Booking, subject to adjustment as described in Paragraph
17(d)(4) below, but not less than a minimum of [**]. In addition,
Worldspan shall pay Priceline a one-time booking bonus of [**] per
[**] Booking in [**] for a period of [**] months from the Second
Amendment Effective Date.
(b) The [**] Booking Inducement for [**] Bookings in [**] shall be [**]
per [**] Booking, subject to adjustment as described in Paragraph
17(d)(5) below, but not less than a minimum of [**].
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 7
<Page>
Payment for each calendar quarter shall be made no later than forty-five
(45) days following the end of that calendar quarter, with any
reconciliation, if necessary, completed after the end of the applicable
Booking Evaluation Period.
13. RETAIL BOOKING TARGETS. The Retail Booking target amounts ("Retail Booking
Targets") for each calendar quarter during Booking Evaluation Periods
2,3,4 and 5 shall be as follows:
<Table>
<Caption>
===============================================
BOOKING EVALUATION PERIOD
-----------------------------------------------
2 3 4 5
============================================================
<S> <C> <C> <C> <C>
Q1 [**] [**] [**] [**]
------------------------------------------------------------
Q2 [**] [**] [**] [**]
------------------------------------------------------------
Q3 [**] [**] [**] [**]
------------------------------------------------------------
Q4 [**] [**] [**] [**]
============================================================
</Table>
Provided, however, that for purposes of the conceptual "Bank Account"
described in Paragraph 14 below, for any calendar quarter for which the
Priceline Group generated through the Worldspan GDS at least [**] of the
total number of Retail Airline Segments, Opaque Airline Segments, Retail
Rental Car Segments and Opaque Rental Car Segments, as a whole, generated
by the Priceline Group in USA/Canada, the Actual Retail Bookings (as
defined in Paragraph 14 below) for that quarter shall be deemed to be the
greater of (i) the number of Retail Bookings for that quarter, and (ii) the
Retail Booking Target for that quarter.
14. CONCEPTUAL "BANK ACCOUNT". Commencing with the first quarter of 2004, a
conceptual "Bank Account" shall be established in order to track cumulative
credits and debits that result from the number of Retail Bookings generated
by the Priceline Group for that quarter. The "Bank Account" shall have an
initial balance of zero.
(a) For purposes of this Paragraph, the "Shortfall Factor" shall be [**]
as of the Second Amendment Effective Date and may be adjusted from
time to time as described in Paragraph 17(d)(4) below, but shall not
be less than a minimum of [**].
(b) Promptly after the last day of each calendar quarter of Booking
Evaluation Periods 2, 3, 4 and 5, the number of Retail Bookings for
that calendar quarter (the "Actual Retail Bookings" for that quarter)
shall be determined as discussed in Paragraph 4 above. The "Bank
Account" balance shall be increased or decreased by the dollar amount
calculated by multiplying (i) the then-current Shortfall Factor, by
(ii) the amount (which may be positive or negative) determined by
subtracting (x) the Retail Booking Target for that quarter, from (y)
the Actual Retail Bookings for that quarter.
(c) Promptly after the last day of each calendar quarter of Booking
Evaluation Periods 2, 3, 4 and 5, the Parties shall make the
adjustment to the "Bank Account" balance discussed in subparagraph (b)
above and:
(1) If there is a net negative balance in the "Bank Account", then
Priceline shall pay Worldspan an amount equal to the absolute
value of such negative balance and the balance shall return to
zero.
(2) If there is a net positive balance in the "Bank Account", then no
payment is due by either Party and (i) if the quarter in question
is not the fourth quarter of [**], then the balance shall carry
forward into the following calendar quarter, and (ii) if the
quarter in question is the fourth quarter of [**], then the
balance shall expire and be of no further effect.
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 8
<Page>
15. [**] BOOKING INDUCEMENTS. Worldspan shall pay the following [**] Booking
Inducements to Priceline for Bookings generated by the Priceline Group
through the Worldspan GDS in [**]:
(a) The [**] Booking Inducement for [**] Bookings in [**] shall be [**]
per [**] Booking.
(b) The [**] Booking Inducement for [**] Bookings in [**] shall be [**]
per [**] Booking.
Payment for each calendar quarter shall be made no later than forty-five
(45) days following the end of that calendar quarter, with any
reconciliation, if necessary, completed after the end of the applicable
Booking Evaluation Period.
16. AFFILIATE BOOKING BONUS INCENTIVES. Provided that Priceline complies with
its obligations under Paragraph 6 of this Amendment, each of the following
bonus incentives will apply.
(a) In the event the Affiliates (as a whole) generate more than [**][**]
Bookings through the Worldspan GDS in any Booking Evaluation Period,
Worldspan shall pay Priceline an additional bonus of [**] no later
than forty-five (45) days following the end of the Booking Evaluation
Period.
(b) In the event the Affiliates (as a whole) generate more than [**][**]
Bookings through the Worldspan GDS in any Booking Evaluation Period,
Worldspan shall pay Priceline an additional bonus of [**] no later
than forty-five (45) days following the end of the Booking Evaluation
Period.
(c) In the event the Affiliates (as a whole) generate more than [**][**]
Bookings through the Worldspan GDS in any Booking Evaluation Period,
Worldspan shall pay Priceline an additional bonus of [**] no later
than forty-five (45) days following the end of the Booking Evaluation
Period.
(d) In the event the Affiliates (as a whole) generate more than [**][**]
Bookings through the Worldspan GDS in any Booking Evaluation Period,
Worldspan shall pay Priceline an additional bonus of [**] no later
than forty-five (45) days following the end of the Booking Evaluation
Period.
(e) In the event the Affiliates (as a whole) generate more than [**][**]
Bookings through the Worldspan GDS in any Booking Evaluation Period,
Worldspan shall pay Priceline an additional bonus of [**] no later
than forty-five (45) days following the end of the Booking Evaluation
Period.
(f) In the event the Affiliates (as a whole) generate more than [**][**]
Bookings through the Worldspan GDS in the time period from April 1,
2003 to [**], Worldspan shall pay Priceline an additional bonus of
[**] no later than February 15, 2008.
17. BOOKING FEES PAYABLE BY TRAVEL SUPPLIERS.
(a) The Parties acknowledge that the respective Yields resulting from the
following types of Bookings generated by the Priceline Group in [**]
for the first calendar quarter of calendar year 2003 were as follows:
(1) The Yield for [**] Bookings was [**].
(2) The Yield for [**] Bookings was [**].
(3) The Yield for [**] Bookings was [**].
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 9
<Page>
(4) The Yield for [**] Bookings was [**].
In order to reflect the impact of the increases implemented as of
April 1, 2003 in its booking fees for [**] Bookings, Worldspan shall
determine and notify Priceline of the Yield resulting from [**]
Bookings generated in [**] for the second calendar quarter of calendar
year 2003 as soon as feasible after the end of that quarter.
(b) Worldspan may adjust its booking fees to travel suppliers from time to
time in accordance with the following:
(1) Worldspan shall provide Priceline with notice of any such booking
fee adjustment as soon as practicable, but no later than ten (10)
business days after notice to the applicable travel suppliers.
(2) Worldspan shall not implement in the second calendar quarter of
calendar year 2003 any increases to its booking fees for [**]
Bookings other than the increases implemented as of April 1,
2003.
(3) In connection with [**] Bookings, Worldspan shall charge [**]
suppliers in the same manner (for example, at the same pricing
tier) during [**] as it did during [**].
(4) Except as provided in subparagraphs (2) and (3) above, there
shall be no restriction on the frequency of any such booking fee
adjustments.
(c) The Parties acknowledge that the inducements provided in this
Amendment are dependent on Worldspan's booking fee rates charged to
travel suppliers remaining at levels comparable to the rates charged
to travel suppliers as of the Second Amendment Effective Date. In the
event that (i) the average booking fee rate charged by Worldspan
should decrease by [**] or more compared to the rates charged [**]
suppliers as of the Second Amendment Effective Date due to causes
beyond the direct control of Worldspan or (ii) except as otherwise
provided by Paragraph 17(d)(6) below, Worldspan, Priceline, and a
travel supplier agree to implement a substantially modified pricing
structure with respect to that travel supplier, then the Parties agree
to negotiate in good faith to revise the Subscriber Entity Agreement
to conform with the new industry practice. In the event that such
negotiations do not result in a modification to the Subscriber Entity
Agreement, then Worldspan reserves the right (x) to eliminate the
inducements provided for in this Amendment with respect to such
Bookings, or (y) to immediately terminate the Subscriber Entity
Agreement in its entirety, notwithstanding any provision of the
Subscriber Entity Agreement to the contrary; provided, however, that
in the event that Worldspan eliminates any such inducements, Priceline
shall have the right to immediately terminate the Subscriber Entity
Agreement.
(d) If and when Worldspan adjusts its booking fees to travel suppliers for
Bookings in [**], then the following adjustments shall be
prospectively applied.
(1) [**]
(2) [**]
(3) [**]
(4) [**]
(5) [**]
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 10
<Page>
(6) [**]
18. MINIMUM WORLDSPAN HOTEL COMPENSATION. Notwithstanding the provisions of
Paragraph 11(c) above, for each Booking Evaluation Period, Worldspan shall
be entitled to at least a minimum amount equal to (i) the then-current
Worldspan [**] Minimum Rate described below, multiplied by (ii) the total
number of [**] Bookings in [**] for that Booking Evaluation Period.
Promptly after the end of each Booking Evaluation Period, Worldspan will
determine the total amount of booking fees for such [**] Bookings retained
by Worldspan for such Booking Evaluation Period and, if it is less than the
minimum amount described above, Priceline shall promptly pay the difference
to Worldspan.
The "Worldspan [**] Minimum Rate" shall be [**] as of the Second Amendment
Effective Date and may be reduced from time to time thereafter in
accordance with the provisions of this Paragraph. If Worldspan decreases
the standard published booking fee it charges a [**] supplier for [**]
segments generated in [**] by Worldspan subscribers other than the
Priceline Group (the "Non-Priceline Booking Fee" for that [**] supplier) so
that the Non-Priceline Booking Fee for that [**] supplier after the
decrease is less than the booking fee it charges the [**] supplier for [**]
Bookings generated in [**] by the Priceline Group (the "Priceline Booking
Fee" for that [**] supplier), then the then-current Worldspan [**] Minimum
Rate will be reduced by an amount equal to (i) the amount of such decrease
in the Non-Priceline Booking Fee for that [**] supplier, less the amount,
if any, by which (x) the Priceline Booking Fee for that [**] supplier prior
to the decrease, is less than (y) the Non-Priceline Booking Fee for that
[**] supplier prior to the decrease, multiplied by (ii) the percentage
obtained by dividing (x) the number of [**] Bookings in [**] for that [**]
supplier generated by the Priceline Group for the 12-month period preceding
the decrease, by (y) the total number of [**] Bookings generated in [**] by
the Priceline Group for that 12-month period.
19. HOTEL IMAGES. The Parties shall use commercially reasonable efforts to
obtain hotel images to be loaded into the Worldspan GDS.
20. EPRICING.
(a) The Priceline Group shall be entitled to [**] Power Shopper queries
for each Booking at [**]. If the number of Power Shopper queries from
the Priceline Group in any calendar month is more than [**] times the
number of Bookings for that month, then Priceline shall pay [**] for
each such excess Power Shopper query. Worldspan will provide to the
Priceline Group a "less edited" Power Shopper response, reasonably
acceptable to Priceline, that will allow as many as [**] to [**]
itinerary alternatives to be retrieved in response to each Power
Shopper query.
(b) Worldspan shall implement improvements to its ePricing functionality
in accordance with Attachment B to this Amendment.
(c) Worldspan shall devote appropriate time and resources and otherwise
use commercially reasonable efforts to cause its ePricing
functionality to be competitive in the performance of services
provided by Other GDSs (including, without limitation, [**]), in terms
of, for example, and not by way of limitation, cost, availability
services and scope of commands.
21. LOW COST CARRIER PARTICIPATION. Worldspan will provide the Priceline Group
with access to any low cost carrier (i.e., an air carrier that does not
participate in the Worldspan GDS and pay booking fees to Worldspan) upon
mutual agreement between Worldspan, Priceline, and the low cost carrier. In
such agreements, the implementation fee for Priceline will be [**], but the
low cost carrier may be subject to reasonable implementation,
participation, and other fees.
22. Lowestfare Conversion Bonus. Upon completion of the Priceline Group's
obligation to convert the www.lowestfare.com website so that it ceases
generating Basic [**] Segments through [**], by no later than [**],
pursuant to Paragraph 6(e)(1) above, Worldspan shall pay Priceline a
one-time conversion bonus equal to [**] per [**] Booking generated by
means of the www.lowestfare.com website
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 11
<Page>
during the period commencing upon the Lowestfare Basic Conversion
Completion Date and ending 365 days thereafter, all upon and subject to the
following:
(a) Promptly after the Lowestfare Basic Conversion Completion Date,
Worldspan shall pay Priceline a projected conversion bonus based upon
the estimated number of [**] Bookings that will be generated by means
of the www.lowestfare.com website during the 365 days following the
Lowestfare Basic Conversion Completion Date. Promptly after the end of
that 365 day period, the Parties will determine the actual number of
[**] Bookings generated by means of the www.lowestfare.com website
during that period and the actual conversion bonus resulting from
those [**] Bookings, and the applicable Party will pay to the other
Party any amounts necessary to reconcile the projected conversion
bonus previously paid to Priceline with the actual conversion bonus so
determined.
(b) Notwithstanding the foregoing, in the event that (i) the
www.lowestfare.com website has not completely ceased generating Basic
[**] Segments through [**], by [**], as provided in Paragraph
6(e)(1) above or generates one or more Basic [**] Segments through
[**], during the 365 day period following the Lowestfare Basic
Conversion Date, or (ii) the www.lowestfare.com website has
not completely ceased generating Other [**] Segments through [**], by
[**], as provided in Paragraph 6(e)(2) above or generates one or more
Other [**] Segments through [**], during the period beginning when
such conversion with respect to Other [**] Segments is complete and
ending 365 days following the Lowestfare Basic Conversion Date, then,
in any such event, the conversion bonus described above will not be
payable to Priceline and, if and to the extent already paid, will be
promptly refunded to Worldspan.
23. SYSTEM USAGE. The Priceline Group will use the Worldspan System, including
data provided through such system, solely for the purposes of making
legitimate Bookings through the Worldspan System, issuing travel documents
relating to such Bookings, performing related accounting and record-keeping
functions, conducting testing in accordance with the provisions of this
Agreement, utilizing historical data in the ordinary course of the
Priceline Group's business, and in accordance with rules and regulations
established by travel suppliers and published by Worldspan. The Priceline
Group specifically agrees that it shall not use the Worldspan System,
including data provided through such system, to make bookings via any means
other than the Worldspan System or to develop any of the following types of
services for the purpose of reselling such services to third parties:
software applications, including without limitation booking engines,
corporate booking programs, fare and pricing tools, caching products, and
hosting applications. For the avoidance of doubt, the Priceline Group shall
not be prohibited from using the Worldspan System, including data provided
through such system, in the process of servicing a customer even in the
case where the Priceline Group searches an itinerary in the Worldspan
System and subsequently books such itinerary through a Direct Connection
with a supplier, provided that the Priceline Group did not, as part of the
servicing of such customer, search the inventory of such supplier in the
Worldspan System.
24. MARKETING INCENTIVE PROGRAM. The letter agreement dated November 13, 2001,
regarding the Marketing Incentive Program is hereby terminated.
25. HOTEL DIRECT CONNECTION. If the Priceline Group intends to enter a Direct
Connection relationship with one of its top ten hotel suppliers, then the
Priceline Group will evaluate the cost and functionality of an outsourced
Worldspan Direct Connection solution. If the cost and functionality of such
a Worldspan solution compares favorably to the cost and functionality of
the other Direct Connection relationship contemplated by the Priceline
Group, then the Priceline Group will use commercially reasonable efforts to
employ the outsourced Worldspan Direct Connection solution instead of the
other Direct Connection relationship. The foregoing shall not be
interpreted to limit in any way the ability of Priceline to generate Opaque
Hotel Segments on an Other GDS in accordance with this Agreement.
26. TECHNOLOGY SERVICES AGREEMENT. At Priceline's request, based on its need to
approximate Direct Connection economics for its major airline partners,
Worldspan shall use commercially reasonable efforts to negotiate an
agreement structured as a technology services agreement for the Priceline
Group, which
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 12
<Page>
shall contain terms and conditions that are competitive with other
technology services agreements that Worldspan has with its other major
customers that have booking volumes and technology requirements similar to
those of the Priceline Group.
27. RIGHT OF FIRST REFUSAL. Prior to entering into any arrangement with a third
party to obtain any GDS or other travel technology related services that
succeeds the Subscriber Entity Agreement or replaces any portion thereof
during Booking Evaluation Period 5 or at the end of the Term, Priceline
will provide Worldspan written notice of the proposed arrangement (an "ROFR
Notice"). It is understood, however, that no ROFR Notice shall be required
in connection with arrangements with any third party for such services if
and to the extent that Priceline is permitted (or, if the Subscriber Entity
Agreement were still in effect, would be permitted) to engage or contract
with such third party for such services under the terms of the Subscriber
Entity Agreement, such as any arrangement with a third party for the
generation through an Other GDS of any Segments that Priceline is not
obligated to generate through the Worldspan GDS pursuant to this Amendment.
Each ROFR Notice shall include as an attachment the proposed definitive
agreement pursuant to which the third party will provide the applicable
services or, if such definitive agreement has not been prepared, a detailed
description of the applicable services and all material terms and
conditions upon which the third party will provide them; provided, however,
that Priceline shall not be required to divulge to Worldspan the identity
of such third party. Following receipt of an ROFR Notice that satisfies the
foregoing requirements, Worldspan will have forty-five (45) days to (i)
notify Priceline that Worldspan elects to provide substantially similar
material services on material terms and conditions that are substantially
similar to, but no less favorable to Priceline than, those described in
such ROFR Notice, and (ii) provide to Priceline a proposed signed
definitive agreement for such substantially similar material services on
such substantially similar, but no less favorable to Priceline, material
terms and conditions. In the event Worldspan elects not to provide
Priceline with such services, it shall so notify Priceline in writing as
soon as practicable. During such 45-day period, (x) Priceline shall devote
sufficient commercial, technical, and legal resources to facilitate in good
faith Worldspan's evaluation of the proposed arrangement, and (y) Priceline
shall not be entitled to change the material terms of such third party
arrangement for purposes of this Paragraph. Priceline shall not enter any
such arrangement with a third party if Worldspan has elected to provide the
services and provided to Priceline a proposed definitive agreement that
meets the requirements set forth above. If Worldspan elects not to provide
the services or the 45-day period has expired without a response from
Worldspan that meets the requirements set forth above, then Priceline may
enter into such arrangement with the third party on terms and conditions
that do not materially deviate from the terms and conditions included in
the ROFR Notice to Worldspan.
28. [**] DEVELOPMENT HOURS. The Parties acknowledge that Worldspan has
previously provided consulting and development services to assist Priceline
with design of [**] reports and other issues relating to the GDS,
Priceline's operations, and back-office functions. In the event that
Priceline requires additional consulting and development services beyond
those provided prior to the Second Amendment Effective Date, then, upon
Priceline's request, Worldspan shall provide qualified individuals to
provide other technical services. These services shall be charged to
Priceline at the rate of [**] per person-hour or Worldspan's then current
standard rate for consulting services, whichever is higher.
29. [**] REPORTS. Worldspan shall provide [**] reports to Priceline in
conformity with Priceline's reasonable design requirements. Worldspan shall
discount by [**] its fees of [**] per month for this service.
30. SYSTEM DEVELOPMENT HOURS. Worldspan shall provide, at no charge, up to [**]
person-hours of annual mainframe or distributed systems development
resources for Worldspan system enhancements requested by Priceline, subject
to timelines as agreed by the Parties. Priceline acknowledges that these
resources have a value of [**] per year.
31. SUPPORT. Worldspan shall make available its Executive Support Help Desk and
Message Support Team to Priceline. These groups will provide consultation
relating to programming interface development and usage.
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 13
<Page>
32. WEB HOSTING. Should Priceline choose Worldspan to host its application and
web servers at Worldspan's data center pursuant to a separate Hosting
Agreement, Worldspan shall discount its then current monthly fee for this
service [**], subject to a maximum monthly discount of [**].
33. [**]
34. SERVICE LEVEL AGREEMENT. Priceline and Worldspan shall use their best
efforts to negotiate a mutually acceptable service level agreement
applicable to the services provided under the Subscriber Entity Agreement.
In the event that an agreement cannot be reached in such negotiations, then
the Subscriber Entity Agreement shall remain in full force and effect.
35. ESTIMATED BOOKINGS. No later than October 1 of each calendar year,
Priceline shall provide written documentation to Worldspan of the total
number of planned, budgeted and/or projected Bookings to be generated by
the Priceline Group through the Worldspan GDS during the following calendar
year.
36. EU AFFILIATE TERMINATION. Notwithstanding any provision of the Subscriber
Entity Agreement to the contrary, solely with respect to services provided
to any Affiliate located in a country of the European Union (an "EU
Affiliate"), Priceline and Worldspan may at their respective discretion
terminate services to such EU Affiliate without penalty on giving the other
at least ninety (90) days' prior written notice.
37. MAINTENANCE AT LOCATIONS. The first sentence of Section 4.A. of the
Standard Terms and Conditions is hereby deleted in its entirety and
replaced with the following:
"Worldspan or its service representative will provide, at Worldspan's
expense, normal repairs and maintenance during Worldspan's normal
repair hours for the Worldspan Equipment at the Locations.
38. EQUIPMENT RELOCATION. The first sentence of Section 5.C. of the Standard
Terms and Conditions is hereby deleted in its entirety and replaced with
the following:
"Customer shall give Worldspan at least thirty (30) days' prior
written notice of its request to relocate or remove the Worldspan
Equipment."
39. EQUIPMENT RELOCATION FEES. Section 5.D. of the Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the
following:
"Worldspan reserves the right to levy an additional charge over and
above the Standard Fees for installations, relocations or removals
that are requested with less than thirty (30) days' prior written
notice, or those that are requested outside of normal business hours
in accordance with the Table of Services and Charges."
40. TERMINATION DEINSTALLATION FEES. Section 5.E. of the Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the
following:
"Upon any termination of the Subscriber Agreement, Worldspan shall
[**] for deinstallation and return of the Worldspan Equipment."
41. EU BOOKINGS. Section 6.B. of the Standard Terms and Conditions is hereby
deleted in its entirety and replaced with the following:
"For the business activity of the EU Affiliates, "Bookings" shall mean
the total of the Segments generated by EU Affiliates through the
Worldspan GDS for which Worldspan charges and collects a fee,
including EU Airline Bookings, EU Rail Bookings, and EU Car, Hotel,
Tour, Cruise, and Ferry Bookings, each as further defined below.
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 14
<Page>
1. EU Airline Bookings. "EU Airline Bookings" shall mean those
ticketed airline Segments properly booked by an EU Affiliate
through the Worldspan GDS for which Worldspan charges and
collects a fee, less cancellations through the Worldspan GDS
prior to date of departure. "Ticketed airline Segments" shall
mean airline Segments (i) for which an EU Affiliate has issued
tickets through the Worldspan GDS or (ii) for which an EU
Affiliate has systematically informed Worldspan of valid ticket
numbers associated with the Segments.
2. EU Rail Bookings. "EU Rail Bookings" shall mean those
ticketed rail Segments properly booked by an EU Affiliate through
the Worldspan GDS for which Worldspan charges and collects a fee,
less cancellations through the Worldspan GDS prior to date of
departure, adjusted by any applicable correction ratios to
reflect the value of those Bookings to Worldspan. "Ticketed rail
Segments" shall mean rail Segments (i) for which an EU Affiliate
has issued tickets through the Worldspan GDS, (ii) for which an
EU Affiliate has systematically informed Worldspan of valid
travel documentation associated with the Segments, or (iii) which
are not sold through the principal display of the Worldspan GDS.
3. EU Car, Hotel, Tour, Cruise, and Ferry Bookings. "EU Car,
Hotel, Tour, Cruise, and Ferry Bookings" shall mean those
Segments for car, hotel, tour, cruise, and ferry services
properly booked by an EU Affiliate through the Worldspan GDS for
which Worldspan charges and collects a fee and which are not
cancelled, adjusted by any applicable correction ratios to
reflect the value of those Bookings to Worldspan.
For Bookings made by the Affiliates in countries not included in the
European Union, airline Bookings mean those Segments properly booked
by such Affiliates through the Worldspan GDS for which Worldspan
charges and collects a fee, less cancellations through the Worldspan
GDS prior to date of departure, excluding unticketed passive bookings.
Car, Hotel, Tour Source, Cruise Line Source, CruiseMatch and Worldspan
Travel Suppliers Bookings mean those Segments properly booked by such
Affiliates through the Worldspan GDS for which Worldspan charges and
collects a fee and which are not canceled. Customer consents to any
retroactive adjustment by Worldspan of incorrect Booking counts. The
determination of the number of Bookings shall be made solely by
Worldspan from its books and records, subject to Paragraph 4 of the
Second Amendment to the Subscriber Entity Agreement."
42. WORLDSPAN GDS MODIFICATIONS. Section 6.D. of the Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the
following:
"Worldspan may enhance or modify the GDS at its discretion at any
time; provided, however, that any such enhancement or modification
does not materially adversely affect the services provided to Customer
pursuant to the Subscriber Agreement. Worldspan reserves the right to
migrate Customer to new computer reservation systems used by
Worldspan."
43. MESSAGE LIMIT. Section 6.H.ii. of the Standard Terms and Conditions is
hereby deleted in its entirety and replaced with the following:
"Message Limit: The "Message Limit" is [**]. The total monthly
permitted Messages ("Allowable Messages") is calculated by multiplying
the [**] Messages per Booking by the number of Bookings for that
month. Worldspan shall charge Customer for excess Messages at a rate
of [**] per Message above the Allowable Messages for any month."
44. EXCESS MESSAGE FEES. The Excess Message Fees section of the Table of
Services and Charges is hereby deleted in its entirety and replaced with
the following:
"Excess Message Fees
Peak Message Rate (8am-12pm) N [**]
Off-Peak Rate (12pm-8am) N [**]"
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 15
<Page>
45. SECURITY MEASURES. Section 8.D. of the Standard Terms and Conditions is
hereby deleted in its entirety and replaced with the following:
"Each party will implement and maintain appropriate security measures
for its operations in accordance with technological developments and
its evolving security needs. Those appropriate security measures for
each party will include, without limitation, establishing a security
policy for its computer network, preventing unauthorized access to its
computer systems, implementing administrative security controls for
its computing operations, installing firewalls in its communications
network, protecting its computer resources from insider abuse, having
appropriate administrative procedures to ensure that system access
capability to its computer systems is given to only authorized users
and is promptly withdrawn from terminated employees or other persons
who are no longer authorized, establishing a single point of control
for responses to incidents involving its security, and monitoring the
effectiveness of the security of its computer network."
46. GDS UPTIME. Section 9.A.iv. of the Standard Terms and Conditions is hereby
deleted in its entirety and replaced with the following:
"it will use its best efforts to maintain the uptime of the GDS."
47. CONDITIONAL FEE REDUCTION. Section 11.D. of the Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the
following:
"Any reduction, waiver or discounting of any fee in the Subscriber
Agreement by Worldspan is specifically conditioned upon Customer's
generation of Bookings sufficient to meet the Booking Goal to qualify
for a [**] Productivity Discount under Article III.A. of the
Subscriber Entity Agreement."
48. ASSIGNMENT OF SUBSCRIBER ENTITY AGREEMENT. Section 12. of the Standard
Terms and Conditions is hereby deleted in its entirety and replaced with
the following:
"The Subscriber Agreement will be binding upon, and inure to the
benefit of, the parties and their respective successors and assigns.
However, neither party may, without the prior written consent of the
other, assign or transfer the Subscriber Agreement, or any of its
rights or obligations under the Subscriber Agreement, to any person or
entity other than one who (i) merges, consolidates, or otherwise
combines with that party or otherwise acquires all or substantially
all of the operating assets of that party, and (ii) agrees or
otherwise becomes legally obligated to comply with and be bound by the
provisions of the Subscriber Agreement to the same extent as that
party."
49. LEGAL COMPLIANCE. Section 14.A.iv. of the Standard Terms and Conditions is
hereby deleted in its entirety and replaced with the following:
"Customer commits any material violation(s) of any laws, ordinances or
regulations related to the products or services provided under the
Subscriber Entity Agreement;"
50. POST-TERMINATION DAMAGES. Section 14.E. of the Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the
following:
"Upon any termination of the Subscriber Entity Agreement pursuant to
this Section 14, as a consequence of any default as set forth herein,
the non-defaulting party shall be entitled to recover its damages at
law from the defaulting party, in addition to any other rights or
remedies that the non-defaulting party may have at law, equity, or
otherwise."
51. FAILURE TO MEET BOOKING OBLIGATIONS. Section 14.F. of the Standard Terms
and Conditions is hereby deleted in its entirety and replaced with the
following:
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 16
<Page>
"The parties acknowledge that the provisions of this Section 14 shall
not apply to any failure by Customer to comply with the obligations of
Paragraph 6 of the Second Amendment to the Subscriber Entity
Agreement."
52. LIMITATION OF LIABILITY. Section 14. of the Standard Terms and Conditions
is hereby amended to include the following new Section 14.G.:
"Notwithstanding anything in the Subscriber Entity Agreement to the
contrary, Customer's liability under this Agreement shall not exceed
the lesser of (i) the number of Expected Bookings, multiplied by [**],
or (ii) Twenty-Five Million Dollars ($25,000,000)."
53. NON-DISCLOSURE OF TERMS. Section 17.B. of the Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
"Customer and Worldspan agree not to disclose the terms and conditions
of the Subscriber Agreement without the prior written consent of the
other except as required by law. Notwithstanding the foregoing, either
party may disclose the terms and conditions of the Subscriber
Agreement to its attorneys and accountants who have a need to know and
who are advised of such party's obligation contained in this Section
17.B. In addition, in the event that Customer determines that public
disclosure of the Subscriber Agreement is required by the securities
laws of the United States, Customer shall so notify Worldspan
immediately and the parties shall confer to determine the legally
permissible means to protect the competitively sensitive material set
forth herein."
54. NOTICES TO PRICELINE. Section 17.E. of the Subscriber Entity Agreement is
hereby amended to add the following:
"Worldspan shall use reasonable business efforts to ensure that
notices and communications to be served by Worldspan to Customer shall
be sent to the attention of the Chief Information Officer, with a copy
to the attention of Chief Operating Officer."
55. ENTIRE AGREEMENT. Section 17.H. of the Standard Terms and Conditions is
hereby deleted in its entirety and replaced with the following:
"The Subscriber Agreement constitutes the full and final agreement
between the parties with respect to the subject matter hereof, and
unless otherwise provided, any prior agreements and understandings,
whether written or oral, are hereby superseded upon the beginning of
the Term of the Subscriber Agreement. The Parties agree that all prior
obligations contained in any prior agreements between Worldspan and
Customer are deemed, as of the date hereof, satisfied. Worldspan
agrees that all prior thresholds pertaining to Customer incentives
contained in any prior agreements between Worldspan and Customer are
deemed met, as of the date hereof. Except as provided herein, the
Subscriber Agreement may not be modified, altered or amended except by
agreement and/or consent by authorized representatives of both
parties; provided however that the Table of Services and Charges may
be modified, altered or amended by Worldspan upon thirty (30) days'
prior notice to Customer; and further provided that the Customer
Equipment Support Responsibility may be modified, altered or amended
by Worldspan upon notice to Customer."
56. CONTINUED EFFECTIVENESS OF SUBSCRIBER ENTITY AGREEMENT. Except to the
extent the Subscriber Entity Agreement is amended herein, the Subscriber
Entity Agreement remains in full force and effect. To the extent the terms
of this Amendment are inconsistent with the terms of the Subscriber Entity
Agreement, for purposes of this Amendment the terms of this Amendment shall
apply.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by
their duly authorized undersigned representatives as of the day and year first
above written.
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 17
<Page>
PRICELINE.COM INCORPORATED, WORLDSPAN, L.P.,
FOR ITSELF, ITS AFFILIATES, AND THE FOR ITSELF AND ITS SUBSIDIARIES:
PRICELINE GROUP:
By: By:
-------------------------------------- --------------------------------------
(Signature) (Signature)
-------------------------------------- --------------------------------------
(Print Name) (Print Name)
-------------------------------------- --------------------------------------
(Title) (Title)
-------------------------------------- --------------------------------------
(Date) (Date)
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
Page 18
<Page>
ATTACHMENT A
FORM OF [**] HOTEL BOOKING FEE AMENDMENT
AMENDMENT TO THE WORLDSPAN ASSOCIATE AGREEMENT
Internet Bookings - Hotel
THIS Amendment to the Worldspan Associate Agreement dated the ___ of
______, 2003 ("Amendment"), is by and between Worldspan, L. P., located at 300
Galleria Parkway, N. W., Atlanta, Georgia 30339 ("Worldspan') and
Associate Legal Name: ---------------------------------------------------------
dba: ---------------------------------------------------------
Address: -----------------------------------------------------------------
City: ------------------------------- State: --------------------- Zip: ------
Contact Name: ---------------------------------- Phone: ------------------------
e-mail address: ----------------------------------------------------------------
BILLING ADDRESS: Same as above
(hereinafter referred to as "Associate.")
WHEREAS, Worldspan and Associate entered into the Worldspan Agreement dated
the ____ of, __________ (the "Agreement").
WHEREAS, Worldspan and Associate now desire to amend the Agreement.
NOW, THEREFORE, it is agreed:
PART I - REVISION OF FEES FOR SELECT ONLINE BOOKINGS:
A. For Bookings of Hotel properties represented by Associate and created
via Designated Internet Agencies, as that term is defined in I.B.,
below, and through the Worldspan System, the following reduced fees
shall apply:
<Table>
<Caption>
-------------------------------------------------------------------------------------------
BEFORE AFTER
-------------------------------------------------------------------------------------------
<S> <C> <C>
Standard Booking:
-------------------------------------------------------------------------------------------
AccessPlus Booking:
-------------------------------------------------------------------------------------------
Source Booking:
-------------------------------------------------------------------------------------------
</Table>
B. For purposes of the Amendment, "Designated Internet Agencies" shall be
defined to include the entities identified in the attached Exhibit
"A."
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
A - 1
<Page>
PART II - ASSOCIATE AGREEMENT:
Except to the extent the Agreement is amended herein, the Agreement remains
in full force and effect. To the extent the terms of this Amendment are
inconsistent with the terms of the Agreement, for purposes of this Amendment the
terms of this Amendment shall apply.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized undersigned representative as of the day and
year first above written.
ASSOCIATE: WORLDSPAN, L. P.:
-------------------------------
(Associate Legal Name)
-------------------------------
(dba)
By: By:
---------------------------------- ----------------------------------
(Signature) (Signature)
---------------------------------- ----------------------------------
(Print Name) (Print Name)
---------------------------------- ----------------------------------
(Title) (Title)
---------------------------------- ----------------------------------
(Date) (Date)
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
A - 2
<Page>
EXHIBIT "A"
FURTHER to the _________, ___ Amendment ("Amendment") to the Worldspan
Associate Agreement dated the __ of ______, ___, by and between Worldspan, LP.,
("Worldspan") and ______ ("Associate"), the parties agree that the term
"Designated Agencies," as used in the Amendment, shall mean the following
entities:
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
A - 3
<Page>
ATTACHMENT B
[**]
<Table>
<S> <C> <C>
--------- ---------------------------------------------------------------------
[**] [**] [**]
--------- ---------------------------------------------------------------------
[**] [**] [**]
--------- ---------------------------------------------------------------------
[**] [**] [**]
--------- ---------------------------------------------------------------------
[**] [**] [**]
--------- ---------------------------------------------------------------------
[**] [**] [**]
--------- ---------------------------------------------------------------------
[**] [**] [**]
--------- ---------------------------------------------------------------------
</Table>
[**] = Confidential Treatment requested for redacted portion; redacted portion
has been filed separately with the commission.
B - 1