<PAGE>
As filed with the Securities and Exchange Commission on May 20, 1999
Registration No. 333-77073
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
AMENDMENT NO. 1
to
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------------------
TRAVELSCAPE.COM, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 4724 51-0387511
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
8951 W. Sahara Ave.
Las Vegas, Nevada 89117-5826
(702) 792-3811
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
---------------------------------------------
TIMOTHY N. POSTER
Chief Executive Officer
TRAVELSCAPE.COM, INC.
8951 W. Sahara Ave.
Las Vegas, NV 89117-5826
(702) 792-3811
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
---------------------------------------------
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
Francis S. Currie, Esq. Kenneth R. Lamb, Esq.
Martin A. Wellington, Esq. Peter T. Heilmann, Esq.
Kelly S. Boyd, Esq. Brian R. Gin, Esq.
Wilson Sonsini Goodrich & Rosati, P.C. Gibson, Dunn & Crutcher LLP
650 Page Mill Road One Montgomery Street
Palo Alto, CA 94304 Telesis Tower
(650) 493-9300 San Francisco, CA 94104
(415) 393-8200
</TABLE>
------------------------------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
------------------------------------
If the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), please check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
EXPLANATORY NOTE
This amendment is filed solely for the purpose of filing previously omitted
exhibits to the Registration Statement.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1.1* Form of Underwriting Agreement
2.1 Agreement and Plan of Reorganization
3.1* Form of Amended and Restated Certificate of Incorporation (to be filed with the
Delaware Secretary of State prior to the closing of the offering covered by this
Registration Statement)
3.2* Amended and Restated Bylaws
4.1* Form of Specimen Stock Certificate
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, regarding
legality of the securities being issued
10.1 Form of Indemnification Agreement between the Registrant and each of its directors
and officers
10.2 1998 Stock Plan
10.3* 1999 Stock Plan
10.4* 1999 Employee Stock Purchase Plan
10.5+ Campaign Insertion Order between Registrant and 24/7 Media dated August 28, 1998
(MapQuest Agreement #1).
10.6+ Campaign Insertion Order between Registrant and 24/7 Media dated January 19, 1999
(MapQuest Agreement #2).
10.7+ Campaign Insertion Order between Registrant and 24/7 Media dated February 24, 1999
(MapQuest Agreement #3).
10.8+ Shopping and Services Program Merchant Agreement between the Registrant and
DoubleClick Inc., dated as of December 11, 1998.
10.9+ Luxor Las Vegas 1998 Wholesale Contract Agreement between the Registrant and
Ramparts, Inc. dated as of January 1, 1998.
10.10+ Luxor Las Vegas 1999 Wholesale Contract Agreement between the Registrant and
Ramparts, Inc. dated as of January 3, 1999.
10.11+ Contract Bulk Fare and Marketing Agreement between Registrant and American Airlines,
Inc. dated as of October 22, 1998.
10.12 Voting Agreement by and among Timothy Poster, Thomas Breitling and Jeffrey Marquis
10.13 Form of Promissory Note from the February 1999 private placement of units
10.14 Form of Warrant from the February 1999 private placement of units
11.1* Statement regarding computation of per share earnings
12.1* Statement regarding computation of ratios
23.1** Consent of KPMG LLP
23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in
Exhibit 5.1)
24.1** Power of Attorney (contained in the signature page to this Registration Statement)
27.1* Financial Data Schedule
</TABLE>
- ------------------------------------
* to be filed by amendment
** filed previously
+ confidential treatment requested
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 1 to the registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada on May 19, 1999.
By: /s/ JEFFREY A. MARQUIS
-----------------------------------
Jeffrey A. Marquis
Chief Financial Officer
POWER OF ATTORNEY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED:
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
President, Chief Executive
/s/ TIMOTHY N. POSTER* Officer and Director
- ------------------------------ (Principal Executive May 19, 1999
Timothy N. Poster Officer)
/s/ JEFFREY A. MARQUIS Chief Financial Officer
- ------------------------------ (Principal Financial and May 19, 1999
Jeffrey A. Marquis Accounting Officer)
/s/ THOMAS C. BREITLING*
- ------------------------------ Director and Chief May 19, 1999
Thomas C. Breitling Operating Officer
/s/ LORENZO J. FERTITTA*
- ------------------------------ Director May 19, 1999
Lorenzo J. Fertitta
/s/ MICHAEL J. CONWAY*
- ------------------------------ Director May 19, 1999
Michael J. Conway
/s/ TOBIN J. COREY*
- ------------------------------ Director May 19, 1999
Tobin J. Corey
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ JEFF MARQUIS
-------------------------
Jeff Marquis,
ATTORNEY IN FACT
</TABLE>
II-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C>
1.1* Form of Underwriting Agreement
2.1 Agreement and Plan of Reorganization
3.1* Form of Amended and Restated Certificate of Incorporation (to be filed with the
Delaware Secretary of State prior to the closing of the offering covered by this
Registration Statement)
3.2* Amended and Restated Bylaws
4.1* Form of Specimen Stock Certificate
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, regarding
legality of the securities being issued
10.1 Form of Indemnification Agreement between the Registrant and each of its directors
and officers
10.2 1998 Stock Plan
10.3* 1999 Stock Plan
10.4* 1999 Employee Stock Purchase Plan
10.5+ Campaign Insertion Order between Registrant and 24/7 Media dated August 28, 1998
(MapQuest Agreement #1).
10.6+ Campaign Insertion Order between Registrant and 24/7 Media dated January 19, 1999
(MapQuest Agreement #2).
10.7+ Campaign Insertion Order between Registrant and 24/7 Media dated February 24, 1999
(MapQuest Agreement #3).
10.8+ Shopping and Services Program Merchant Agreement between the Registrant and
DoubleClick Inc., dated as of December 11, 1998.
10.9+ Luxor Las Vegas 1998 Wholesale Contract Agreement between the Registrant and
Ramparts, Inc. dated as of January 1, 1998.
10.10+ Luxor Las Vegas 1999 Wholesale Contract Agreement between the Registrant and
Ramparts, Inc. dated as of January 3, 1999.
10.11+ Contract Bulk Fare and Marketing Agreement between Registrant and American Airlines,
Inc. dated as of October 22, 1998.
10.12 Voting Agreement by and among Timothy Poster, Thomas Breitling and Jeffrey Marquis
10.13 Form of Promissory Note from the February 1999 private placement of units
10.14 Form of Warrant from the February 1999 private placement of units
11.1* Statement regarding computation of per share earnings
12.1* Statement regarding computation of ratios
23.1** Consent of KPMG LLP
23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in
Exhibit 5.1)
24.1** Power of Attorney (contained in the signature page to this Registration Statement)
27.1* Financial Data Schedule
</TABLE>
- ------------------------------------
* to be filed by amendment
** filed previously
+ confidential treatment requested
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made
this 22nd day of January, 1999, by and between Las Vegas Reservations
Systems, Inc., a Nevada Corporation ("LVRS"), Travelscape.com, Inc., a Nevada
Corporation ("TS"), Professional Travel Service, Inc., a Nevada Corporation
("PTS"), Travelscape.com, Inc., a Delaware Corporation ("Travelscape"),
Timothy N. Poster ("Poster"), Thomas C. Breitling ("Breitling"), Frank J.
Fertitta, Jr. as Trustee of the Frank J. Fertitta and Victoria K. Fertitta
Revocable Family Trust and Lorenzo J. Fertitta (together, "Fertitta"), and
Jeffrey A. Marquis ("Marquis").
BACKGROUND
The issued and outstanding stock of LVRS is owned 70% by Poster and
30% by Breitling. The issued and outstanding stock of TS is owned 40% by
Breitling, 34% by LVRS, 20% by Fertitta, and 6% by Marquis. The issued and
outstanding stock of PTS is owned 50% by Breitling and 50% by Poster. The
parties desire to enter into this Agreement in order to restructure the
corporations so that Poster, Breitling, Fertitta and Marquis will
collectively own 100% of the issued and outstanding stock of Travelscape, a
Delaware holding company, which, in turn, will own all of the issued and
outstanding stock of LVRS, TS, and PTS.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT OF REORGANIZATION. The parties shall take all action
necessary to consummate the corporate reorganization (the "Reorganization")
as follows:
1.1 CREATION OF DELAWARE HOLDING COMPANY.
1.1.1 FORMATION. LVRS, Poster, Breitling, Fertitta, and
Marquis have caused Travelscape to be organized as a new corporation under
the laws of the State of Delaware, with the authority to issue Twenty-Five
Million (25,000,000) shares of capital stock, $.01 par value per share.
1.1.2 CAPITALIZATION. Travelscape shall be capitalized as
follows:
1.1.2.1 CONTRIBUTION OF TS SHARES. In exchange for
Five-Million (5,000,000) shares of the voting capital stock of Travelscape,
LVRS, Breitling, Fertitta, and Marquis shall assign, transfer, convey and
deliver to Travelscape all of the issued and outstanding shares of stock they
hold in TS, representing all of the issued and outstanding capital stock of
TS. Of the Five-Million (5,000,000) shares of Travelscape transferred,
Two-Million (2,000,000) shares shall be allocated to Breitling, One-Million
Seven-Hundred Thousand (1,700,000) shares shall be allocated to LVRS,
One-Million (1,000,000) shares shall be allocated to Fertitta, and
Three-Hundred Thousand (300,000) shares shall be allocated to Marquis.
1.1.2.2 CONTRIBUTION OF PTS SHARES. In exchange for
Two Hundred Thousand (200,000) shares of the voting capital stock of
Travelscape, Poster and Breitling shall
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<PAGE>
assign, transfer, convey and deliver to Travelscape all of the issued and
outstanding shares of stock they hold in PTS, representing all of the issued
and outstanding capital stock of PTS. Of the Two-Hundred Thousand (200,000)
shares transferred, One-Hundred Thousand (100,000) shares shall be allocated
to Poster and One-Hundred Thousand (100,000) shares shall be allocated to
Breitling.
1.1.3 SECTION 351. The creation of Travelscape, and all
of its steps, are intended to comply with Section 351 of the Internal Revenue
Code of 1986, as amended ("Code").
1.2 ACQUISITION OF LVRS BY TRAVELSCAPE.
1.2.1.1 SHARE EXCHANGE. In exchange for Six-Million
Five-Hundred Thousand (6,500,000) shares of the voting capital stock of
Travelscape, Poster and Breitling shall assign, transfer, convey and deliver
to Travelscape all of the issued and outstanding stock they hold in LVRS,
representing all of the issued and outstanding stock of LVRS. Of the Six
Million Five Hundred Thousand (6,500,000) shares issued, Four Million Five
Hundred Fifty Thousand (4,550,000) shares shall be allocated to Poster and
One Million Nine Hundred Fifty Thousand (1,950,000) shares shall be allocated
to Breitling.
1.2.2 CANCELLATION OF LVRS SHARES IN TRAVELSCAPE. All of
the One-Million Seven-Hundred Thousand (1,700,000) shares LVRS owns in
Travelscape shall be automatically canceled and null and void without any
further action on the part of Poster, LVRS, or Travelscape.
1.2.3 SECTION 368. The acquisition of LVRS stock by
Travelscape, and all of its steps, are intended to comply with Section
368(a)(1)(B) of the Code.
1.3 ASSUMPTION OF TS STOCK OPTIONS. At the Closing, each
outstanding option to purchase shares of TS under the TS 1998 Stock Plan,
whether vested or unvested, will be assumed by Travelscape. SCHEDULE 1.3
hereto sets forth a true and complete list as of the date hereof of all
holders of outstanding options under the TS 1998 Stock Plan, including the
number of shares of TS Common Stock subject to each such option, the exercise
or vesting schedule, the exercise price per share and the term of each such
option. Each such option so assumed by Travelscape under this Agreement
shall continue to have, and be subject to, the same terms and conditions set
forth in the TS 1998 Stock Plan and the documents governing the outstanding
options under that plan, immediately prior to the Closing. Without in any
way limiting the foregoing, (i) each such option will be exercisable for the
same number of whole shares of Travelscape Common Stock as the number of
whole shares of TS Common Stock that were issuable upon exercise of such
option immediately prior to the Closing, and (ii) the per share exercise
price for the shares of Travelscape Common Stock issuable upon exercise of
such assumed option will be equal to the exercise price per share of TS
Common Stock at which such option was exercisable immediately prior to the
Closing. Consistent with the terms of the TS 1998 Stock Option Plan and the
documents governing the outstanding options under that Plan, the Closing will
not terminate any of the outstanding options under such plan or accelerate
the exercisability or vesting of such options. It is the intention of the
parties that the options so assumed by Travelscape qualify following the
Closing as incentive stock options as defined in Section 422 of the Code to
the extent such options qualified as incentive stock options as of the
Closing.
-2-
<PAGE>
2. CLOSING.
2.1 DATE AND PLACE. The consummation of the Reorganization (the
"Closing") shall take place as soon as possible after the execution of this
Agreement but shall be deemed effective as of the close of business on
January 22, 1999 (the "Effective Date").
2.2 FORM OF DOCUMENTS. All documents required to be delivered or
executed and delivered hereunder shall be in the form reasonably approved by
counsel to the parties.
2.3 ADDITIONAL DOCUMENTS. Each party shall deliver or execute and
deliver to the other those other documents which the other party reasonably
requests in order to effectuate the transactions contemplated hereby.
3. REPRESENTATIONS AND WARRANTIES OF LVRS. LVRS represents and
warrants to Travelscape, PTS, TS, Breitling, Poster, Fertitta, and Marquis as
of the date of this Agreement and as of the Closing that:
3.1 ORGANIZATION. LVRS is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada; and has
all requisite corporate power and authority to own, operate, and lease its
properties, to carry on its business as now being conducted, to enter into
this Agreement, and to carry out the contemplated transactions.
3.2 AUTHORIZATION. The board of directors of LVRS has duly
advised, and the sole stockholder has duly approved, the execution, delivery
and performance of this Agreement and the contemplated transactions; this
Agreement has been properly executed by the duly-authorized officers of LVRS;
and this Agreement is the valid and binding obligation of LVRS and is
enforceable in accordance with its terms.
3.3 NO VIOLATION. Neither the execution, delivery or performance
of this Agreement nor the consummation of the transactions contemplated
hereby will conflict with, violate the terms of or constitute a breach of
default of or under the charter or bylaws of LVRS; or any agreement to which
LVRS is a party; any order, judgment, or decree applicable to LVRS, or any
law, administrative directive, or regulation applicable to LVRS.
3.4 LVRS SHARES. The authorized capital stock of LVRS consists of
Two-Thousand Five-Hundred (2,500) shares of common stock, no par value, of
which Two-Hundred (200) shares are issued and outstanding. Of the Two
Hundred (200) shares outstanding prior to the Reorganization, One Hundred
Forty (140) shares are held by Poster and Sixty (60) shares are held by
Breitling. There are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), or agreements
for the purchase or acquisition from LVRS of any shares of its capital stock.
LVRS is not a party or subject to any agreement or understanding, and, to the
best knowledge of LVRS, there is no agreement or understanding between any
persons that affects or relates to the voting or giving of written consents
with respect to any security or the voting by any director of LVRS.
3.5 CONSENTS AND APPROVALS. No consent, approval, or
authorization of or designation, declaration, or filing with any governmental
authority or other person or entity is
-3-
<PAGE>
required in connection with the execution, delivery or performance of this
Agreement or the consummation of the contemplated transactions.
3.6 SUITS AND PROCEEDINGS. Except as provided in SCHEDULE 3.6
hereof, there is no suit, action, litigation, administrative proceeding,
arbitration proceeding, governmental proceeding, investigation, inquiry, or
other proceeding which is pending or, to the best of the knowledge,
threatened against LVRS or which would materially and adversely affect LVRS.
3.7 COMPLIANCE WITH LAWS. LVRS has fully complied with all
federal, state and local laws, rules, regulations and administrative
directives and has not received, and does not have reason to believe that it
will receive, oral or written notice of any claim or violation under any law,
ordinance, requirement, regulation, or order applicable to LVRS or its
business.
3.8 TAX RETURNS. LVRS has filed all tax returns, of every kind,
nature, or description, required to be filed by LVRS and has paid or remitted
to the proper authority all taxes and assessments, including, without
limitation, all excise taxes, sales taxes, payroll withholding taxes, FICA
taxes, unemployment taxes, and personal property taxes, which are required to
be paid or remitted by LVRS.
3.9 LICENSES AND PERMITS. LVRS has all licenses and permits
necessary to conduct its business as it is being conducted and has paid all
fees and charges due in connection therewith.
3.10 STOCK VALUE. The fair market value of the Travelscape stock
received pursuant to SECTION 1.1 hereof is approximately equal to the fair
market value of the TS stock exchanged therefore.
3.11 NO PREARRANGED PLAN. There is no plan or intention by LVRS to
issue additional shares of its stock after the Reorganization that would
result in Travelscape losing control of LVRS within the meaning of Section
368(c)(1) of the Code.
3.12 NO REDEMPTION. There is no plan or intention by LVRS to
redeem any of its outstanding stock after the Reorganization.
3.13 NO LIQUIDATION OR MERGER. There is no plan or intention to
liquidate LVRS, to merge with any other corporation, or to sell or otherwise
dispose of its assets of LVRS after the Reorganization, except in the
ordinary course of business.
3.14 EXPENSES. LVRS will pay its expenses incurred in the
Reorganization.
3.15 HISTORIC BUSINESS. Following the Reorganization, LVRS will
continue its historic business or use a significant portion of its historic
business assets in a business.
3.16 FMV OF ASSETS. On the date of the Reorganization, the fair
market value of the assets of LVRS will exceed the sum of its liabilities
plus the liabilities, if any, to which the assets are subject.
-4-
<PAGE>
4. REPRESENTATIONS AND WARRANTIES OF TS. TS represents and warrants
to LVRS, PTS, Travelscape, Breitling, Poster, Fertitta, and Marquis as of the
date of this Agreement and as of the Closing that:
4.1 ORGANIZATION. TS is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada; and has
all requisite corporate power and authority to own, operate, and lease its
properties, to carry on its business as now being conducted, to enter into
this Agreement, and to carry out the contemplated transactions.
4.2 AUTHORIZATION. The board of directors of TS has duly advised,
and the stockholders have duly approved the execution, delivery and
performance of this Agreement and the contemplated transactions; this
Agreement has been properly executed by the duly-authorized officers of TS;
and this Agreement is the valid and binding obligation of TS and is
enforceable in accordance with its terms.
4.3 NO VIOLATION. Neither the execution, delivery or performance
of this Agreement nor the consummation of the transactions contemplated
hereby will conflict with, violate the terms of or constitute a breach of
default of or under the charter or bylaws of TS; any agreement to which TS is
a party; any order, judgment, or decree applicable to TS; or any law,
administrative directive, or regulation applicable to TS.
4.4 TS SHARES. The authorized capital stock of TS consists of
Twenty-Five Million (25,000,000) shares of common stock, $.001 par value, of
which Five-Million (5,000,000) shares are issued and outstanding. Of the
Five-Million (5,000,000) shares outstanding prior to the Reorganization,
Two-Million (2,000,000) shares are held by Breitling, One-Million
Seven-Hundred Thousand (1,700,000) shares are held by LVRS, One-Million
(1,000,000) shares are held by Fertitta, and Three-Hundred Thousand (300,000)
shares are held by Marquis. In addition, there are reserved for issuance
under the TS 1998 Stock Plan a total of One-Million Five-Hundred Thousand
(1,500,000) shares of Common Stock, of which zero (0) shares have been issued
pursuant to option exercises, Six-Hundred Eighty-Five Thousand (685,000)
shares are subject to outstanding options and Eight-Hundred Fifteen Thousand
(815,000) shares are available for future grants. Except as set forth above,
there are no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal), or agreements for the
purchase or acquisition from TS of any shares of its capital stock. TS is
not a party or subject to any agreement or understanding, and, to the best
knowledge of TS, there is no agreement or understanding between any persons
that affects or relates to the voting or giving of written consents with
respect to any security or the voting by any director of TS.
4.5 CONSENTS AND APPROVALS. No consent, approval, or
authorization of or designation, declaration, or filing with any governmental
authority or other person or entity is required in connection with the
execution, delivery or performance of this Agreement or the consummation of
the contemplated transactions.
4.6 SUITS AND PROCEEDINGS. Except as provided in SCHEDULE 4.6
hereof, there is no suit, action, litigation, administrative proceeding,
arbitration proceeding, governmental proceeding,
-5-
<PAGE>
investigation, inquiry, or other proceeding which is pending or, to the best
of the knowledge, threatened against TS or which would materially and
adversely affect TS.
4.7 COMPLIANCE WITH LAWS. TS has fully complied with all federal,
state and local laws, rules, regulations and administrative directives and
has not received, and does not have reason to believe that it will receive,
oral or written notice of any claim or violation under any law, ordinance,
requirement, regulation, or order applicable to TS or its business.
4.8 TAX RETURNS. TS has filed all tax returns, of every kind,
nature, or description, required to be filed by TS and has paid or remitted
to the proper authority all taxes and assessments, including, without
limitation, all excise taxes, sales taxes, payroll withholding taxes, FICA
taxes, unemployment taxes, and personal property taxes, which are required to
be paid or remitted by TS.
4.9 LICENSES AND PERMITS. TS has all licenses and permits
necessary to conduct its business as it is being conducted and has paid all
fees and charges due in connection therewith.
4.10 STOCK VALUE. The fair market value of the Travelscape stock
received by LVRS, Breitling, Fertitta and Marquis pursuant to SECTION 1.1.2.1
hereof is approximately equal to the fair market value of the TS stock
exchanged therefore.
4.11 NO PREARRANGED PLAN. There is no plan or intention by TS to
issue additional shares of its stock after the Reorganization that would
result in Travelscape losing control of TS within the meaning of Section
368(c)(1) of the Code.
4.12 NO REDEMPTION. There is no plan or intention by TS to redeem
any of its outstanding stock after the Reorganization.
4.13 NO LIQUIDATION OR MERGER. There is no prearranged plan to
liquidate TS, to merge with any other corporation, or to sell or otherwise
dispose of its assets after the Reorganization, except in the ordinary course
of business.
4.14 EXPENSES. TS will pay its expenses incurred in the
Reorganization.
4.15 HISTORIC BUSINESS. Following the Reorganization, TS will
continue its historic business or use a significant portion of its historic
business assets in a business.
4.16 FMV OF ASSETS. On the date of the Reorganization, the fair
market value of the assets of TS will exceed the sum of its liabilities plus
the liabilities, if any, to which the assets are subject.
5. REPRESENTATIONS AND WARRANTIES OF PTS. PTS represents and warrants
to TS, LVRS, Travelscape, Breitling, Poster, Fertitta, and Marquis as of the
date of this Agreement and as of the Closing that:
5.1 ORGANIZATION. PTS is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada; and has
all requisite corporate power and
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<PAGE>
authority to own, operate, and lease its properties, to carry on its business
as now being conducted, to enter into this Agreement, and to carry out the
contemplated transactions.
5.2 AUTHORIZATION. The board of directors of PTS has duly
advised, and the stockholders have duly approved the execution, delivery and
performance of this Agreement and the contemplated transactions; this
Agreement has been properly executed by the duly-authorized officers of PTS;
and this Agreement is the valid and binding obligation of PTS and is
enforceable in accordance with its terms.
5.3 NO VIOLATION. Neither the execution, delivery or performance
of this Agreement nor the consummation of the transactions contemplated
hereby will conflict with, violate the terms of or constitute a breach of
default of or under the charter or bylaws of PTS; any agreement to which PTS
is a party; any order, judgment, or decree applicable to PTS; or any law,
administrative directive, or regulation applicable to PTS.
5.4 PTS SHARES. The authorized capital stock of PTS consists of
Two-Thousand Five-Hundred (2,500) shares of common stock, no par value, of
which One-Thousand (1000) shares are issued and outstanding. Of the
One-Thousand (1000) shares outstanding prior to the Reorganization,
Five-Hundred (500) shares are held by Breitling and Five-Hundred (500) shares
are held by Poster. There are no outstanding options, warrants, rights
(including conversion or preemptive rights and rights of first refusal), or
agreements for the purchase or acquisition from PTS of any shares of its
capital stock. PTS is not a party or subject to any agreement or
understanding, and, to the best knowledge of PTS, there is no agreement or
understanding between any persons that affects or relates to the voting or
giving of written consents with respect to any security or the voting by any
director of PTS.
5.5 CONSENTS AND APPROVALS. No consent, approval, or
authorization of or designation, declaration, or filing with any governmental
authority or other person or entity is required in connection with the
execution, delivery or performance of this Agreement or the consummation of
the contemplated transactions.
5.6 SUITS AND PROCEEDINGS. There is no suit, action, litigation,
administrative proceeding, arbitration proceeding, governmental proceeding,
investigation, inquiry, or other proceeding which is pending or, to the best
of the knowledge, threatened against PTS or which would materially and
adversely affect PTS.
5.7 COMPLIANCE WITH LAWS. PTS has fully complied with all
federal, state and local laws, rules, regulations and administrative
directives and has not received, and does not have reason to believe that it
will receive, oral or written notice of any claim or violation under any law,
ordinance, requirement, regulation, or order applicable to PTS or its
business.
5.8 TAX RETURNS. PTS has filed all tax returns, of every kind,
nature, or description, required to be filed by PTS and has paid or remitted
to the proper authority all taxes and assessments, including, without
limitation, all excise taxes, sales taxes, payroll withholding taxes, FICA
taxes, unemployment taxes, and personal property taxes, which are required to
be paid or remitted by PTS.
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5.9 LICENSES AND PERMITS. PTS has all licenses and permits
necessary to conduct its business as it is being conducted and has paid all
fees and charges due in connection therewith.
5.10 STOCK VALUE. The fair market value of the Travelscape stock
received by Breitling and Poster pursuant to SECTION 1.1.2.2 hereof is
approximately equal to the fair market value of the PTS stock exchanged
therefore.
5.11 NO PREARRANGED PLAN. There is no plan or intention by PTS to
issue additional shares of its stock after the Reorganization that would
result in Travelscape losing control of PTS within the meaning of Section
368(c)(1) of the Code.
5.12 NO REDEMPTION. There is no plan or intention by PTS to redeem
any of its outstanding stock after the Reorganization.
5.13 NO LIQUIDATION OR MERGER. There is no prearranged plan to
liquidate PTS, to merge with any other corporation, or to sell or otherwise
dispose of its assets after the Reorganization, except in the ordinary course
of business.
5.14 EXPENSES. PTS will pay its expenses incurred in the
Reorganization.
5.15 HISTORIC BUSINESS. Following the Reorganization, PTS will
continue its historic business or use a significant portion of its historic
business assets in a business.
5.16 FMV OF ASSETS. On the date of the Reorganization, the fair
market value of the assets of PTS will exceed the sum of its liabilities plus
the liabilities, if any, to which the assets are subject.
6. REPRESENTATIONS AND WARRANTIES OF TRAVELSCAPE. Travelscape
represents and warrants to LVRS, TS, PTS, Breitling, Poster, Fertitta, and
Marquis as of the date of this Agreement and as of the Closing that:
6.1 ORGANIZATION. Travelscape is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Delaware; and has all requisite corporate power and authority to own,
operate, and lease its properties, to carry on its business as now being
conducted, to enter into this Agreement, and to carry out the contemplated
transactions.
6.2 AUTHORIZATION. The board of directors of Travelscape has duly
advised, and the stockholders have duly approved the execution, delivery and
performance of this Agreement and the contemplated transactions; this
Agreement has been properly executed by the duly-authorized officers of
Travelscape; and this Agreement is the valid and binding obligation of
Travelscape and is enforceable in accordance with its terms.
6.3 NO VIOLATION. Neither the execution, delivery or performance
of this Agreement nor the consummation of the transactions contemplated
hereby will conflict with, violate the terms of or constitute a breach of
default of or under the charter or bylaws of Travelscape; any agreement to
which Travelscape is a party; any order, judgment, or decree applicable to
Travelscape; or any law, administrative directive, or regulation applicable
to Travelscape.
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6.4 TRAVELSCAPE SHARES. The authorized capital stock of
Travelscape consists of Twenty-Five Million (25,000,000) shares of common
stock, $.01 par value. Immediately prior to the Reorganization, there are no
outstanding options, warrants, rights (including conversion or preemptive
rights and rights of first refusal), or agreements for the purchase or
acquisition from Travelscape of any shares of its capital stock. Travelscape
is not a party or subject to any agreement or understanding, and, to the best
knowledge of Travelscape, there is no agreement or understanding between any
persons that affects or relates to the voting or giving of written consents
with respect to any security or the voting by any director of Travelscape.
6.5 CONSENTS AND APPROVALS. No consent, approval, or
authorization of or designation, declaration, or filing with any governmental
authority or other person or entity is required in connection with the
execution, delivery or performance of this Agreement or the consummation of
the contemplated transactions.
6.6 STOCK VALUE. The fair market value of the Travelscape stock
received by LVRS, Poster, Breitling, Fertitta and Marquis pursuant to
SECTIONS 1.1 and 1.2 hereof is approximately equal to the fair market value
of the LVRS, TS and PTS stock exchanged therefore.
6.7 NO REDEMPTION. There is no plan or intention by Travelscape
to reacquire any of its outstanding stock issued in the Reorganization.
6.8 NO LIQUIDATION OR MERGER. There is no prearranged plan to
liquidate LVRS, TS or PTS, to merge LVRS, TS or PTS with any other
corporation, or to sell or otherwise dispose of the assets of LVRS, TS or PTS
after the Reorganization, except in the ordinary course of business.
6.9 EXPENSES. Travelscape will pay its expenses incurred in the
Reorganization.
7. REPRESENTATIONS AND WARRANTIES OF POSTER. Poster represents and
warrants to LVRS, TS, PTS, Travelscape, Breitling, Fertitta and Marquis, as
of the date hereof and as of the Closing, that:
7.1 NO VIOLATION. Neither the execution and delivery by Poster of
this Agreement, nor the performance of his obligations hereunder or the
consummation of the transactions contemplated hereby, will constitute or,
with the giving of notice or the passage of time or both, would constitute a
violation of or would conflict with or result in any breach of or default
under any of the terms, conditions, or provisions or any judgement, law,
regulation, contract, agreement, or instrument to which either Poster is a
party or by which Poster is bound.
7.2 DISCLOSURES. No representation or warranty made by Poster
herein, or in any certificate or document furnished or delivered by Poster to
the other parties contains or will contain any untrue statement of a material
fact or omits or will omit any material fact necessary to make the statements
contained herein or therein not misleading.
7.3 SALE OF STOCK. There is no prearranged plan by Poster to
sell, exchange, or otherwise dispose of any of the common stock of
Travelscape received in the Reorganization.
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7.4 STOCK VALUE. The fair market value of the Travelscape stock
received by Poster pursuant to SECTIONS 1.1 and 1.2 hereof is approximately
equal to the fair market value of the LVRS and PTS stock exchanged therefore.
7.5 EXPENSES. Poster will pay his expenses incurred in the
Reorganization.
7.6 NO PREARRANGED PLAN. There is no plan or intention by Poster
to cause LVRS, TS or PTS to (i) issue additional shares of their stock after
the Reorganization that would result in Travelscape losing control of LVRS,
TS or PTS within the meaning of Section 368(c)(1) of the Code; (ii) redeem
any of their outstanding stock after the Reorganization; or (iii) liquidate,
merge with any other corporation, or sell or otherwise dispose of their
assets after the Reorganization, except in the ordinary course of business.
8. REPRESENTATIONS AND WARRANTIES OF BREITLING. Breitling represents
and warrants to LVRS, TS, PTS, Travelscape, Poster, Fertitta and Marquis, as
of the date hereof and as of the Closing, that:
8.1 NO VIOLATION. Neither the execution and delivery by Breitling
of this Agreement, nor the performance of his obligations hereunder or the
consummation of the transactions contemplated hereby, will constitute or,
with the giving of notice or the passage of time or both, would constitute a
violation of or would conflict with or result in any breach of or default
under any of the terms, conditions, or provisions or any judgement, law,
regulation, contract, agreement, or instrument to which either Breitling is a
party or by which Breitling is bound.
8.2 DISCLOSURES. No representation or warranty made by Breitling
herein, or in any certificate or document furnished or delivered by Breitling
to the other parties contains or will contain any untrue statement of a
material fact or omits or will omit any material fact necessary to make the
statements contained herein or therein not misleading.
8.3 SALE OF STOCK. There is no prearranged plan by Breitling to
sell, exchange, or otherwise dispose of any of the common stock of
Travelscape received in the Reorganization.
8.4 STOCK VALUE. The fair market value of the Travelscape stock
received by Breitling pursuant to SECTIONS 1.1 and 1.2 hereof is
approximately equal to the fair market value of the TS and PTS stock
exchanged therefore.
8.5 EXPENSES. Breitling will pay his expenses incurred in the
Reorganization.
8.6 NO PREARRANGED PLAN. There is no plan or intention by
Breitling to cause LVRS, TS or PTS to (i) issue additional shares of their
stock after the Reorganization that would result in Travelscape losing
control of LVRS, TS or PTS within the meaning of Section 368(c)(1) of the
Code; (ii) redeem any of their outstanding stock after the Reorganization; or
(iii) liquidate, merge with any other corporation, or sell or otherwise
dispose of their assets after the Reorganization, except in the ordinary
course of business.
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9. REPRESENTATIONS AND WARRANTIES OF FERTITTA. Fertitta represents
and warrants to LVRS, TS, PTS, Breitling, Poster and Marquis, as of the date
hereof and as of the Closing, that:
9.1 NO VIOLATION. Neither the execution and delivery by Fertitta
of this Agreement, nor the performance of Fertitta's obligations hereunder or
the consummation of the transactions contemplated hereby, will constitute or,
with the giving of notice or the passage of time or both, would constitute a
violation of or would conflict with or result in any breach of or default
under any of the terms, conditions, or provisions or any judgement, law,
regulation, contract, agreement, or instrument to which either Fertitta is a
party or by which Fertitta is bound.
9.2 DISCLOSURES. No representation or warranty made by Fertitta
herein, or in any certificate or document furnished or delivered by Fertitta
to the other parties contains or will contain any untrue statement of a
material fact or omits or will omit any material fact necessary to make the
statements contained herein or therein not misleading.
9.3 SALE OF STOCK. There is no prearranged plan by Fertitta to
sell, exchange, or otherwise dispose of any of the common stock of
Travelscape received in the Reorganization.
9.4 STOCK VALUE. The fair market value of the Travelscape stock
received by Fertitta pursuant to SECTION 1.1 hereof is approximately equal to
the fair market value of the TS stock exchanged therefore.
9.5 EXPENSES. Fertitta will pay Fertitta's expenses incurred in
the Reorganization.
9.6 NO PREARRANGED PLAN. There is no plan or intention by
Fertitta to cause LVRS, TS or PTS to (i) issue additional shares of their
stock after the Reorganization that would result in Travelscape losing
control of LVRS, TS or PTS within the meaning of Section 368(c)(1) of the
Code; (ii) redeem any of their outstanding stock after the Reorganization; or
(iii) liquidate, merge with any other corporation, or sell or otherwise
dispose of their assets after the Reorganization, except in the ordinary
course of business.
10. REPRESENTATIONS AND WARRANTIES OF MARQUIS. Marquis represents and
warrants to LVRS, TS, PTS, Travelscape, Breitling, Fertitta and Poster, as of
the date hereof and as of the Closing, that:
10.1 NO VIOLATION. Neither the execution and delivery by Marquis
of this Agreement, nor the performance of his obligations hereunder or the
consummation of the transactions contemplated hereby, will constitute or,
with the giving of notice or the passage of time or both, would constitute a
violation of or would conflict with or result in any breach of or default
under any of the terms, conditions, or provisions or any judgement, law,
regulation, contract, agreement, or instrument to which either Marquis is a
party, or by which Marquis is bound.
10.2 DISCLOSURES. No representation or warranty made by Marquis
herein, or in any certificate or document furnished or delivered by Marquis
to the other parties contains or will contain any untrue statement of a
material fact or omits or will omit any material fact necessary to make the
statements contained herein or therein not misleading.
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10.3 SALE OF STOCK. There is no prearranged plan by Marquis to
sell, exchange, or otherwise dispose of any of the common stock of
Travelscape received in the Reorganization.
10.4 STOCK VALUE. The fair market value of the Travelscape stock
received by Marquis pursuant to SECTION 1.1 hereof is approximately equal to
the fair market value of the TS stock exchanged therefore.
10.5 EXPENSES. Marquis will pay his expenses incurred in the
Reorganization.
10.6 NO PREARRANGED PLAN. There is no plan or intention by Marquis
to cause LVRS, TS or PTS to (i) issue additional shares of their stock after
the Reorganization that would result in Travelscape losing control of LVRS,
TS or PTS within the meaning of Section 368(c)(1) of the Code; (ii) redeem
any of their outstanding stock after the Reorganization; or (iii) liquidate,
merge with any other corporation, or sell or otherwise dispose of their
assets after the Reorganization, except in the ordinary course of business.
11. CONDITIONS OF CLOSING. The obligations of each party to consummate
the contemplated transactions hereunder are subject to the satisfaction of
all of the following conditions as of the time of the Closing, except those
which are waived in writing by such party:
11.1 the representations and warranties set forth herein shall be
true and complete as of the time of the Closing; and
11.2 all documents referred to herein which are required to be
delivered, or to be executed and delivered by other parties shall be
delivered or executed and delivered, as the case may be, at the Closing.
12. COVENANTS. After the Closing, Poster, Breitling, Fertitta and
Marquis hereby covenant to cause the Board of Directors and stockholders of
Travelscape to adopt and ratify the TS 1998 Stock Plan as the Stock Plan of
Travelscape until such time as such plan may be amended or terminated by
Travelscape.
13. SURVIVAL. The representations, and warranties set forth herein
shall not merge into any assignment or other instrument of transfer executed
and delivered at the Closing. Instead, all covenants, representations and
warranties set forth herein shall survive the Closing and shall continue in
full force and effect until the applicable statutes of limitations thereon
shall have expired.
14. MISCELLANEOUS.
14.1 NOTICES. Any notice or other communication ("Notice")
required or permitted under this Agreement shall be in writing and either
delivered personally or sent by facsimile, overnight delivery, express mail,
or certified or registered mail, postage prepaid, return receipt requested.
A Notice delivered personally shall be deemed given only if acknowledged in
writing by the person to whom it is given. A Notice sent by facsimile shall
be deemed given when transmitted, provided that confirmation of that
transmission was received. A Notice sent by overnight delivery or express
mail shall be deemed given twenty-four (24) hours after having been sent. A
Notice that is sent by certified mail or registered mail shall be deemed
given forty-eight (48) hours after it is
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mailed. If any time period in this Agreement commences upon the delivery of
Notice to any one or more parties, the time period shall commence only when
all of the required Notices have been deemed given.
14.2 GOVERNING LAW. The laws of the State of Delaware shall govern
the validity and construction of this Agreement, without regard to the
principles of conflicts of laws.
14.3 CONSENT TO JURISDICTION. The parties hereby submit to the
jurisdiction and venue of the Courts of the State of Delaware.
14.4 SEVERABILITY. A ruling by any court that one or more of the
provisions contained in this Agreement is invalid, illegal or unenforceable
in any respect shall not affect any other provision of this Agreement.
Thereafter, this Agreement shall be construed as if the invalid, illegal, or
unenforceable provision had been amended to the extent necessary to be
enforceable within the jurisdiction of the court making the ruling.
14.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original. In that event, in
proving this Agreement it shall only be necessary to produce or account for
the counterpart signed by the party against whom the proof is being presented.
14.6 HEADINGS. The Section and Subsection headings have been
included for convenience only, are not part of this Agreement and shall not
be taken as an interpretation of any provision hereof.
14.7 BINDING EFFECT. This Agreement shall inure to the benefit of,
and shall be binding upon each corporate party and its successors and assigns
and the individual parties, their respective personal representatives,
successors and assigns.
14.8 AMENDMENTS AND MODIFICATIONS. This Agreement may be amended,
waived, changed, modified or discharged only by an Agreement in writing
signed by all of the parties.
14.9 INTEGRATION. This Agreement represents the parties' final
understanding as to all matters included herein, and supersedes all prior
written or oral agreements of the parties concerning matters covered herein.
14.10 WAIVER OF BREACHES. Failure to insist upon strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of that term, Covenant or condition or of any other term,
covenant or condition of this Agreement. Any waiver or relinquishment of any
right or power hereunder at any one or more times shall not be deemed a
waiver or relinquishment of that right or power at any other time.
14.11 WAIVER OF RIGHT TO JURY TRIAL. EACH PARTY TO THIS
AGREEMENT WAIVES ITS OR HIS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
BROUGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT.
14.12 BACKGROUND. The Background is a part of this Agreement.
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14.13 FURTHER ASSURANCES. The parties shall execute and deliver
or cause to be executed and delivered such further instruments and documents
and shall take such other action as may be reasonably required to more
effectively carry out the terms and provisions of this Agreement.
14.14 NO THIRD PARTY BENEFICIARY. Nothing in this Agreement
shall be deemed to be for the benefit of any third parties.
IN WITNESS WHEREOF, the parties have executed this Agreement, under
seal, the day and year first above written.
WITNESS/ATTEST: LAS VEGAS RESERVATION SYSTEMS, INC.
/s/ Donna L. Scofield By: /s/ Michael Reichartz
--------------------- -----------------------------------
Michael Reichartz, President
TRAVELSCAPE.COM, INC. (NEVADA)
/s/ Donna L. Scofield By: /s/ Timothy N. Poster
--------------------- -----------------------------------
Timothy N. Poster, President
PROFESSIONAL TRAVEL SERVICES, INC.
/s/ Donna L. Scofield By: /s/ Thomas C. Breitling
--------------------- -----------------------------------
Thomas C. Breitling, President
TRAVELSCAPE.COM, INC. (DELAWARE)
/s/ Donna L. Scofield By: /s/ Timothy N. Poster
--------------------- -----------------------------------
Timothy N. Poster, President
/s/ Donna L. Scofield By: /s/ Thomas C. Breitling
--------------------- -----------------------------------
Thomas C. Breitling
/s/ Donna L. Scofield By: /s/ Timothy N. Poster
--------------------- -----------------------------------
Timothy N. Poster
/s/ Donna L. Scofield By: /s/ Lorenzo J. Fertitta
--------------------- -----------------------------------
Lorenzo J. Fertitta
/s/ Donna L. Scofield By: /s/ Jeffrey A. Marquis
--------------------- -----------------------------------
Jeffrey A. Marquis
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TRAVELSCAPE.COM, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("AGREEMENT") is effective as of
___________, 1999, by and between Travelscape.com, Inc., a Delaware
corporation (the "COMPANY"), and ____________ ("INDEMNITEE").
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve the Company and
its related entities;
WHEREAS, in order to induce Indemnitee to continue to provide
services to the Company, the Company wishes to provide for the
indemnification of, and the advancement of expenses to, Indemnitee to the
maximum extent permitted by law;
WHEREAS, the Company and Indemnitee recognize the continued
difficulty in obtaining liability insurance for the Company's directors,
officers, employees, agents and fiduciaries, the significant increases in the
cost of such insurance and the general reductions in the coverage of such
insurance;
WHEREAS, the Company and Indemnitee further recognize the
substantial increase in corporate litigation in general, subjecting
directors, officers, employees, agents and fiduciaries to expensive
litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited; and
WHEREAS, in view of the considerations set forth above, the Company
desires that Indemnitee shall be indemnified and advanced expenses by the
Company as set forth herein;
NOW, THEREFORE, the Company and Indemnitee hereby agree as set
forth below.
1. CERTAIN DEFINITIONS.
(a) "CHANGE IN CONTROL" shall mean, and shall be deemed to have
occurred if, on or after the date of this Agreement, (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company acting in such
capacity or a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of stock
of the Company, becomes the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the Company
representing more than 50% of the total voting power represented by the
Company's then outstanding Voting Securities (as defined below), (ii) during
any period of two consecutive years, individuals who at the beginning
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of such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election
by the Company's stockholders was approved by a vote of at least two thirds
(2/3) of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority
thereof, or (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation other than a merger
or consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series
of related transactions) all or substantially all of the Company's assets.
(b) "CLAIM" shall mean with respect to a Covered Event (as defined
below): any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the
institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether civil, criminal, administrative, investigative
or other.
(c) References to the "COMPANY" shall include, in addition to
Travelscape.com, Inc., any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger to which
Travelscape.com, Inc. (or any of its wholly owned subsidiaries) is a party
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees, agents or
fiduciaries, so that if Indemnitee is or was a director, officer, employee,
agent or fiduciary of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee,
agent or fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, Indemnitee shall stand in
the same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with respect to
such constituent corporation if its separate existence had continued.
(d) "COVERED EVENT" shall mean any event or occurrence related to
the fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any subsidiary of the Company, or is or was
serving at the request of the Company as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action or inaction on the part of
Indemnitee while serving in such capacity.
(e) "EXPENSES" shall mean any and all expenses (including
attorneys' fees and all other costs, expenses and obligations incurred in
connection with investigating, defending, being a witness in or participating
in, including on appeal, or preparing to defend, to be a witness in or to
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participate in, any action, suit, proceeding, alternative dispute resolution
mechanism, hearing, inquiry or investigation), judgments, fines, penalties
and amounts paid in settlement (if such settlement is approved in advance by
the Company, which approval shall not be unreasonably withheld), actually and
reasonably incurred, of any Claim and any federal, state, local or foreign
taxes imposed on the Indemnitee as a result of the actual or deemed receipt
of any payments under this Agreement.
(f) "EXPENSE ADVANCE" shall mean a payment to Indemnitee pursuant
to Section 3 of Expenses in advance of the settlement of or final judgement
in any action, suit, proceeding or alternative dispute resolution mechanism,
hearing, inquiry or investigation which constitutes a Claim.
(g) "INDEPENDENT LEGAL COUNSEL" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Company or Indemnitee
within the last three years (other than with respect to matters concerning
the rights of Indemnitee under this Agreement, or of other indemnitees under
similar indemnity agreements).
(h) References to "OTHER ENTERPRISES" shall include employee
benefit plans; references to "FINES" shall include any excise taxes assessed
on Indemnitee with respect to an employee benefit plan; and references to
"SERVING AT THE REQUEST OF THE COMPANY" shall include any service as a
director, officer, employee, agent or fiduciary of the Company which imposes
duties on, or involves services by, such director, officer, employee, agent
or fiduciary with respect to an employee benefit plan, its participants or
its beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner "NOT OPPOSED TO THE BEST INTERESTS OF THE COMPANY" as
referred to in this Agreement.
(i) "REVIEWING PARTY" shall mean, subject to the provisions of
Section 2(d), any person or body appointed by the Board of Directors in
accordance with applicable law to review the Company's obligations hereunder
and under applicable law, which may include a member or members of the
Company's Board of Directors, Independent Legal Counsel or any other person
or body not a party to the particular Claim for which Indemnitee is seeking
indemnification
(j) "SECTION" refers to a section of this Agreement unless
otherwise indicated.
(k) "VOTING SECURITIES" shall mean any securities of the Company
that vote generally in the election of directors.
2. INDEMNIFICATION.
(a) INDEMNIFICATION OF EXPENSES. Subject to the provisions of
Section 2(b) below, the Company shall indemnify Indemnitee for Expenses to
the fullest extent permitted by law if
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Indemnitee was or is or becomes a party to or witness or other participant
in, or is threatened to be made a party to or witness or other participant
in, any Claim (whether by reason of or arising in part out of a Covered
Event), including all interest, assessments and other charges paid or payable
in connection with or in respect of such Expenses.
(b) REVIEW OF INDEMNIFICATION OBLIGATIONS. Notwithstanding the
foregoing, in the event any Reviewing Party shall have determined (in a
written opinion, in any case in which Independent Legal Counsel is the
Reviewing Party) that Indemnitee is not entitled to be indemnified hereunder
under applicable law, (i) the Company shall have no further obligation under
Section 2(a) to make any payments to Indemnitee not made prior to such
determination by such Reviewing Party, and (ii) the Company shall be entitled
to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company)
for all Expenses theretofore paid in indemnifying Indemnitee; PROVIDED,
HOWEVER, that if Indemnitee has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee is entitled to be indemnified hereunder under applicable law,
any determination made by any Reviewing Party that Indemnitee is not entitled
to be indemnified hereunder under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any Expenses
theretofore paid in indemnifying Indemnitee until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). Indemnitee's obligation to
reimburse the Company for any Expenses shall be unsecured and no interest
shall be charged thereon.
(c) INDEMNITEE RIGHTS ON UNFAVORABLE DETERMINATION; BINDING
EFFECT. If any Reviewing Party determines that Indemnitee substantively is
not entitled to be indemnified hereunder in whole or in part under applicable
law, Indemnitee shall have the right to commence litigation seeking an
initial determination by the court or challenging any such determination by
such Reviewing Party or any aspect thereof, including the legal or factual
bases therefor, and, subject to the provisions of Section 15 hereof, the
Company hereby consents to service of process and to appear in any such
proceeding. Absent such litigation, any determination by any Reviewing Party
shall be conclusive and binding on the Company and Indemnitee.
(d) SELECTION OF REVIEWING PARTY; CHANGE IN CONTROL. If there has
not been a Change in Control, any Reviewing Party shall be selected by the
Board of Directors, and if there has been such a Change in Control (other
than a Change in Control which has been approved by a majority of the
Company's Board of Directors who were directors immediately prior to such
Change in Control), any Reviewing Party with respect to all matters
thereafter arising concerning the rights of Indemnitee to indemnification of
Expenses under this Agreement or any other agreement or under the Company's
Certificate of Incorporation, as may be amended from time to time, (the
"CERTIFICATE") or Bylaws as now or hereafter in effect (the "BYLAWS"), or
under any other applicable law, if desired by Indemnitee, shall be
Independent Legal Counsel selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld). Such counsel, among
other things, shall render its written opinion to the Company and Indemnitee
as to whether and to what extent Indemnitee would be entitled to be
indemnified hereunder under applicable law
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and the Company agrees to abide by such opinion. The Company agrees to pay
the reasonable fees of the Independent Legal Counsel referred to above and to
indemnify fully such counsel against any and all expenses (including
attorneys' fees), claims, liabilities and damages arising out of or relating
to this Agreement or its engagement pursuant hereto. Notwithstanding any
other provision of this Agreement, the Company shall not be required to pay
Expenses of more than one Independent Legal Counsel in connection with all
matters concerning a single Indemnitee, and such Independent Legal Counsel
shall be the Independent Legal Counsel for any or all other Indemnitees
unless (i) the Company otherwise determines or (ii) any Indemnitee shall
provide a written statement setting forth in detail a reasonable objection to
such Independent Legal Counsel representing other Indemnitees.
(e) MANDATORY PAYMENT OF EXPENSES. Notwithstanding any other
provision of this Agreement other than Section 10 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
Claim, Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection therewith.
3. EXPENSE ADVANCES.
(a) OBLIGATION TO MAKE EXPENSE ADVANCES. The Company shall make
Expense Advances to Indemnitee upon receipt of a written undertaking by or on
behalf of the Indemnitee to repay such amounts if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified therefor by
the Company.
(b) FORM OF UNDERTAKING. Any written undertaking by the
Indemnitee to repay any Expense Advances hereunder shall be unsecured and no
interest shall be charged thereon.
(c) DETERMINATION OF REASONABLE EXPENSE ADVANCES. The parties
agree that for the purposes of any Expense Advance for which Indemnitee has
made written demand to the Company in accordance with this Agreement, all
Expenses included in such Expense Advance that are certified by affidavit of
Indemnitee's counsel as being reasonable shall be presumed conclusively to be
reasonable.
4. PROCEDURES FOR INDEMNIFICATION AND EXPENSE ADVANCES.
(a) TIMING OF PAYMENTS. All payments of Expenses (including
without limitation Expense Advances) by the Company to the Indemnitee
pursuant to this Agreement shall be made to the fullest extent permitted by
law as soon as practicable after written demand by Indemnitee therefor is
presented to the Company, but in no event later than forty-five (45) business
days after such written demand by Indemnitee is presented to the Company,
except in the case of Expense Advances, which shall be made no later than
twenty (20) business days after such written demand by Indemnitee is
presented to the Company.
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(b) NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall, as a
condition precedent to Indemnitee's right to be indemnified or Indemnitee's
right to receive Expense Advances under this Agreement, give the Company
notice in writing as soon as practicable of any Claim made against Indemnitee
for which indemnification will or could be sought under this Agreement.
Notice to the Company shall be directed to the Chief Executive Officer of the
Company at the address shown on the signature page of this Agreement (or such
other address as the Company shall designate in writing to Indemnitee). In
addition, Indemnitee shall give the Company such information and cooperation
as it may reasonably require and as shall be within Indemnitee's power.
(c) NO PRESUMPTIONS; BURDEN OF PROOF. For purposes of this
Agreement, the termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of
NOLO CONTENDERE, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by this Agreement or applicable law. In addition, neither the
failure of any Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by any Reviewing Party that Indemnitee
has not met such standard of conduct or did not have such belief, prior to
the commencement of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified under this Agreement or
applicable law, shall be a defense to Indemnitee's claim or create a
presumption that Indemnitee has not met any particular standard of conduct or
did not have any particular belief. In connection with any determination by
any Reviewing Party or otherwise as to whether the Indemnitee is entitled to
be indemnified hereunder, the burden of proof shall be on the Company to
establish that Indemnitee is not so entitled.
(d) NOTICE TO INSURERS. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 4(b) hereof, the Company
has liability insurance in effect which may cover such Claim, the Company
shall give prompt notice of the commencement of such Claim to the insurers in
accordance with the procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result
of such Claim in accordance with the terms of such policies.
(e) SELECTION OF COUNSEL. In the event the Company shall be
obligated hereunder to provide indemnification for or make any Expense
Advances with respect to the Expenses of any Claim, the Company, if
appropriate, shall be entitled to assume the defense of such Claim with
counsel approved by Indemnitee (which approval shall not be unreasonably
withheld) upon the delivery to Indemnitee of written notice of the Company's
election to do so. After delivery of such notice, approval of such counsel
by Indemnitee and the retention of such counsel by the Company, the Company
will not be liable to Indemnitee under this Agreement for any fees or
expenses of separate counsel subsequently employed by or on behalf of
Indemnitee with respect to the same Claim; PROVIDED, HOWEVER, that (i)
Indemnitee shall have the right to employ Indemnitee's separate
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counsel in any such Claim at Indemnitee's expense and (ii) if (A) the
employment of separate counsel by Indemnitee has been previously authorized
by the Company, (B) Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and Indemnitee in the conduct
of any such defense, or (C) the Company shall not continue to retain such
counsel to defend such Claim, then the fees and expenses of Indemnitee's
separate counsel shall be Expenses for which Indemnitee may receive
indemnification or Expense Advances hereunder.
5. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) SCOPE. The Company hereby agrees to indemnify the Indemnitee
to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of
this Agreement, the Certificate, the Bylaws or by statute. In the event of
any change after the date of this Agreement in any applicable law, statute or
rule which expands the right of a Delaware corporation to indemnify a member
of its board of directors or an officer, employee, agent or fiduciary, it is
the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits afforded by such change. In the event of any
change in any applicable law, statute or rule which narrows the right of a
Delaware corporation to indemnify a member of its board of directors or an
officer, employee, agent or fiduciary, such change, to the extent not
otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties' rights and
obligations hereunder except as set forth in Section 10(a) hereof.
(b) NONEXCLUSIVITY. The indemnification and the payment of
Expense Advances provided by this Agreement shall be in addition to any
rights to which Indemnitee may be entitled under the Certificate, the Bylaws,
any other agreement, any vote of stockholders or disinterested directors, the
General Corporation Law of the State of Delaware ("DELAWARE LAWS"), or
otherwise. The indemnification and the payment of Expense Advances provided
under this Agreement shall continue as to Indemnitee for any action taken or
not taken while serving in an indemnified capacity even though subsequent
thereto Indemnitee may have ceased to serve in such capacity.
6. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision of the Certificate, Bylaws or
otherwise) of the amounts otherwise payable hereunder.
7. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses incurred in connection with any Claim, but not, however,
for all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses to which Indemnitee is entitled.
8. MUTUAL ACKNOWLEDGEMENT. Both the Company and Indemnitee
acknowledge that in certain instances, federal law or applicable public
policy may prohibit the Company from indemnifying its directors, officers,
employees, agents or fiduciaries under this Agreement or
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otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities
and Exchange Commission to submit the question of indemnification to a court
in certain circumstances for a determination of the Company's right under
public policy to indemnify Indemnitee.
9. LIABILITY INSURANCE. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or
fiduciaries, Indemnitee shall be covered by such policies in such a manner as
to provide Indemnitee the same rights and benefits as are provided to the
most favorably insured of the Company's directors, if Indemnitee is a
director; or of the Company's officers, if Indemnitee is not a director of
the Company but is an officer; or of the Company's key employees, agents or
fiduciaries, if Indemnitee is not an officer or director but is a key
employee, agent or fiduciary.
10. EXCEPTIONS. Notwithstanding any other provision of this Agreement,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) EXCLUDED ACTION OR OMISSIONS. To indemnify Indemnitee for
Expenses resulting from acts, omissions or transactions for which Indemnitee
is prohibited from receiving indemnification under this Agreement or
applicable law; PROVIDED, HOWEVER, that notwithstanding any limitation set
forth in this Section 10(a) regarding the Company's obligation to provide
indemnification, Indemnitee shall be entitled under Section 3 to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or lapsed) that Indemnitee has engaged in acts, omissions or transactions for
which Indemnitee is prohibited from receiving indemnification under this
Agreement or applicable law.
(b) CLAIMS INITIATED BY INDEMNITEE. To indemnify or make Expense
Advances to Indemnitee with respect to Claims initiated or brought
voluntarily by Indemnitee and not by way of defense, counterclaim or
crossclaim, except (i) with respect to actions or proceedings brought to
establish or enforce a right to indemnification under this Agreement or any
other agreement or insurance policy or under the Certificate or Bylaws
relating to Claims for Covered Events, (ii) in specific cases if the Board of
Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under Section 145 of Delaware Law (relating to
indemnification of officers, directors, employees and agents; and insurance),
regardless of whether Indemnitee ultimately is determined to be entitled to
such indemnification or insurance recovery, as the case may be.
(c) LACK OF GOOD FAITH. To indemnify Indemnitee for any Expenses
incurred by the Indemnitee with respect to any action instituted (i) by
Indemnitee to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that
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each of the material assertions made by the Indemnitee as a basis for such
action was not made in good faith or was frivolous, or (ii) by or in the name
of the Company to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each
of the material defenses asserted by Indemnitee in such action was made in
bad faith or was frivolous.
(d) CLAIMS UNDER SECTION 16(B). To indemnify Indemnitee for
expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute; PROVIDED,
HOWEVER, that notwithstanding any limitation set forth in this Section 10(d)
regarding the Company's obligation to provide indemnification, Indemnitee
shall be entitled under Section 3 to receive Expense Advances hereunder with
respect to any such Claim unless and until a court having jurisdiction over
the Claim shall have made a final judicial determination (as to which all
rights of appeal therefrom have been exhausted or lapsed) that Indemnitee has
violated said statute.
11. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns (including any direct or
indirect successor by merger or consolidation), spouses, heirs and personal
and legal representatives. The Company shall require and cause any successor
(whether direct or indirect, and whether by merger, consolidation or
otherwise) to the business of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as a director, officer, employee, agent or fiduciary (as
applicable) of the Company or of any other enterprise at the Company's
request.
12. EXPENSES INCURRED IN ACTION RELATING TO ENFORCEMENT OR
INTERPRETATION. In the event that any action is instituted by Indemnitee
under this Agreement or under any liability insurance policies maintained by
the Company to enforce or interpret any of the terms hereof or thereof,
Indemnitee shall be entitled to be indemnified for all Expenses incurred by
Indemnitee with respect to such action (including without limitation
attorneys' fees), regardless of whether Indemnitee is ultimately successful
in such action, unless as a part of such action a court having jurisdiction
over such action makes a final judicial determination (as to which all rights
of appeal therefrom have been exhausted or lapsed) that each of the material
assertions made by Indemnitee as a basis for such action was not made in good
faith or was frivolous; PROVIDED, HOWEVER, that until such final judicial
determination is made, Indemnitee shall be entitled under Section 3 to
receive payment of Expense Advances hereunder with respect to such action.
In the event of an action instituted by or in the name of the Company under
this Agreement to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be indemnified for all Expenses incurred by
Indemnitee in defense of such action (including without limitation costs and
expenses incurred with respect to Indemnitee's counterclaims and cross-claims
made in such action), unless as a part of such action a court having
jurisdiction over such action makes a final judicial determination (as to
which all rights of appeal therefrom have been exhausted or lapsed) that each
of the material defenses asserted by Indemnitee in such action was made in
bad faith or was frivolous; PROVIDED, HOWEVER,
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that until such final judicial determination is made, Indemnitee shall be
entitled under Section 3 to receive payment of Expense Advances hereunder
with respect to such action.
13. NOTICE. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i)
if delivered by hand and signed for by the party addressed, on the date of
such delivery, or (ii) if mailed by domestic certified or registered mail
with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of
this Agreement or as subsequently modified by written notice.
14. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be commenced, prosecuted and continued
only in the Court of Chancery of the State of Delaware in and for New Castle
County, which shall be the exclusive and only proper forum for adjudicating
such a claim.
15. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all documents required
and shall do all acts that may be necessary to secure such rights and to
enable the Company effectively to bring suit to enforce such rights.
16. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company or any of its subsidiaries or affiliated entities.
17. GOVERNING LAW. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware. The parties hereto agree to submit
to the jurisdiction of the federal and state courts of the State of Delaware
with respect to the breach or interpretation of this Agreement or the
enforcement of any and all rights, duties, liabilities, obligations, powers,
and other relations between the parties arising under this Agreement.
18. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding the matters set
forth herein. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon the successors,
assigns, heirs, executors and administrators of the parties hereto.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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20. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
effective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
21. AMENDMENTS AND WAIVERS. Any term hereof may be amended and the
observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Indemnitee. Any amendment or waiver
so effected shall be binding upon all Indemnitees.
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
TRAVELSCAPE.COM, INC.
By:
------------------------------
Name:
------------------------------
Title:
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Address: Travelscape.com, Inc.
8951 W. Sahara Ave.
Las Vegas, Nevada 89117-5826
AGREED TO AND ACCEPTED BY:
INDEMNITEE
------------------------------
(signature)
Name:
-------------------------
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TRAVELSCAPE.COM, INC.
1998 STOCK PLAN
1. PURPOSES OF THE PLAN. The purposes of this Stock Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees, Directors and
Consultants and to promote the success of the Company's business. Options
granted under the Plan may be Incentive Stock Options or Nonstatutory Stock
Options, as determined by the Administrator at the time of grant. Stock
Purchase Rights may also be granted under the Plan.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "ADMINISTRATOR" means the Board or any of its Committees
as shall be administering the Plan in accordance with Section 4 hereof.
(b) "APPLICABLE LAWS" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws
of any foreign country or jurisdiction where Options or Stock Purchase Rights
are granted under the Plan.
(c) "BOARD" means the Board of Directors of the Company.
(d) "CODE" means the Internal Revenue Code of 1986, as
amended.
(e) "COMMITTEE" means a committee of Directors appointed by
the Board in accordance with Section 4 hereof.
(f) "COMMON STOCK" means the common stock of the Company.
(g) "COMPANY" means Travelscape.com, Inc., a Nevada
corporation or any successor corporation that duly adopts this Plan.
(h) "CONSULTANT" means any person who is engaged by the
Company or any Parent or Subsidiary to render consulting or advisory services
to such entity.
(i) "DIRECTOR" means a member of the Board.
(j) "EMPLOYEE" means any person, including officers and
Directors, employed by the Company or any Parent or Subsidiary of the
Company. A Service Provider shall not cease to be
<PAGE>
an Employee in the case of (i) any leave of absence approved by the Company
or (ii) transfers between locations of the Company or between the Company,
its Parent, any Subsidiary, or any successor. For purposes of Incentive
Stock Options, no such leave may exceed ninety days, unless reemployment upon
expiration of such leave is guaranteed by statute or contract. If
reemployment upon expiration of a leave of absence approved by the Company is
not so guaranteed, on the 181st day of such leave any Incentive Stock Option
held by the Optionee shall cease to be treated as an Incentive Stock Option
and shall be treated for tax purposes as a Nonstatutory Stock Option.
Neither service as a Director nor payment of a director's fee by the Company
shall, by itself, be sufficient to constitute "employment" by the Company.
(k) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
(l) "FAIR MARKET VALUE" means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any
established stock exchange or a national market system, including without
limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The
Nasdaq Stock Market, its Fair Market Value shall be the closing sales price
for such stock (or the closing bid, if no sales were reported) as quoted on
such exchange or system for the last market trading day prior to the time of
determination, as reported in THE WALL STREET JOURNAL or such other source as
the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by
a recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the high bid and low asked prices for
the Common Stock on the last market trading day prior to the day of
determination; or
(iii) In the absence of an established market
for the Common Stock, the Fair Market Value thereof shall be determined in
good faith by the Administrator.
(m) "INCENTIVE STOCK OPTION" means an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(n) "NONSTATUTORY STOCK OPTION" means an Option not intended
to qualify as an Incentive Stock Option.
(o) "OPTION" means a stock option granted pursuant to the
Plan.
(p) "OPTION AGREEMENT" means a written or electronic
agreement between the Company and an Optionee evidencing the terms and
conditions of an individual Option grant. The Option Agreement is subject to
the terms and conditions of the Plan.
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(q) "OPTION EXCHANGE PROGRAM" means a program whereby
outstanding Options are exchanged for Options with a lower exercise price.
(r) "OPTIONED STOCK" means the Common Stock subject to an
Option or a Stock Purchase Right.
(s) "OPTIONEE" means the holder of an outstanding Option or
Stock Purchase Right granted under the Plan.
(t) "PARENT" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(u) "PLAN" means this 1998 Stock Plan.
(v) "RESTRICTED STOCK" means shares of Common Stock acquired
pursuant to a grant of a Stock Purchase Right under Section 10 below.
(w) "SERVICE PROVIDER" means an Employee, Director or
Consultant.
(x) "SHARE" means a share of the Common Stock, as adjusted
in accordance with Section 12 below.
(y) "STOCK PURCHASE RIGHT" means a right to purchase Common
Stock pursuant to Section 10 below.
(z) "SUBSIDIARY" means a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Section 12 of the Plan, the maximum aggregate number of Shares which may be
subject to option and sold under the Plan is 1,500,000 Shares. The Shares
may be authorized but unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes
unexercisable without having been exercised in full, or is surrendered
pursuant to an Option Exchange Program, the unpurchased Shares which were
subject thereto shall become available for future grant or sale under the
Plan (unless the Plan has terminated). However, Shares that have actually
been issued under the Plan, upon exercise of either an Option or Stock
Purchase Right, shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that if Shares of
Restricted Stock are repurchased by the Company at their original purchase
price, such Shares shall become available for future grant under the Plan.
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4. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Board or a
Committee appointed by the Board, which Committee shall be constituted to
comply with Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions
of the Plan and, in the case of a Committee, the specific duties delegated by
the Board to such Committee, and subject to the approval of any relevant
authorities, the Administrator shall have the authority in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom
Options and Stock Purchase Rights may from time to time be granted hereunder;
(iii) to determine the number of Shares to be
covered by each such award granted hereunder;
(iv) to approve forms of agreement for use
under the Plan;
(v) to determine the terms and conditions, of
any Option or Stock Purchase Right granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or
times when Options or Stock Purchase Rights may be exercised (which may be
based on performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation regarding any
Option or Stock Purchase Right of the Common Stock relating thereto, based in
each case on such factors as the Administrator, in its sole discretion, shall
determine;
(vi) to determine whether and under what
circumstances an Option may be settled in cash under subsection 9(e) instead
of Common Stock;
(vii) to reduce the exercise price of any Option
to the then current Fair Market Value if the Fair Market Value of the Common
Stock covered by such Option has declined since the date the Option was
granted;
(viii) to initiate an Option Exchange Program;
(ix) to prescribe, amend and rescind rules and
regulations relating to the Plan, including rules and regulations relating to
sub-plans established for the purpose of qualifying for preferred tax
treatment under foreign tax laws;
(x) to allow Optionees to satisfy withholding
tax obligations by electing to have the Company withhold from the Shares to
be issued upon exercise of an Option or Stock Purchase Right that number of
Shares having a Fair Market Value equal to the amount required to be
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withheld. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be
determined. All elections by Optionees to have Shares withheld for this
purpose shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable; and
(xi) to construe and interpret the terms of the
Plan and awards granted pursuant to the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees.
5. ELIGIBILITY.
(a) Nonstatutory Stock Options and Stock Purchase Rights may
be granted to Service Providers. Incentive Stock Options may be granted only
to Employees.
(b) Each Option shall be designated in the Option Agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair
Market Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year
(under all plans of the Company and any Parent or Subsidiary) exceeds
$100,000, such Options shall be treated as Nonstatutory Stock Options. For
purposes of this Section 5(b), Incentive Stock Options shall be taken into
account in the order in which they were granted. The Fair Market Value of
the Shares shall be determined as of the time the Option with respect to such
Shares is granted.
(c) Neither the Plan nor any Option or Stock Purchase Right
shall confer upon any Optionee any right with respect to continuing the
Optionee's relationship as a Service Provider with the Company, nor shall it
interfere in any way with his or her right or the Company's right to
terminate such relationship at any time, with or without cause.
6. TERM OF PLAN. Subject to Section 18 of the Plan, the Plan
shall become effective upon its adoption by the Board. It shall continue in
effect for a term of ten (10) years unless sooner terminated under Section 14
of the Plan.
7. TERM OF OPTION. The term of each Option shall be stated in the
Option Agreement; provided, however, that the term shall be no more than ten
(10) years from the date of grant thereof. In the case of an Incentive Stock
Option granted to an Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Option shall be five (5) years from the date of grant or such shorter term as
may be provided in the Option Agreement.
-5-
<PAGE>
8. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) The per share exercise price for the Shares to be issued
upon exercise of an Option shall be such price as is determined by the
Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the
time of grant of such Option, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the exercise price shall be no less than 110% of the
Fair Market Value per Share on the date of grant.
(B) granted to any other Employee, the
per Share exercise price shall be no less than 100% of the Fair Market Value
per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock
Option, the per Share exercise price shall be determined by the Administrator.
(iii) Notwithstanding the foregoing, Options may
be granted with a per Share exercise price other than as required above
pursuant to a merger or other corporate transaction.
(b) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be
determined by the Administrator (and, in the case of an Incentive Stock
Option, shall be determined at the time of grant). Such consideration may
consist of (1) cash, (2) check, (3) promissory note, (4) other Shares which
(x) in the case of Shares acquired upon exercise of an Option, have been
owned by the Optionee for more than six months on the date of surrender, and
(y) have a Fair Market Value on the date of surrender equal to the aggregate
exercise price of the Shares as to which such Option shall be exercised, (5)
consideration received by the Company under a cashless exercise program
implemented by the Company in connection with the Plan, or (6) any
combination of the foregoing methods of payment. In making its determination
as to the type of consideration to accept, the Administrator shall consider
if acceptance of such consideration may be reasonably expected to benefit the
Company.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any
Option granted hereunder shall be exercisable according to the terms hereof
at such times and under such conditions as determined by the Administrator
and set forth in the Option Agreement. Unless the Administrator provides
otherwise, vesting of Options granted hereunder shall be tolled during any
unpaid leave of absence. An Option may not be exercised for a fraction of a
Share.
-6-
<PAGE>
An Option shall be deemed exercised when the Company
receives: (i) written or electronic notice of exercise (in accordance with
the Option Agreement) from the person entitled to exercise the Option, and
(ii) full payment for the Shares with respect to which the Option is
exercised. Full payment may consist of any consideration and method of
payment authorized by the Administrator and permitted by the Option Agreement
and the Plan. Shares issued upon exercise of an Option shall be issued in
the name of the Optionee or, if requested by the Optionee, in the name of the
Optionee and his or her spouse. Until the Shares are issued (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the Shares,
notwithstanding the exercise of the Option. The Company shall issue (or
cause to be issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the record
date is prior to the date the Shares are issued, except as provided in
Section 12 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares thereafter available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which
the Option is exercised.
(b) TERMINATION OF RELATIONSHIP AS A SERVICE PROVIDER. If
an Optionee ceases to be a Service Provider, such Optionee may exercise his
or her Option within such period of time as is specified in the Option
Agreement (of at least thirty (30) days) to the extent that the Option is
vested on the date of termination (but in no event later than the expiration
of the term of the Option as set forth in the Option Agreement). In the
absence of a specified time in the Option Agreement, the Option shall remain
exercisable for three (3) months following the Optionee's termination. If,
on the date of termination, the Optionee is not vested as to his or her
entire Option, the Shares covered by the unvested portion of the Option shall
revert to the Plan. If, after termination, the Optionee does not exercise
his or her Option within the time specified by the Administrator, the Option
shall terminate, and the Shares covered by such Option shall revert to the
Plan.
(c) DISABILITY OF OPTIONEE. If an Optionee ceases to be a
Service Provider as a result of the Optionee's total and permanent
disability, as defined in Section 22(e)(3) of the Code, the Optionee may
exercise his or her Option within such period of time as is specified in the
Option Agreement to the extent the Option is vested on the date of
termination (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). In the absence of a specified
time in the Option Agreement, the Option shall remain exercisable for twelve
(12) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the
Plan. If, after termination, the Optionee does not exercise his or her
Option within the time specified herein, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(d) DEATH OF OPTIONEE. If an Optionee dies while a Service
Provider, the Option may be exercised within such period of time as is
specified in the Option Agreement (but in no event later than the expiration
of the term of such Option as set forth in the Notice of Grant), by the
-7-
<PAGE>
Optionee's estate or by a person who acquires the right to exercise the
Option by bequest or inheritance, but only to the extent that the Option is
vested on the date of death. In the absence of a specified time in the
Option Agreement, the Option shall remain exercisable for twelve (12) months
following the Optionee's termination. If, at the time of death, the Optionee
is not vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall immediately revert to the Plan. The
Option may be exercised by the executor or administrator of the Optionee's
estate or, if none, by the person(s) entitled to exercise the Option under
the Optionee's will or the laws of descent or distribution. If the Option is
not so exercised within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(e) BUYOUT PROVISIONS. The Administrator may at any time
offer to buy out for a payment in cash or Shares, an Option previously
granted, based on such terms and conditions as the Administrator shall
establish and communicate to the Optionee at the time that such offer is made.
10. STOCK PURCHASE RIGHTS.
(a) RIGHTS TO PURCHASE. Stock Purchase Rights may be issued
either alone, in addition to, or in tandem with other awards granted under
the Plan and/or cash awards made outside of the Plan. After the
Administrator determines that it will offer Stock Purchase Rights under the
Plan, it shall advise the offeree in writing or electronically of the terms,
conditions and restrictions related to the offer, including the number of
Shares that such person shall be entitled to purchase, the price to be paid,
and the time within which such person must accept such offer. The offer
shall be accepted by execution of a Restricted Stock purchase agreement in
the form determined by the Administrator.
(b) REPURCHASE OPTION. Unless the Administrator determines
otherwise, the Restricted Stock purchase agreement shall grant the Company a
repurchase option exercisable upon the voluntary or involuntary termination
of the purchaser's service with the Company for any reason (including death
or disability). The purchase price for Shares repurchased pursuant to the
Restricted Stock purchase agreement shall be the original price paid by the
purchaser and may be paid by cancellation of any indebtedness of the
purchaser to the Company. The repurchase option shall lapse at such rate as
the Administrator may determine.
(c) OTHER PROVISIONS. The Restricted Stock purchase
agreement shall contain such other terms, provisions and conditions not
inconsistent with the Plan as may be determined by the Administrator in its
sole discretion.
(d) RIGHTS AS A SHAREHOLDER. Once the Stock Purchase Right
is exercised, the purchaser shall have rights equivalent to those of a
shareholder and shall be a shareholder when his or her purchase is entered
upon the records of the duly authorized transfer agent of the Company. No
adjustment shall be made for a dividend or other right for which the record
date is prior to the date the Stock Purchase Right is exercised, except as
provided in Section 12 of the Plan.
-8-
<PAGE>
11. NON-TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS.
Unless determined otherwise by the Administrator, Options and Stock Purchase
Rights may not be sold, pledged, assigned, hypothecated, transferred, or
disposed of in any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the Optionee, only
by the Optionee. If the Administrator makes an Option or Stock Purchase
Right transferable, such Option or Stock Purchase Right shall contain such
additional terms and conditions as the Administrator deems appropriate.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER OR ASSET
SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required
action by the shareholders of the Company, the number of shares of Common
Stock covered by each outstanding Option or Stock Purchase Right, and the
number of shares of Common Stock which have been authorized for issuance
under the Plan but as to which no Options or Stock Purchase Rights have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option or Stock Purchase Right, as well as the price per
share of Common Stock covered by each such outstanding Option or Stock
Purchase Right, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in
the number of issued shares of Common Stock effected without receipt of
consideration by the Company. The conversion of any convertible securities
of the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except
as expressly provided herein, no issuance by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock subject to an Option or
Stock Purchase Right.
(b) DISSOLUTION OR LIQUIDATION. In the event of the
proposed dissolution or liquidation of the Company, the Administrator shall
notify each Optionee as soon as practicable prior to the effective date of
such proposed transaction. The Administrator in its discretion may provide
for an Optionee to have the right to exercise his or her Option until fifteen
(15) days prior to such transaction as to all of the Optioned Stock covered
thereby, including Shares as to which the Option would not otherwise be
exercisable. In addition, the Administrator may provide that any Company
repurchase option applicable to any Shares purchased upon exercise of an
Option or Stock Purchase Right shall lapse as to all such Shares, provided
the proposed dissolution or liquidation takes place at the time and in the
manner contemplated. To the extent it has not been previously exercised, an
Option or Stock Purchase Right will terminate immediately prior to the
consummation of such proposed action.
(c) MERGER OR ASSET SALE. In the event of the sale of
substantially all of the assets of the Company, or a merger of the Company with
or into another corporation, other than a merger in which the shareholders of
the Company immediately prior to the merger own a majority of the
-9-
<PAGE>
voting power of the surviving corporation following the merger, the
Administrator shall, as soon as practicable prior to the effective date of
such transaction, provide for the Optionee to have the right to exercise the
Option as to all of the Optioned Stock, including Shares that would not
otherwise be exercisable. If an Option or Stock Purchase Right becomes fully
vested and exercisable in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that the
Option or Stock Purchase Right shall be fully exercisable for a period of
fifteen (15) days from the date of such notice, and the Option or Stock
Purchase Right shall terminate upon the expiration of such period.
13. TIME OF GRANTING OPTIONS AND STOCK PURCHASE RIGHTS. The date of
grant of an Option or Stock Purchase Right shall, for all purposes, be the date
on which the Administrator makes the determination granting such Option or Stock
Purchase Right, or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Service Provider to whom an
Option or Stock Purchase Right is so granted within a reasonable time after the
date of such grant.
14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time
amend, alter, suspend or terminate the Plan.
(b) SHAREHOLDER APPROVAL. The Board shall obtain
shareholder approval of any Plan amendment to the extent necessary and
desirable to comply with Applicable Laws.
(c) EFFECT OF AMENDMENT OR TERMINATION. No amendment,
alteration, suspension or termination of the Plan shall impair the rights of
any Optionee, unless mutually agreed otherwise between the Optionee and the
Administrator, which agreement must be in writing and signed by the Optionee
and the Company. Termination of the Plan shall not affect the
Administrator's ability to exercise the powers granted to it hereunder with
respect to Options granted under the Plan prior to the date of such
termination.
15. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. Shares shall not be issued pursuant
to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares shall comply with Applicable Laws and
shall be further subject to the approval of counsel for the Company with
respect to such compliance.
(b) INVESTMENT REPRESENTATIONS. As a condition to the
exercise of an Option, the Administrator may require the person exercising
such Option to represent and warrant at the time of any such exercise that
the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required.
-10-
<PAGE>
16. INABILITY TO OBTAIN AUTHORITY. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
17. RESERVATION OF SHARES. The Company, during the term of this
Plan, shall at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
18. SHAREHOLDER APPROVAL. The Plan shall be subject to approval by
the shareholders of the Company within twelve (12) months after the date the
Plan is adopted. Such shareholder approval shall be obtained in the degree
and manner required under Applicable Laws.
-11-
<PAGE>
EXHIBIT 10.5
CONFIDENTIAL
[*]: CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
24/7 MEDIA CAMPAIGN INSERTION ORDER
- ------------------------------------------------------------------------------
ADVERTISER / AGENCY INFO
- ------------------------------------------------------------------------------
<TABLE>
<S> <C>
/X/ New Advertiser / Agency / / Existing Advertiser / Agency
- -------------------------------------------------- ------------------------------------------------------------------
Adv. / Agy. Name: System Advertising Client Name: Travelscape.com
- -------------------------------------------------- ------------------------------------------------------------------
24/7 ID # GM085 (Below must be completed if invoicing client directly)
- -------------------------------------------------- ------------------------------------------------------------------
Street Address 1: 8951 W. Sahara Ave. Street Address 1:
- -------------------------------------------------- ------------------------------------------------------------------
Street Address 2: Suite 100 Street Address 2:
- -------------------------------------------------- ------------------------------------------------------------------
City / State / Zip: Las Vegas, NV 89117 City / State / Zip:
- -------------------------------------------------- ------------------------------------------------------------------
Contact: Tim Poster Contact:
- -------------------------------------------------- ------------------------------------------------------------------
Contact email: [email protected] Contact email:
- -------------------------------------------------- ------------------------------------------------------------------
Phone: 702-792-3811 Fax: 702-735-4320 Phone: Fax:
- -------------------------------------------------- ------------------------------------------------------------------
</TABLE>
- ------------------------------------------------------------------------------
BILLING INFORMATION
- ------------------------------------------------------------------------------
Bill To: /X/ Advertiser / Agency / / Client
- ------------------------------------------------------------------------------
Special Billing Instructions:
- ----------------------------
Bill to System Advertising.
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
BUY DETAILS
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
ADVERTISER'S / AGENCY'S ORDER # (I/O #): MAPQUEST TRAVEL
- ------------------------------------------------------------------------------
<TABLE>
<S> <C>
- ---------------------------------------------------- -----------------------------------------------------------------------
Campaign Flight Dates: 11/15/98 to 11/15/99 Total Campaign Value (Gross) $[*]
- ---------------------------------------------------- -----------------------------------------------------------------------
Impressions Ordered: 110,800,000 Campaign / / IS /X/ IS NOT Subject to agency commission
- ---------------------------------------------------- -----------------------------------------------------------------------
</TABLE>
- ------------------------------------------------------------------------------
IF THIS CAMPAIGN IS NOT SUBJECT TO AGENCY COMMISSION THEN GROSS = NET
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Gross CPM: $[*]
- ------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
- --------------------------------- ---------------------------------- -----------------------------------------------------------
Gross CPC: $ Est. Click Rate: % Est. Click Rate Must Be Provided for CPC Campaigns
- --------------------------------- ---------------------------------- -----------------------------------------------------------
</TABLE>
<TABLE>
<S> <C>
- ---------------------------------------- ----------------------------------------------------------------------------------------
CPT: and/or % of Sale: % / / Transaction tracked by Imgis / / Transactions tracked by Adv.\Agy.\3rd Party*
- ---------------------------------------- ----------------------------------------------------------------------------------------
</TABLE>
- ------------------------------------------------------------------------------
*PLEASE LIST PARTIES RESPONSIBLE FOR TRACKING TRANSACTIONS IN SPECIAL
INSTRUCTIONS
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Campaign Reference Name: Travelscape--Mapquest Travel
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
CREATIVE \ BANNER DETAILS
- ------------------------------------------------------------------------------
<TABLE>
<S> <C>
- -------------------------------------------- ------------------------------------------------------------------
/X/ Creatives not available at this time Creatives must be provided no later than: 10/23/98
- -------------------------------------------- ------------------------------------------------------------------
Creative Pick-up Site:
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
- ------------ ------------- ----------------- ------------------ ---------------- -------------- -------------------------------
/X/ GIF / / HTML* / / Re-Direct / / Interstitial* / / Full Page / / Other* *Web Site Requires Enhanced Tag
- ------------ ------------- ----------------- ------------------ ---------------- -------------- -------------------------------
</TABLE>
- ------------------------------------------------------------------------------
BANNERS SPECS--MAX 12K / BUTTON SPECS--MAX 4K (MAX 4 LOOPS CZ&RIDDLER)
SUPPORTED BANNER SIZES--ADFORCE-468 X 60 / 234 X 60 / 88 X 31 CZ/RID 468 X 60 /
125 X 125 / 88 X 31 )
*INTERSTITIAL / *HTML / *OTHER--BANNERS REQUIRE A 5 DAY LEAD TIME PRIOR TO
INSERTION
SEND CREATIVES TO: ACCOUNT EXECUTIVE / SEND FULL PAGE HTML TO:
[email protected]
PLEASE REFER TO THE ORIGINAL ORDER # (I/O) WHEN SENDING CREATIVES
- ------------------------------------------------------------------------------
<PAGE>
<TABLE>
<S> <C>
- -----------------------------------------------------------------------------------------------------------
CAMPAIGN TYPE
- -----------------------------------------------------------------------------------------------------------
BUY TYPE: / / Open Inventory /X/ Guaranteed Inventory / / Site Data / / Sponsorship
- -----------------------------------------------------------------------------------------------------------
OPEN INVENTORY CAMPAIGNS ARE AUTOMATICALLY PRE-EMPTED BY GUARANTEED INVENTORY CAMPAIGNS
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
DETAILS:
/ / Network Buy (All network sites)
/ / Key Word Buy (Please list all key words in the "SPECIAL INSTRUCTIONS" field)
/X/ Site Specific Buy (Please list the desired site(s) or content units in the "SPECIAL
INSTRUCTIONS" field)
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
/ / NETWORK NICHE BUY (select Niches):
/ / NEWS/INFORMATION / / TECHNOLOGY / / BUSINESS/FINANCIAL
/ / ISP/DIRECTORY/COMMUNITY / / SPORTS / / ONLINE MAGAZINES
/ / WOMEN/FAMILY/EDUCATION / / GAMING / / AUTOMOTIVE
/ / TRAVEL/DINING / / INTERNATIONAL / / ENTERTAINMENT
/ / REAL ESTATE
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
ONLINE DEMOGRAPHICS: / / ALL (Default)
/ / Domain / / Countries / / Browser / / Internet Service Provider
/ / SIC / / Area Code / / Op. System / / Time of Day / Days Of Week
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
PLEASE PROVIDE COMPLETE DETAILS FOR EACH DEMOGRAPHIC SELECTED IN THE "SPECIAL INSTRUCTIONS" FIELD
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
CONTENT ZONE: / / Banners / / Full Page Ads / / Text Link / / Button Buy
ZONES:
/ / ALL / / Arts / / Auto / / Business / / College
/ / Computer / / Developers / / Directory / / Download / / Entertainment
/ / Free / / Games / / Home / / Kids / / Misc.
/ / New & Info / / People & Chat / / Shopping / / Travel / / Sports & Fitness
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
PLEASE LIST ALL PACKAGE COMPONENTS IN THE "SPECIAL INSTRUCTIONS" FIELD
- -----------------------------------------------------------------------------------------------------------
</TABLE>
AUTHORIZED ADVERTISER/AGENCY REP AUTHORIZED 24/7 MEDIA REP
Timothy Poster Gayle Meyers
-------------------------------- -------------------------------
Print Name Print Name
/s / Timothy Poster /s/ Gayle Meyers
-------------------------------- -------------------------------
Authorized Signature Authorized Signature
8/28/98 24/7 Rep ID #GM085
--------------------------------
Date
- --------------------------------------------------------------------------------
THIS AGREEMENT IS NOT BINDING UPON SELLER UNTIL ACCEPTED, AFTER SIGNATURE BY
AGENCY, BY SELLER (OR ITS AGENT, 24/7 MEDIA, INC.). THIS CONTRACT IS ENTERED
INTO ON THE TERMS AND CONDITIONS SET FORTH BY 24/7 MEDIA INC.(REF. ATTACHED).
PURCHASER ACKNOWLEDGES THAT IT HAS READ THE TERMS AND CONDITIONS
AND AGREES TO BE BOUND BY THEM.
- --------------------------------------------------------------------------------
PLEASE FORWARD TO: 24/7 MEDIA TRAFFIC DEPARTMENT
-2-
<PAGE>
- ------------------------------------------------------------------------------
SPECIAL INSTRUCTIONS
- ------------------------------------------------------------------------------
Deal Points--
1. Travelscape has the right to negotiate a renewal or extension of the
sponsorship prior to Mapquest entering into negotiation with any other
party for this sponsorship.
2. The term of the agreement is from 11/1/98 - 10/31/99.
3. Travelscape and Mapquest may terminate sponsorship on or after 3/31/99
upon 60 day's prior written notice.
4. Travelscape will pay 24/7 Media Inc., as representative of Mapquest,
monthly installments of $[*] per month payable on the commencement
date and on each monthly anniversary of the commencement date, totaling
$[*].
5. Travelscape advertising and creative must be submitted 10 days prior to
state date.
<TABLE>
<CAPTION>
GUARANTEED IMPRESSIONS QUARTERLY ANNUAL
- ------------------------------------------------- ----------------------- ------------------
<S> <C> <C>
ROS Banners [*] [*]
TravelPlan Banners (468x60) [*] [*]
TravelPlan Button (120x60) [*] [*]
Sponsorship Ad (73x73) [*] [*]
Home Page Spotlight [*] [*]
Newsletter Sponsorship** [*] [*]
Print n Go Promotions [*] [*]
Total Impressions: 27,700,000 110,800,000
Total Program Cost: $[*] $[*]
Program CPM: $[*] $[*]
Term: 11/1/98 - 1/31/99 11/1/98 - 10/31/99
</TABLE>
** 2 Newsletters in 1999 for approximately [*] impressions each.
<TABLE>
<S> <C> <C> <C>
- ----------------------------- ----------------------------- --------------------------- -----------------------------
Reporting Package / / Network / / Niche / / Site Specific
- ----------------------------- ----------------------------- --------------------------- -----------------------------
</TABLE>
- ------------------------------------------------------------------------------
Special Reporting Instructions:
- ------------------------------
- ------------------------------------------------------------------------------
-3-
<PAGE>
EXHIBIT 10.6
CONFIDENTIAL
[*]: CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
Campaign Insertion Order
Advertiser / Agency Info
<TABLE>
<S> <C>
/ / New Advertiser / Agency /X/ Existing Advertiser / Agency
Adv. / Agn. Name: System Advertising Client Name: Travelscape
(Below must be completed if invoicing client directly)
Street Address 1: 8951 W. Sahara Ave Street Address 1:
Street Address 2: Suite 100 Street Address 2:
City / State / Zip:Las Vegas, NV 89117 City / State / Zip:
Contact:Tim Poster Contact:
Contact email: [email protected] Contact email:
Phone: 702-792-3811 Fax: 702 735 4320 Phone: Fax:
</TABLE>
Special Billing Information
Bill To: /X/ Advertiser / Agency / / Client
SPECIAL BILLING INSTRUCTIONS:
Bill to System Advertising
Insertion Order Impression Details
<TABLE>
<S> <C>
I/O Ref. Name: Mapquest LMD Adv. / Agen. PO # (I/O #): Mapquest 002
Campaign Flight Dates: 01/21/99 to 01/21/2000 Campaign / / IS /X/ IS NOT Subject to agency commission
</TABLE>
If this campaign is not subject to agency commission then Gross = Net
<TABLE>
<S> <C> <C>
Impressions Ordered: 12,000,000 Gross CPM:$[*] Total Imp. Value $[*]
Est. Sponsorship Impressions: Gross Sponsorship $[*]
Other (Hybrid) $ Per: Total Other Value $
Total IO Value (Gross) $[*]
</TABLE>
Creative \ Banner Details
Creative Pick-up Site:
<TABLE>
<S> <C> <C> <C> <C>
/ / GIF / / HTML* / / Re-Direct - (to GIF) / / Re-Direct - (to Other)* Audio* /
/ Full Page* / / Interstitial* / / JAVA Banner* / / Daughter Window* / / Other*
</TABLE>
Banners Specs - max 12K / Button Specs - max 4K (Max 4
loops) 24/7 Network Standard Supported Banner Sizes - 468 X 60 / 234 X 60 / 88 X
31 (Additional sizes may be available) * This creative type requires a 5 day
lead time prior to insertion (Please review special formatting instructions)
Please refer to the original order name and reference # when sending creatives
Please submit all creatives to the following email address:
<PAGE>
Insertion Order Targeting Options
<TABLE>
<S> <C> <C>
Buy Type: /X/ Reserved Inventory / / Open Inventory - Non-Secured Inventory / / Sponsorship
</TABLE>
OPEN INVENTORY CAMPAIGNS ARE AUTOMATICALLY PRE-EMPTED BY RESERVED INVENTORY
CAMPAIGNS
DETAILS:
<TABLE>
<S> <C>
/ / Network Buy (All 24/7 network sites)
/X/ Site Specific Buy (Please list the desired site(s) or Locations in the "special instructions" field)
</TABLE>
/ / CHANNEL BUY Select Channel(s):
<TABLE>
<S> <C> <C>
/ / AUTOMOTIVE / / INTERNATIONAL / / TECHNOLOGY
/ / BUSINESS/FINANCIAL / / ISP/PORTAL / / TEEN/COLLEGE
/ / COMMUNITY/DIRECTORY / / MUSIC / / TRAVEL/DINING
/ / ENTERTAINMENT / / NEWS/INFORMATION / / WOMEN/FAMILY/EDU.
/ / GAMES / / REAL ESTATE
/ / HEALTH / / SPORTS
</TABLE>
Online Demographics. /X/ ALL (Default)
<TABLE>
<S> <C> <C> <C>
/ / Domain / / Countries / / Browser / / ISP
/ / SIC / / Area Code / / Op. System / / Psychographic
</TABLE>
PLEASE PROVIDE COMPLETE DETAILS FOR EACH DEMOGRAPHIC SELECTED in the
"Special Instructions" field
<TABLE>
<S> <C>
AUTHORIZED ADVERTISER / AGENCY REP AUTHORIZED 24/7 MEDIA REP
Gayle Meyers
CHRISTINE WINTERSON ---------------------------------
Print Name Print Name
/s/ Christine Winterson /s/ Gayle Meyers
Authorized Signature Authorized Signature
1/19/99 24/7 Rep. ID #
Date
</TABLE>
THIS AGREEMENT IS NOT BINDING UPON SELLER UNTIL ACCEPTED, AFTER SIGNATURE BY
AGENCY, BY SELLER (OR ITS AGENT, 24/7MEDIA, INC.,), THIS CONTRACT IS ENTERED
INTO ON THE TERMS AND CONDITIONS SET FORTH BY 24/7 MEDIA INC.(REF. ATTACHED).
PURCHASER ACKNOWLEDGES THAT IT HAS READ THE TERMS AND CONDITIONS
AND AGREES TO BE BOUND BY THEM
PLEASE FORWARD TO: 24/7 MEDIA TRAFFIC DEPARTMENT
<PAGE>
Special Instructions
Reporting Package / / Network / / Channel /X/ Site Specific
Mapquest Last Minute Deals Page:
Travelscape and LVRS will be hard coded under the Mapquest Last Minute Deals
page and running side by side.
Monthly impressions are 500,000 for Travelscape.
Monthly impressions are 500,000 for LVRS.
Creative to come
<PAGE>
Exhibit 10.7
CONFIDENTIAL
[*]: CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
Campaign Insertion Order
Advertiser / Agency Info
<TABLE>
<S> <C>
/ / New Advertiser / Agency /X/ Existing Advertiser / Agency
Adv. / Agn. Name: System Advertising Client Name: Travelscape
(Below must be completed if invoicing client directly)
Street Address 1: 8951 W. Sahara Ave Street Address 1:
Street Address 2: Suite 100 Street Address 2:
City / State / Zip: Las Vegas, NV 89117 City / State / Zip:
Contact: Tim Poster Contact:
Contact email: [email protected] Contact email:
Phone: 702-792-3811 Fax: 702 735 4320 Phone: Fax:
</TABLE>
Special Billing Information
Bill To: / / Advertiser / Agency /X/ Client
SPECIAL BILLING INSTRUCTIONS:
3/23/99-3/31/99 - $[*]
4/1/99-4/23/00 - $[*] / month (total: $[*])
Grand Total: $[*]
Insertion Order Impression Details
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<S> <C>
I/O Ref. Name: Mapquest3-Sponsorship Adv. / Agen. PO # (I/O #): mapquest3
Campaign Flight Dates: 3/23/99 to 4/23/2000 Campaign / / IS /X/ IS NOT Subject to agency commission
</TABLE>
IF THIS CAMPAIGN IS NOT SUBJECT TO AGENCY COMMISSION THEN GROSS = NET
<TABLE>
<S> <C>
Impressions Ordered: Gross CPM:$ Total Imp. Value$
Est. Sponsorship Impressions: 360,000,000 Gross Sponsorship $[*]
Other (Hybrid) $ Per: Total Other Value$
Total IO Value (Gross) $[*]
</TABLE>
Creative \ Banner Details
Creative Pick-up Site: NA
<TABLE>
<S> <C> <C> <C> <C>
/X/ GIF / /HTML* / / Re-Direct - (to GIF) / / Re-Direct - (to Other)* Audio* / /
Full Page* / / Interstitial* / / JAVA Banner* / / Daughter Window* / / Other*
</TABLE>
Banners Specs - max 12K / Button Specs - max 4K (Max 4
loops) 24/7 Network Standard Supported Banner Sizes - 468 X 60 / 234 X 60 / 88 X
31 (Additional sizes may be available) * This creative type requires a 5 day
lead time prior to insertion (Please review special formatting instructions)
Please refer to the original order name and reference # when
sending creatives
Please submit all creatives to the following email address:[email protected]
- -------------
<PAGE>
Insertion Order Targeting Options
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<S> <C> <C>
Buy Type: /X/ Reserved Inventory / / Open Inventory - Non-Secured Inventory / / Sponsorship
</TABLE>
OPEN INVENTORY CAMPAIGNS ARE AUTOMATICALLY PRE-EMPTED BY RESERVED INVENTORY
CAMPAIGNS
DETAILS:
/ / Network Buy (All 24/7 network sites)
/X/ Site Specific Buy (Please list the desired site(s) or Locations in the
"special instructions" field)
/ / Channel Buy Select Channel(s):
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<S> <C> <C>
/ / AUTOMOTIVE / / INTERNATIONAL / / TECHNOLOGY
/ / BUSINESS/FINANCIAL / / ISP/PORTAL / / TEEN/COLLEGE
/ / COMMUNITY/DIRECTORY / / MUSIC / / TRAVEL/DINING
/ / ENTERTAINMENT / / NEWS/INFORMATION / / WOMEN/FAMILY/EDU.
/ / GAMES / / REAL ESTATE
/ / HEALTH / / SPORTS
</TABLE>
Online Demographics: /X/ ALL (Default)
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<S> <C> <C> <C>
/ / Domain / / Countries / / Browser / / ISP
/ / SIC / / Area Code / / Op. System / / Psychographic
</TABLE>
Please provide complete details for each Demographic selected in the
"Special Instructions" field
<TABLE>
<S> <C>
AUTHORIZED ADVERTISER / AGENCY REP AUTHORIZED 24/7 MEDIA REP
Gayle Meyers
STEVE SARNER ---------------------------
Print Name Print Name
/s/ Steve Sarner /s/ Gayle Meyers
Authorized Signature Authorized Signature
02/24/1999 24/7 Rep. ID #GM085
Date
</TABLE>
THIS AGREEMENT IS NOT BINDING UPON SELLER UNTIL ACCEPTED, AFTER SIGNATURE
BY AGENCY, BY SELLER (OR ITS AGENT, 24/7 MEDIA, INC.), THIS CONTRACT IS ENTERED
INTO ON THE TERMS AND CONDITIONS SET FORTH BY 24/7 MEDIA INC.
(REF, ATTACHED). PURCHASER ACKNOWLEDGES THAT IT HAS READ
THE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THEM.
PLEASE FORWARD TO: 24/7 Media Traffic Department
<PAGE>
Special Instructions
Reporting Package / / Network / / Channel /X/ Site Specific
Site: Mapquest
Flights:
3/15-3/31/99
30,000,000 Impressions @ $[*]
4/1-3/15/2000
330,000,000 Impressions @ $[*]
Total Impressions: 360,000,000
Impressions to be delivered across the following units/areas:
MAP SEARCH PAGE - Link/Small Pull Down Button below Logo 88x31 Buttons (next to
Business Profiles and Sales Lead)
MAP RESULT PAGE - Link/Small Pull Down Button below Logo 88x31 Buttons (next to
Business Profiles and Sales Lead or next Get Map Button)
DRIVING DIRECTIONS SEARCH PAGE - Link/Small Pull Down Button below Logo 88x31
Buttons (next to Business Profiles and Sales Lead)
Proposal Outline -
This advertising contract gives Travelscape limited exclusivity as it relates to
online hotel/motel room resellers. Includes and excluded types of advertisers
are documented below
Categories of advertisers excluded from advertising on Mapquest:
Any online hotel/motel room resellers whose sole purpose of primary business is
selling hotel/motel rooms to consumers via the Internet e.g....
- - Hotel Reservation Network (www.hoteldiscounts.com)
- - 1800 USA Hotels (www.1800usahotels.com)
- - Categories of advertisers specifically not excluded from advertising on
Mapquest:
Full service travel booking engines e.g.....
- - Preview Travel (www.previewtravel.com)
- - Travelocity (www.Travelocity.com)
- - Biz Travel (www.Biztravel.com)
- - Pegasus
Full service travel sites will however be precluded from emphasizing their hotel
booking engine capabilities or featuring it to the exclusion of their other
services.
<PAGE>
Special Instructions
Reporting Package / / Network / / Channel /X/ Site Specific
Site: Mapquest
Flights:
3/23-3/31/99
30,000,000 Impressions @$[*]
4/1/99-4/23/00
330,000,000 impressions @$[*]
ADDED VALUE:
30,000,000 impressions @ [*]
Total Impressions: 390,000,000
Impressions to be delivered across the following units/areas:
MAP SEARCH PAGE - Link/Small Pull Down Button below Logo 88x31 Buttons (next to
Business Profiles and Sales Lead)
MAP RESULT PAGE - Link/Small Pull Down Button below Logo 88x31 Buttons (next to
Business Profiles and Sales Lead or next Get Map Button)
DRIVING DIRECTIONS SEARCH PAGE - Link/Small Pull Down Button below Logo 88x31
Buttons (next to Business Profiles and Sales Lead) TRAVEL GUIDE HOME
PAGE-Link/Small Pull Down Button below Travel Guide Home Page
<PAGE>
Exhibit 10.8
CONFIDENTIAL
[*]: CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
41 Madison Avenue, 32th Floor CLICK
New York, NY 10010 DOUBLECLICK
212/683-0001 Fax:212/889-0029 www.doubleclick.net
DOUBLECLICK'S SHOPPING AND SERVICES PROGRAM
MERCHANT AGREEMENT
You, the Merchant, agree to participate in DoubleClick Inc.'s Shopping and
Services Program in accordance with the attached Terms and Conditions. You also
agree to pay DoubleClick Inc. all the fees specified on all Product Option Pages
signed by You. Both You and DoubleClick Inc. agree that this Cover Page, the
attached Terms and Conditions and all signed Product Option Pages (collectively,
the "Merchant Agreement" or "Agreement"), may be updated from time to time by
replacing or adding further signed attachments to this Merchant Agreement.
MERCHANT Travelscape.com Contact: _______________
---------------
8951 West Sahara Avenue Phone: (702) 938-2100
------------------------ --------------
Las Vegas, NV 89117 Fax: _______________
------------------------
________________________ E-Mail: _______________
MERCHANT'S Travel reservation engine and services
--------------------------------------
PRODUCTS OR __________________________________________________
SERVICES __________________________________________________
MERCHANT
WEB SITE URL: www.travelscape.com Description: On-line travel site
------------------------ -------------------
CUSTOM
ARRANGEMENTS:
MERCHANT AND DOUBLECLICK, INC. CONFIRM THEIR MUTUAL AGREEMENT TO THESE
ARRANGEMENTS AS OF THE EFFECTIVE DATE BY SIGNING BELOW.
DOUBLECLICK INC. MERCHANT: TRAVELSCAPE
Signature: /s/ Kelly Freeman Signature: /s/ Jeff Marquis
------------------------------- -----------------------
Printed Name: Kelly Freeman Printed Name: Jeff Marquis
-------------
Title: E-Commerce Director Title: CFO
--------------------
EFFECTIVE DATE 12/11/98
<PAGE>
DOUBLECLICK'S SHOPPING AND SERVICES PROGRAM
MERCHANT AGREEMENT
PRODUCT OPTIONS PAGE
PRODUCT: Travelscape 1999 DURATION: February 1, 1999 - January 31, 2000
---------------- -----------------------------------
DOUBLECLICK'S SHOPPING AND SERVICES PROGRAM
MERCHANT AGREEMENT
PRODUCT OPTIONS PAGE
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<CAPTION>
COST PER
ESTIMATED THOUSAND
PERCENTAGE OF IMPRESSIONS (CPM)
IMPRESSIONS PER QUARTER IMPRESSIONS
OPTION (%) ($)
<S> <C> <C> <C>
1. SYNDICATED STORE PLACEMENT [*] [*] [*]
The Syndicated Store is a Web page listing of Merchants participating in
the DoubleClick Shopping and Services Program. This micro-site (i.e.,
mini-website consisting of a number of Web pages) is generated, hosted and
maintained on a DoubleClick server. The name and logo of the Affiliate that
provides the link to the Syndicated Store and of one or more sponsors also
appears prominently at the top of each page. A "Store Front Door GIF" is a
gif graphic on an Affiliate's web site with a textual and graphical
reference to a Merchant or a Merchant's products and with a link to the
Syndicated Store generated by DoubleClick for that Affiliate. Store Front
Door GIFs will be the links from the Affiliates' site to the Syndicated
Store. You will be a "Featured Store" which means You will receive
placement on the home page of every Syndicated Store as well as placement
within the travel subcategory of each Syndicated Store. The dimensions of
the "Featured Store" placement on the Syndicated Store's home page will be
420x20 gif. The dimensions of the "Featured Store" placement on the travel
subcategory of the Syndicate Store will be 420x60 gif.
</TABLE>
<PAGE>
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2. CO-BRANDED JUMP PAGE (NOT APPLICABLE FOR TRAVELSCAPE) [*] [*] [*]
The Co-Branded Jump Page is a page of information, order form or other CGI
form for a Merchant's product pre agreed with DoubleClick. The page is
generated, hosted and maintained by the Merchant's server and is accessed
from Reach Buttons, Text Links, Banner Ads and the other links specified
and ordered below. The name and logo of the Affiliate that provides the
link would also appear on the page with equal prominence to the Merchant's
own name and logo. You will generate, host and maintain a Co-Branded Jump
Page for each Affiliate participating in the DoubleClick Shopping and
Services Program.
3. 120 x 60 REACH BUTTONS [*] [*] [*]
A Reach Button is a button graphic on an Affiliate's web site for a product
with a link to a Co-Branded Jump Page.
4. TEXT LINK [*] [*] [*]
A text link on an Affiliate's web site is a textual reference to a Merchant
or one of its products with a link to a Co-Branded Jump Page.
5. SERVICES BOX [*] [*] [*]
A Services Box is a box of text and/or graphics relating to one or more
Merchants and/or their products that appears on an Affiliate's web site
with a link to a jump page. Travelscape will receive a text link, comprised
of no more than 50 character (including spaces), as well as equal rotation
of the gif, divided among other Services Box tenants.
6. BANNER ADS [*] [*] [*]
A Banner Ad is an advertisement appearing on Affiliate web sites based on
the parameters set forth in an Ad for details Insertion Order agreed to
with DoubleClick. All Travelscape Banner Ads are comprised of destination
keyword inventory on travel sites within the DoubleClick Network. Banner
Ads will appear on the Travelocity and Travelweb sites when a user conducts
a search on either site for the specific keyword. The keywords are as
follows: Atlanta, Boston, Chicago, Dallas, Hawaii, Houston, Las Vegas, Los
Angeles, Miami, Nashville, New Orleans, New York, Irvine, Orlando,
Philadelphia, Phoenix, San Diego, San Jose, San Francisco, Seattle, Tampa
and Washington.
7. ALTA VISTA KEYWORDS [*] [*] [*]
An Alta Vista keyword is a specific search term which triggers the delivery
of a particular banner ad on the search results page on the Alta Vista Web
site at www.altavista.digital.com when that search term is entered.
Keywords and parameters for their use are set forth in an Ad Insertion
Order agreed to with DoubleClick.
8. CUSTOM INTEGRATION [*] [*] [*]
Custom Integration is a set of arrangements by which a Merchant sponsors
and receives placement of its trade name, trademarks and/or logo within a
specific Affiliate site or set of Affiliate sites given the synergy between
the
</TABLE>
<PAGE>
Merchant's product and the Affiliate's content category. Details of any
Custom Integration agreed with Merchant appear below:
Travelon -
- Travelscape branded integration of a link to a co-branded version
of Your "Reserve Flight", "Reserve Car" and "Reserve Hotel"
functions on the navigation bar of every page of the Travelon
site.
- Links on Travelon's Specials pages.
- Branded integration of other relevant Travelscape content (for
example Travelscape's "Travel Tip of the Day") on Home Page and
other relevant pages throughout the site.
- Paragraph explaining the benefits of Travelscape with links to the
co-branded areas on Travelon's "Get Oriented/Welcome" page.
- Navigation bar or similar integration on every page of all
Travelon Network sites including AllSafaris.com, AllBikeTrips.com,
NatureTravel.com, FoodVacations.com, and any others that are
launched during the course of the partnership.
- A special email devoted to Travelscape mailed to the Travelon
subscriber list once per quarter.
TravelWeb - Travelscape will be integrated into the "Deals" section of
TravelWeb. Travelscape will appear above the HRN offers currently shown.
Exact execution to be mutually agreed upon by Travelscape and TravelWeb.
AltaVista - Fixed position on Search and Results pages of the AltaVista
Travel Zone powered by TheTrip.com.
Travelscape badge promoting discount hotels on jump page on way to
TheTrip.com's reservation engine.
Modern Bride - Travelscape.com will be the reservation engine of Modern
Bride with links and integration to promote its discount vacation packages,
cruises and flights. Travelscape.com will receive:
- Rotating presence on the home page of Modern Bride via prominent
text link or badge position.
- "Honeymoon Deals" incorporated as part of the top navigation bar
throughout the site with links to relevant Travelscape.com offers.
- "Honeymoon Finder" badge throughout the Honeymoon Planning section
of the site. Additional badges on popular areas including Wedding
Planner, Local Resources, Message Boards, and others.
- Banners promoting Travelscape.com's "Honeymoon Finder", vacation
or airline inventory rotated throughout the site.
<PAGE>
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9. E-MAIL/ELECTRONIC NEWSLETTER PLACEMENT [*] [*] [*]
Text placement within specific Affiliate newsletters with a link leading to
a Merchant jump pager or web site.
Details of any E-Mail sponsorships agreed with Merchant appear below:
Travelon -- 100 words plus URL
Travelocity Farewatcher - 50 words plus URL
TOTALS 100% 326,794,570
</TABLE>
<PAGE>
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<S> <C> <C> <C>
Payment for Travelscape 1999 Wh
</TABLE>
You agree to pay DoubleClick the amounts set forth below for all the
services ordered in this Product Options Page. Payments shall consist of
monthly standard fees and a percentage of Gross Sales Revenues, as set
forth below.
STANDARD FEES
Monthly Upfront Payment(s) = Q1 - $[*] per month ($[*] in
Q1); Q2 - $[*] per month ($[*] in Q2); Q3 - $[*] per
month ($[*] in Q3); Q4 - $[*] per month ($[*] in
Q4).
GROSS SALES REVENUES SHARE
Quarterly Gross Sales Revenue Share Payment = [*] of all Gross Sales
Revenues from Program Orders (defined in the Terms and Conditions) except
for Third Party Fulfilled Sales (defined below) to be paid within 30 days
of the close of each quarter. "Third Party Fulfilled Sales" means Program
Orders which relate to a published fare for a travel service where the sale
of that fare is completed by a third party and not Travelscape.
"MAKE GOODS"/OVERDELIVERY
DoubleClick has provided its best estimated for the number of impressions
that will be generated with the options selected by You on this Product
Option Page. However, DoubleClick cannot guarantee that such number of
impressions will be achieved. DoubleClick's estimate may be either too low
or too high. Differences between estimated and actual impressions will be
dealt with as follows:
a. AGGREGATE NUMBER OF IMPRESSIONS. The aggregate number of impressions per
quarter across all options will be considered. If the estimate for a
particular option has not been met, the "make goods" (defined below)
will be provided for that option, unless otherwise mutually agreed upon.
b. ".MAKE GOODS". In the event that the number of impressions achieved for
a particular option for the first quarter are below those estimated
above, then You shall receive additional impressions in the next
proceeding quarter which shall be over and above the impressions You are
already due to receive in such quarter. In the event that the number of
impressions achieved for any subsequent quarters are below those
estimated above, plus any impressions carried over from previous
quarters, then You shall receive, upon mutual agreement, either
additional impressions in the proceeding quarter(s) to make good the
shortfall or a rebate for the shortfall. If You and DoubleClick choose
to rebate the "make goods" following the end of a quarter, the rebate
shall be the number of "make goods" owed to Your for a particular
quarter multiplied by the cpm price for the quarter during which the
shortfall occurred. In the event that "make goods" are still owned at
the end of the last quarter of this Product Options Page, the "make
goods" will be either rebated to You, as calculated above, or this
Product Options Page may be extended by one quarter so that the make
goods will be provided to the greatest extent possible in such quarter.
c. OVER DELIVERY. If DoubleClick provides impressions that exceed the
estimates set forth above there shall be no additional charge to You.
However, in the event that over delivery for a particular Option in a
quarter exceeds the number of estimated impressions for that option by
10% or more. DoubleClick reserves the right to deliver
<PAGE>
EXCLUSIVITY
For the duration of this Product Options Page, DoubleClick will not
provide the options listed below in DoubleClick's Shopping and Services
Program for businesses whose primary service is providing multi-chain
hotel reservation booking engines:
- Syndicated Store Placement
- Services Box
- Banner Ads
- Custom Integration - Travelon
- Custom Integration - Modern Bride
- E-Mail/Electronic Newsletter Placement
DOUBLECLICK INC. MERCHANT: TRAVELSCAPE
Signature: /s/ Kelly Freeman Signature: /s/ Jeff Marquis
-----------------
Printed Name: Kelly Freeman Printed Name: Jeff Marquis
--------------
Title: E-Commerce Director Title: CEO
---------------------
Date: December 11, 1998
----------------------
<PAGE>
DOUBLECLICK'S SHOPPING AND SERVICES PROGRAM
MERCHANT AGREEMENT
TERMS AND CONDITIONS
(NOT to be revised; mutually acceptable custom arrangements may be added in the
box provided on the Cover Page)
<TABLE>
<S> <C> <C>
1. AGREEMENT DoubleClick Inc. ("DoubleClick") and You,
the Merchant, hereby enter into the
agreement set forth in these Terms and
Conditions and in the Cover Page and all
signed Product Option Pages (collectively,
this "Merchant Agreement" or "Agreement"),
as of the Effective Date (set forth on the
Cover Page). All capitalized terms not
otherwise defined in these Terms and
Conditions shall have the meanings defined
on the Cover Page or on the Product Options
Pages.
2. DOUBLECLICK The DoubleClick Shopping and Services
NETWORK SHOPPING AND Program is a dynamic of affiliated web sites
SERVICES PROGRAM that makes available opportunities for
product placement, promotion and online
commerce. For purposes of this Agreement,
"Affiliates" are web site proprietors who
have expressly agreed with DoubleClick to
participate in the DoubleClick Shopping and
Services Program as "Affiliates" and to make
available for others DoubleClick defined
product placement, promotion and online
commerce opportunities. "Merchants", like
Yourself, are participants in the
DoubleClick Shopping and Services Program
that desire to use for themselves certain
product placement, promotion and online
commerce opportunities made available
through the DoubleClick Shopping and
Services Program.
3. SHOPPING AND You agree to comply with DoubleClick's
SERVICES PROGRAM policies and requirements for Merchants'
PARTICIPATION participation in DoubleClick's Shopping an
Services Program, as may be posted from time
to time on DoubleClick's web site or as
otherwise notified to You. You agree that
because of the dynamic nature of electronic
commerce over the Internet, it is necessary
for DoubleClick's Shopping and Services
Program, the policies and requirements for
Merchants' participation and the product
placement and promotional opportunities made
available, to remain flexible in order to
adjust to changing market conditions. Your
DoubleClick account representative will be
available to discuss any questions You may
have in relation to any such changes. You
further agree to participate in
DoubleClick's Shopping and Services Program
for a minimum of six (6) months.
4. YOUR You are solely responsible for merchandising
RESPONSIBILITIES Your products or services, including
selection of appropriate links, banner ads,
promotions, keywords and other options. You
will supply to DoubleClick, via email or
other mutually convenient methods, all
banner ads and other advertisements,
graphics and data to be used in
DoubleClick's Shopping and Services Program
on Your behalf. You must maintain the online
commerce functionality of Your web site,
including the ability to take and process
orders online, receive secure credit card
information and fulfill orders placed by
customers.
You will be solely responsible for all
dealings with customers for Your products
and services, including order processing,
payment authorization, fulfillment, customer
service and collections. You will obtain all
necessary prior rights, licenses, consents,
waivers and permissions, from advertisers,
web site operators and others, to allow
DoubleClick and Affiliates to store, use and
deliver advertisements and other data
provided on Your behalf, and You agree to
comply with any further requirements of the
ad insertion orders agreed to with
DoubleClick. You agree that Your
advertisements and other promotional and
marketing activities, as part of the
DoubleClick Shopping and Services Program,
including Your web site, shall not be
deceptive, misleading, illegal or unethical.
You further represent
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<S> <C> <C>
that You have read, and will conform to,
DoubleClick's statement on privacy that can
be found on the DoubleClick web site, and
which may be updated from time to time.
Merchants must offer competitive
products/services taking into account market
conditions. Merchants are encouraged to make
reasonable efforts to offer
products/services meeting one or more of the
following standards:
Prices at or below the stated price
on the Merchant Web Site
Offer a free shopping option
Include a value added benefit or
free gift (worth a minimum of $10)
Include a free trial period with a
value of not less than 15% of Web
Site price and/or buy one get one
free, where buy price is not higher
than the Merchant Web Site price
Include incentive points
(Netcentives, Click Rewards, etc.)
5. DOUBLECLICK'S DoubleClick has no responsibility for
RESPONSIBILITIES merchandising Your products or services, for
collecting any payments due from or
otherwise dealing with Your customers, or
for resolving any disputes. DoubleClick's
sole obligations are to (a) provide product
promotion and online commerce opportunities
to You through the operation of the
DoubleClick Shopping and Services Program
and (b) to host and maintain the Syndicated
Store.
DoubleClick will track all orders and order
forms completed by customers who come to
jump pages or Your web site, via the links
established from web sites or web pages
maintained or operated by Affiliates or
DoubleClick, within 24 hours of using such
links (each a "Program Order"). All links to
jump pages or Your web site from web sites
or web pages maintained or operated by
Affiliates or DoubleClick shall conform to
the requirements specified on the
DoubleClick web site from time to time.
DoubleClick will report all Program Orders
to You in monthly reports to be delivered to
You within three (3) business days after the
end of the applicable month. All such
reports shall specify the number of Program
Orders, the Gross Sales Revenues (defined
below) from such orders, and our calculation
of the percentage of Gross Revenues due to
DoubleClick for such Program Orders.
6. LICENSE TO USE DoubleClick grants to you the non-exclusive
DOUBLECLICK and non-transferable right to use the
AFFILIATE PROGRAM trademarks, service marks, tradenames,
MATERIALS logos and other graphics provided to You
(collectively, "Program Materials") solely
in connection with Your participation in the
DoubleClick Shopping and Services Program as
a Merchant. You may not modify the Program
Materials in any way and You agree to
promptly change any incorrect usage of
Program Materials if You are notified by
DoubleClick or an Affiliate. DoubleClick and
the Affiliates reserve all other rights they
have in the Program Materials.
7. AD MANAGE You will be required to use DoubleClick's
(DFA) proprietary Ad Manage (DFA) software
technology in order to receive certain
Merchant options and related reports from
DoubleClick. Accordingly, DoubleClick grants
to You the non-exclusive and
non-transferable right to access and use Ad
Manage, which You can access and use only on
DoubleClick's web servers by using a unique
password issued by DoubleClick, and only for
the purposes of: (i) performing projections
of ad banner impression inventories that
might be available through the DoubleClick
Shopping and Services Program; and (ii)
receiving reports of ad banner impressions,
click-throughs and other data related to
operation of the DoubleClick Shopping and
Services Program. You shall use Ad Manage
only in accordance with reference manuals to
be supplied by DoubleClick and only in
accordance with DoubleClick's standard
security procedures, as posted, from time to
time, on the DoubleClick Web site or
otherwise notified to You. DoubleClick
further grants to You the right to use all
data provided by Ad Manage, for any
legitimate purpose related to Your business
and Web site operators, but DoubleClick
reserves all other rights to data provided
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<PAGE>
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<S> <C> <C>
to or by Ad Manage or otherwise as part of
DoubleClick Shopping and Services Program in
aggregation with similar data collected by
DoubleClick on behalf of its other
customers. No rights are being granted by
DoubleClick except to those specifically set
forth in this Agreement.
8. FEES You shall pay DoubleClick the fees set forth
on the applicable Product Options Page. The
fees may include an upfront fee, standard
quarterly fees and a percentage of Gross
Sales Revenues. The standard fee is a
recurring, non-refundable, non-creditable
fee, with the exception of make good
provisions, payable at the start of each
month this Agreement is in effect (as
specified in the applicable Product Options
Page). The percentage of Gross Sales
Revenues is a non-refundable, non-creditable
performance based fee payable at the end of
each quarter this Agreement is in effect.
You agree to pay DoubleClick the specified
percentage of Your Gross Sales Revenues in
return for the Program Orders You receive.
The first standard monthly fee is due thirty
days prior to the start date. All subsequent
standard monthly fees for the coming month
are to be paid at least fifteen (15) days
prior to the start of the month. The
percentage of Gross Sales Revenues for the
past quarter are due within thirty (30) days
of the commencement of each subsequent
quarter. For purposes of this Agreement
"Gross Sales Revenues" shall mean the gross
invoice price or value of all Program
Orders. Late payments will be subject to
late fees at the rate of 1.5% per month to
cover DoubleClick's costs of collections as
well as interest, or, if lower, the maximum
rate allowed by law.
9. TERM Subject to the termination rights provided
in these Terms and Conditions, this
Agreement shall continue in effect until the
expiration of the last to expire of any
Product Options Pages.
10. TERMINATION This Agreement may not be terminated by
either party for six (6) months following
the start of the Duration of this Agreement;
except for material breaches by the other
party. If either party should materially
breach this contract during the initial six
(6) month period, the non-breaching party
may give the breaching party written notice
of the breach and thirty (30) days in which
to cure. If the breaching party fails to
cure the breach within such thirty day
period, this Agreement shall terminate on
the expiration of the thirty day notice
period. Following the initial six (6) month
period, either party may terminate this
Agreement, with or without cause, by
providing sixty (60) days prior written
notice to the other Party.
11. RESERVATION OF DoubleClick is the exclusive owner of the
RIGHTS DoubleClick Shopping and Services Program,
the DOUBLECLICK and DART trademarks, and the
aggregated form of any data provided by You
and other participants in the course of
participating in the DoubleClick Shopping
and Services Program. DoubleClick and its
licensors are the exclusive owners of the
Program Materials and any software and web
based materials that are developed, provided
or operated by DoubleClick as part of the
DoubleClick Shopping and Services Program,
and all proprietary rights therein.
DoubleClick and its licensors reserve all
rights not expressly granted in this
Agreement.
12. INDEMNIFICATION You agree to indemnify and hold DoubleClick,
and Affiliates, harmless from and against
any and all claims, actions, losses,
damages, liability, costs and expenses
(including, without limitation, reasonable
attorneys' fees and disbursements incurred
by DoubleClick in any action between You and
DoubleClick, or between DoubleClick and any
third party or otherwise) arising out of or
in connection with (i) the breach of any
representation, warranty or agreement made
by You hereunder, (ii) any infringement of
any patent, copyright, trademark or other
third party right by You, Your web site or
any data or materials provided by You to
DoubleClick or to any other participant in
the DoubleClick Shopping and Services
Program, (iii) Your operation of jump pages
and/or Your site, (iv) any Program Orders,
or products or services You provide, or (v)
Your participation in the DoubleClick
Shopping and Services Program.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
13. WARRANTY DOUBLECLICK MAKES NO WARRANTIES OF ANY KIND
DISCLAIMER TO ANY PERSON WITH RESPECT TO OR ON BEHALF
OF THE DOUBLECLICK SHOPPING AND SERVICES
PROGRAM, THE PARTICIPANTS IN SUCH PROGRAM
AND THEIR WEB SITES, THE WEB SITES OF ANY
OTHER THIRD PARTY, YOUR PARTICIPATION IN THE
DOUBLECLICK SHOPPING AND SERVICES PROGRAM,
OR ANY DATA SUPPLIED, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
14. LIMITATION AND DOUBLECLICK SHALL NOT BE LIABLE TO YOU OR
EXCLUSION OF ANY THIRD PARTY FOR ANY LOSS, COST, DAMAGE
LIABILITY OR EXPENSE INCURRED IN CONNECTION WITH
OPERATION OF THE DOUBLECLICK SHOPPING AND
SERVICES PROGRAM OR THE OTHER PARTICIPANTS
AND THEIR WEB SITES, THE WEB SITES OF ANY
OTHER THIRD PARTY, YOUR PARTICIPATION IN THE
SHOPPING AND SERVICES PROGRAM, OR ANY DATA
PROVIDED, INCLUDING, WITHOUT LIMITATION, FOR
ANY UNAVAILABILITY OR INOPERABILITY OF THE
INTERNET, TECHNICAL MALFUNCTION, COMPUTER
ERROR, CORRUPTION OR LOSS OF DATA, OR FOR
LOSS OF PROFITS, LOSS OF BUSINESS
OPPORTUNITY OR OTHER INJURY, DAMAGE OR
DISRUPTION OF ANY KIND. IN NO EVENT SHALL
DOUBLECLICK BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES EVEN IF SUCH DAMAGES ARE
FORESEEABLE AND WHETHER OR NOT DOUBLECLICK
HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
DOUBLECLICK'S MAXIMUM AGGREGATE LIABILITY
SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY
YOU TO DOUBLECLICK UNDER THE APPLICABLE
PRODUCT OPTIONS PAGE THAT COVERS THE
SERVICES THAT GAVE RISE TO THE LIABILITY.
15. CONFIDENTIALITY The terms of this Agreement and information
You will receive from DoubleClick about the
DoubleClick Shopping and Services Program,
Affiliates and other matters is proprietary
and confidential information of DoubleClick
("DoubleClick Confidential Information").
You agree that for the duration of this
Agreement and two (2) years thereafter, You
will not disclose the DoubleClick
Confidential Information to any third party,
nor use the DoubleClick Confidential
Information for any purpose not permitted
under this Agreement.
16. INDEPENDENT Each party shall be and act as an
CONTRACTOR STATUS independent contractor and not as partner,
joint venturer or agent of the other.
17. MODIFICATIONS This Agreement represents the entire
AND WAIVERS understanding between DoubleClick and You,
and supersedes all prior agreements and
cannot be modified except by a written
document signed by both parties
18. ASSIGNMENT This Agreement and the rights hereunder are
not transferable or assignable without prior
written consent of the non-assigning party;
provided, however, that this Agreement may
be assigned by DoubleClick (a) to a person
or entity who acquires substantially all of
DoubleClick's assets, stock or business by
sale, merger or otherwise and (b) to an
affiliate of DoubleClick.
19. APPLICABLE LAW This Agreement shall be governed by New York
law and the jurisdiction and venue for all
disputes hereunder shall be New York City.
In the event that any provisions of this
Agreement shall be held unenforceable, such
provisions shall be limited or eliminated to
the minimum extent necessary.
</TABLE>
<PAGE>
[*]: CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
LUXOR
LAS VEGAS
1998 WHOLESALE CONTRACT AGREEMENT
This Agreement is between Las Vegas Reservation Systems (Hereinafter referred to
as "SUPPLIER") and Ramparts, Inc. (hereinafter referred to as "HOTEL"), whereby
HOTEL agrees to provide room nights to SUPPLIER and SUPPLIER agrees to provide
occupied room nights to HOTEL based upon the terms, provisions and conditions
set forth herein.
I. TERM OF AGREEMENT
The term of this Agreement will commence January 1, 1998 and continue
through December 31, 1998 unless earlier terminated as provided in this
agreement.
II. ROOM ALLOTMENT
A. HOTEL will supply SUPPLIER with the number of rooms for the
nights specified ("room allotment") and at the rates specified
in Exhibit A attached hereto.
B. Room allotments are not transferable or assignable by SUPPLIER
to any party.
C. All rooms will be located at Luxor Las Vegas. However, should
circumstances beyond the control of HOTEL occur (such as fire,
flood or the elements, acts of God, riots, labor strikes,
civil commotion, utility failure, mechanical or electrical
failure, or similar events beyond the control of HOTEL), HOTEL
may find it necessary to relocate the group to a comparable
hotel. The room rate for the comparable hotel will be at the
same room rate specified in Exhibit A attached hereto.
III. ROOM RATES
A. All room rates are valid for the periods specified in Exhibit
A. Sunday through Thursday nights will receive the midweek
rate, Friday and Saturday nights will be subject to the
weekend rate.
B. The room rates for each room night are set forth in Exhibit A.
If more than two (2) persons occupy a room, an additional
$[*] per night, triple occupancy, and $[*] per night, quad
occupancy will be added to the contracted room rate. No more
than four (4) persons may share a room. Children under age
twelve (12) may share a room with their parents at no
additional charge, provided no portable beds are requested.
LUXOR HOTEL / CASINO
3900 Las Vegas Boulevard, South Las Vegas, Nevada 89119-1000
Post Office Box 98640 Las Vegas, Nevada 89193-8640
Telephone (702) 262-4000
www.luxor.com
<PAGE>
2
C. Room rates do not include Clark County tax (currently nine
percent {9%}) or other applicable taxes or charges imposed by
authorities on the sale of room nights (currently none). The
taxes and charges are subject to change without notice. The
taxes and charges in effect on the date the room night is used
will be added to the room rate.
D. Room rates do not include any commission, fee or other payment
to SUPPLIER HOTEL is not responsible for payment of any
commission, fee or other payment to SUPPLIER.
IV. BAGGAGE HANDLING
A. Room rates do not include baggage handling fees. A $3.50 per
person, per visit baggage handling fee will be charged for all
groups (10 or more rooms reserved in a single reservation), or
those guests requiring and having prepaid such baggage
service. ALL BAGS must be properly tagged with guest's name.
This $3.50 baggage fee is subject to change.
V. ROOM LIST
A. [*] prior to each arrival date, SUPPLIER must
supply to the HOTEL Reservation Department a Rooming List,
setting out the total number of guests, roommate assignments,
arrival and departure information and any other information
requested by HOTEL.
B. If the Rooming List is not received [*] prior to
the arrival date, the HOTEL reserves the right to cancel the
entire room allotment for that specific date by telephonic or
facsimile notice to SUPPLIER.
C. The number of rooms requested in the [*] Rooming
List will fix the number of rooms reserved by SUPPLIER for the
arrival date specified, unless SUPPLIER has guaranteed
additional rooms as permitted in section VI. B.
below.
D. SUPPLIER agrees to promptly notify HOTEL of any changes in the
Rooming List. Receipt of such notice will not obligate HOTEL
to accommodate requests for additional rooms, except as
permitted under section VI.B., nor will it release SUPPLIER
from its 48 hour guarantee of the number of rooms fixed in the
[*] Rooming List.
<PAGE>
3
VI. ROOM GUARANTEE
A. If SUPPLIER fails to consistently utilize its entire room
allotment, the HOTEL may reduce SUPPLIER'S room allotment to a
level consistent with SUPPLIER's room usage.
B. SUPPLIER agrees to notify HOTEL whenever it appears that
SUPPLIER will not fully utilize its room allotment for any
date(s). At [*] and at [*] prior to each arrival, SUPPLIER
shall provide HOTEL with its expected room allotment
utilization. HOTEL reserves the right to reduce SUPPLIER'S
room allotment for any date(s) should SUPPLIER'S expected
use of its room allotment as disclosed in the [*] notice
fall below the room allotment originally allocated to
SUPPLIER. If HOTEL reduces SUPPLIER'S room allotment,
SUPPLIER will retain the remainder of the room allotment
guaranteed to SUPPLIER for all remaining rooms under this
Agreement (unless HOTEL has elected to reduce the room
allotment as provided above as a result of SUPPLIER'S
consistent underutilization of rooms) and the room
allotment requested in the [*] notice. If SUPPLIER does
not wish to permit HOTEL to reduce its room allotment for
a particular date(s). SUPPLIER may retain its room
allotment by guaranteeing the first night's room, tax and
baggage handling fee (if applicable) for the number of
rooms specified by SUPPLIER.
C. The number of rooms requested in the [*] Rooming List will
fix the number of rooms guaranteed by SUPPLIER for the
arrival date specified. Any portion of the room allotment
not reserved by SUPPLIER'S submission of a Rooming List
will automatically be released to HOTEL. Should SUPPLIER
require any additional rooms after submission of the
Rooming List, HOTEL will attempt, but shall have no
obligation, to accommodate SUPPLIER with rooms at the
contracted room rate.
D. SUPPLIER guarantees payment of the first room night for the
number of rooms requested in the [*] Rooming List,
regardless of check-in times, except that such rooms may
be canceled without cost until [*] before scheduled
arrivals. SUPPLIER will be charged for the first night's
room, tax and baggage handling fee (if applicable) for any
cancellations inside [*].
E. It is the policy of HOTEL to provide the highest level of
services to its SUPPLIER. As such, Hotel reserves the right to
make allowances on room and tax charges for cancellations
received between [*] and [*], as each case warrants. An
allowance by HOTEL in one instance will not obligate
HOTEL to give allowance in any other instance.
<PAGE>
VII. CHECK-IN/CHECK-OUT
SUPPLIER shall notify all guests of check-in and check-out times and
that identification and a cash deposit or a credit card imprint to
cover incidental room charges will be required at check-in. Check-in
time is 3:00 p.m. and check-out time is 11:00 a.m.
VIII. DEPOSIT/LETTER OF CREDIT
On or before, December 1, 1997, SUPPLIER shall provide HOTEL with a
cash deposit or an irrevocable Letter of Credit in the amount of
$[*] for full performance of SUPPLIER'S obligations under this
Agreement. The letter of Credit must be in a form acceptable to HOTEL
enabling HOTEL to draw upon the Letter of Credit on demand by HOTEL.
The Letter of Credit must be issued for sixty (60) days beyond the term
of this agreement (March 1, 1999). The Letter of Credit must be payable
through a United States Bank. In the event of any default by SUPPLIER,
HOTEL may apply or retain all or any part of the deposit or Letter of
Credit to cure any default or to reimburse HOTEL for any loss, cost or
expense which HOTEL may incur by reason of the default. If any part of
the deposit or Letter of Credit is used, SUPPLIER, on demand will
restore the deposit or Letter of Credit to its original amount. All
cash deposits will be held without interest and will be held for sixty
(60) days beyond the termination of this Agreement, or until all sums
due HOTEL under this Agreement have been paid in full, whichever is
later.
IX. PAYMENT PROCEDURES
A. Supplier is responsible for obtaining payment for room, tax
and baggage handling (if applicable) from it clients. All
room, tax and baggage handling (if applicable) charges will be
billed to SUPPLIER. An invoice for the room charges, taxes and
baggage handling will be sent to SUPPLIER within seven (7)
days of each departure. Payment from SUPPLIER must be received
by HOTEL within [*] of the invoice date.
B. In the event of SUPPLIER'S breach and/or default of this
Agreement, HOTEL may apply or retain all or any part of the
deposit amount or Letter of Credit to cure any default or to
reimburse HOTEL for any loss, cost or expense which HOTEL may
spend by reasons of the default.
C. In the event of termination of this Agreement by either party,
the HOTEL shall retain SUPPLIER'S deposit or Letter of Credit
for a period of sixty (60) days following termination, or
until all sums due to HOTEL under this Agreement have
<PAGE>
5
been paid in full, whichever is later.
D. SUPPLIER will inform individual guests that they are
responsible for all incidental charges incurred during their
stay and will use its best efforts to assist HOTEL in the
collection of such incidental charges.
E. Vouchers will be used for identification purposes only at the
hotel Front Desk. Full payment is due from the invoice only.
HOTEL will provide numbers from room list, which appears on
invoice next to the guests name.
Vouchers will not be returned with the invoice for payment.
X. LEISURE TRAVEL
SUPPLIER understands that the rates and room commitments allocated by
HOTEL are for the exclusive use of its "leisure", i.e., vacation travel
clients. Any business that HOTEL would obtain from SUPPLIER that
SUPPLIER knows would encompass banquet or meeting space or that
constitutes a part of the convention, incentive, meeting or association
markets, will be charged at the HOTEL'S current room rate for those
markets, and detailed in a separate agreement.
XI. USE OF HOTEL'S TRADEMARK/ADVERTISING
This Agreement does not constitute a grant by the HOTEL to SUPPLIER of
the right to use any HOTEL trade names, trademarks or service marks
except as may be specifically authorized in writing by the HOTEL.
SUPPLIER agrees that it will not use any verbal or printed advertising
or promotional material, brochures or printed matter using the HOTEL'S
Trade name, Trademark or Service Mark without such material first being
reviewed and authorized in writing by the HOTEL.
XII. NO AGENCY/INDEMNIFICATION
SUPPLIER agrees to indemnify, defend and hold harmless the HOTEL, from
any and all claims of loss, damage, injury or expense arising out of
the terms of this Agreement, including but not limited to any claims
brought by SUPPLIER's guest as to room allotments, room availability,
room rates, package inclusions, conditions and charges.
XIV. NON-PERFORMANCE
If SUPPLIER fails to pay any invoice for services rendered, if SUPPLIER
fails to perform any of its other obligations under this Agreement, or
if SUPPLIER ceases doing business as a going concern, SUPPLIER will be
in default and HOTEL at its option, may immediately terminate this
Agreement by giving written notice to
<PAGE>
6
SUPPLIER, in addition to pursuing all other remedies available to it.
XV. TERMINATION
This Agreement may be canceled by either party upon thirty (30) days
written notice.
XVI. OVER BOOKING/FORCE MAJURE:
HOTEL shall attempt to provide all rooms as specified and committed to
the client, subject however, to OVER BOOKING resulting from unusually
low number of no-shows and cancellations based on historical trends and
circumstances beyond the control of the Hotel, such as acts of God,
riots, labor strikes, civil commotion, or otherwise. Should HOTEL deem
it necessary to relocate a confirmed group, to the extent practicable,
HOTEL will notify client in advance of the situation requiring
relocation and attempt to book rooms at a comparable facility. Client
will be responsible to prepay the HOTEL accepting the group.
XVII. GENERAL
This agreement constitutes the entire Agreement between HOTEL and
SUPPLIER. All prior or contemporaneous agreements or understandings,
written or oral, are superseded hereby and merged herein. This
Agreement may be modified only in writing, signed by both parties. The
Agreement shall be governed by the laws of the State of Nevada.
HOTEL: SUPPLIER
RAMPARTS, INC. a LAS VEGAS RESERVATION SYSTEMS
Nevada Corporation 8951 West Sahara
Las Vegas, NV 89117
By: /s/ John E. Borla By: /s/ Timothy Poster
-------------------------------- ---------------------------
John E. Borla Timothy Poster
Its: Director of Sales Its: President
By: /s/ Edward L. Muncey
--------------------------------
Edward L. Muncey
Its: Sales Manager
98lvrs
<PAGE>
<TABLE>
<S> <C> <C> <C>
Dec 31 - Jan 2 **New Years 170 170
</TABLE>
* COMDEX (October 16, 1998) - report all rooms sold (October 26, 1998) -
final room manifest due
** NEW YEAR'S (December 8, 1998) - report all rooms sold (December 15,
1998) - final room manifest due
*** NOVEMBER 19, 1998 $[*] for stay through's, $[*] for arrivals
**** NOVEMBER 19, 1998 For Mini-Suite Arrivals only
<PAGE>
LUXOR LAS VEGAS
1998
LAS VEGAS RESERVATION SYSTEMS
Exhibit A
<TABLE>
<CAPTION>
Run-of-House Run-of-House Mini-Suite Mini-Suite
Room rates Room blocks Room Rates Room Blocks
Sun-Thur Fri & Sat Sun-Thur Fri & Sat Sun-Thu Fri & Sat Sun-Thu Fri & Sat
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan 1-3 [*] [*] [*] [*] [*] [*] [*] [*]
Jan 4-7 [*] [*] [*] [*] [*] [*] [*] [*]
Jan 8-10 CES [*] [*] [*] [*] [*] [*] [*] [*]
Jan 11 - Feb12 [*] [*] [*] [*] [*] [*] [*] [*]
Feb 13-15 President's [*] [*] [*] [*] [*] [*] [*] [*]
Feb 16 [*] [*] [*] [*] [*] [*] [*] [*]
Feb 17-20 MAGIC [*] [*] [*] [*] [*] [*] [*] [*]
Feb 21 - Apr 4 [*] [*] [*] [*] [*] [*] [*] [*]
Apr 5-7 NAB [*] [*] [*] [*] [*] [*] [*] [*]
Apr 8 - May 16 [*] [*] [*] [*] [*] [*] [*] [*]
May 17-21 [*] [*] [*] [*] [*] [*] [*] [*]
May 22-24 Memorial [*] [*] [*] [*] [*] [*] [*] [*]
May 25-28 [*] [*] [*] [*] [*] [*] [*] [*]
May 29 - Jul 2 [*] [*] [*] [*] [*] [*] [*] [*]
Jul 3-4 July 4th Wknd [*] [*] [*] [*] [*] [*] [*] [*]
Jul 5 - Sep 3 [*] [*] [*] [*] [*] [*] [*] [*]
Sep 4-6 Labor Day [*] [*] [*] [*] [*] [*] [*] [*]
Sep 7 - 10 [*] [*] [*] [*] [*] [*] [*] [*]
Sep 11 - Oct 8 [*] [*] [*] [*] [*] [*] [*] [*]
Oct 9-11 Columbus [*] [*] [*] [*] [*] [*] [*] [*]
Oct 12 - Nov 5 [*] [*] [*] [*] [*] [*] [*] [*]
Nov 6-8 Veterans [*] [*] [*] [*] [*] [*] [*] [*]
Nov 9-14 [*] [*] [*] [*] [*] [*] [*] [*]
Nov 15-18 *Comdex [*] [*] [*] [*] [*] [*] [*] [*]
***Nov 19 ***180/41 [*] [*] [*] [*] [*] [*] [*] [*]
Nov 20-25 [*] [*] [*] [*] [*] [*] [*] [*]
Nov 26-28 Thanksgiving [*] [*] [*] [*] [*] [*] [*] [*]
Nov 29 - Dec 12 [*] [*] [*] [*] [*] [*] [*] [*]
Dec 13-23 [*] [*] [*] [*] [*] [*] [*] [*]
Dec 24-26 X-Mas Holiday [*] [*] [*] [*] [*] [*] [*] [*]
Dec 27-30 [*] [*] [*] [*] [*] [*] [*] [*]
Dec 31 - Jan 2 **New Years [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
98LVRS
* COMDEX (October 16, 1998) - report all rooms sold (October 26, 1998) - final
room manifest due
** NEW YEAR'S (December 8, 1998) - report all rooms sold (December 15, 1998) -
final room manifest due
*** NOVEMBER 19, 1998 $[*] for stay through's, $[*] for arrivals
**** NOVEMBER 19, 1998 For Mini-Suite Arrivals only
<PAGE>
EXHIBIT 10.10
CONFIDENTIAL
[*]: CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
LUXOR(R)
LAS VEGAS
1999 WHOLESALE CONTRACT AGREEMENT
This Agreement is between Las Vegas Reservation Systems (hereinafter referred to
as "SUPPLIER") and Ramparts, Inc. (hereinafter referred to as "HOTEL"), whereby
HOTEL agrees to provide room nights to SUPPLIER and SUPPLIER agrees to provide
occupied room nights to HOTEL based upon the terms, provisions and conditions
set forth herein.
I. TERM OF AGREEMENT
The term of this Agreement will commence January 3, 1999 and continue
through January 2, 2000 unless earlier terminated as provided in this
Agreement.
II. ROOM ALLOTMENT
A. Hotel will supply SUPPLIER with the number of rooms for the
nights specified ("room allotment") and at the rates specified
in Exhibit A, attached hereto.
B. Room allotments are not transferable or assignable by SUPPLIER
to any party.
C. All rooms will be located at Luxor Las Vegas. However, should
circumstances beyond the control of HOTEL occur (such as fire,
flood or the elements, acts of God, riots, labor strikes,
civil commotion, utility failure, mechanical or electrical
failure, or similar events beyond the control of HOTEL), HOTEL
may find it necessary to relocate the group to a comparable
hotel. The room rate for the comparable hotel will be at the
same room rate specified in Exhibit A, attached hereto.
III. ROOM RATES
A. All room rates are valid for the periods specified in Exhibit
A. Sunday through Thursday nights will receive the midweek
rate. Friday and Saturday nights will be subject to the
weekend rate.
B. The room rates for each room are set forth in Exhibit A. If
more than two (2) persons occupy a room, an additional [*]
per night, triple occupancy, and [*] per night, quad
occupancy, will be added to the contracted room rate. No more
than four (4) persons may share a room. Children under age
twelve (12) may share a room with their parents at no
additional charge, provided no portable beds are requested.
LUXOR HOTEL / CASINO
3900 Las Vegas Boulevard, South * Las Vegas, Nevada 89119-1000
Post Office Box 98640 * Las Vegas, Nevada 89193-B640
Telephone (702) 262-4000
www.luxor.com
<PAGE>
2
C. Room rates do not include Clark County tax (currently nine per
cent {9%}) or other applicable taxes or charges imposed by
authorities on the sale of room nights (currently none). The
taxes and charges are subject to change without notice. The
taxes and charges in effect on the date the room night is used
will be added to the room rate.
D. Room rates do not include any commission, fee or other payment
to SUPPLIER. HOTEL is not responsible for payment of any
commission, fee or other payment to SUPPLIER.
IV. BAGGAGE HANDLING
Room rates do not include baggage-handling fees. A [*] per
person, per visit baggage handling fee will be charged for all
groups (10 or more rooms reserved in a single reservation), or
those guests requiring and having prepaid such baggage
service. ALL BAGS must be properly tagged with guest's name.
This [*] baggage fee is subject to change.
V. ROOM LIST:
A. [*] prior to each arrival date, SUPPLIER must supply to the
HOTEL Reservation Department a Rooming List, setting out the
total number of guests, roommate assignments, arrival and
departure information and any other information requested by
HOTEL.
B. If the Rooming List is not received [*] prior to the arrival
date, the HOTEL reserves the right to cancel the entire room
allotment for that specific date by telephonic or facsimile
notice to the SUPPLIER.
C. The number of rooms requested in the [*] Rooming List will fix
the number of rooms reserved by SUPPLIER for the arrival date
specified, unless SUPPLIER has guaranteed additional rooms as
permitted in Section VI.B. below.
D. SUPPLIER agrees to promptly notify HOTEL of any changes in the
Rooming List. Receipt of such notice will not obligate HOTEL
to accommodate requests for additional rooms, except as
permitted under Section VI.B. nor will it release SUPPLIER
from its 48 hour guarantee of the number of rooms fixed in the
[*] Rooming List.
<PAGE>
3
VI. ROOM GUARANTEE:
A. If SUPPLIER fails to consistently utilize its entire room
allotment, the HOTEL may reduce SUPPLIER'S room allotment to a
level consistent with SUPPLIER'S room usage.
B. SUPPLIER agrees to notify HOTEL whenever it appears that
Supplier will not fully utilize its room allotment for any
date(s). At [*] and at [*] prior to each arrival, SUPPLIER
shall provide HOTEL with its expected room allotment
utilization. HOTEL reserves the right to reduce SUPPLIER'S
room allotment for any date(s) should SUPPLIER'S expected
use of its room allotment as disclosed in the [*] notice
fall below the room allotment originally allocated to
SUPPLIER. If HOTEL reduces SUPPLIER'S room allotment,
SUPPLIER will retain the remainder of the room allotment
guaranteed to SUPPLIER for all remaining rooms under this
Agreement (unless HOTEL has elected to reduce the room
allotment as provided above as a result of SUPPLIER'S
consistent underutilization of rooms) and the room
allotment requested in the [*] notice. If SUPPLIER does
not wish to permit HOTEL to reduce its room allotment for
a particular date(s), SUPPLIER may retain its room
allotment by guaranteeing the first night's room, tax and
baggage handling fee (if applicable) for the number of
rooms specified by SUPPLIER.
C. The number of rooms requested in the [*] Rooming List will
fix the number of rooms guaranteed by SUPPLIER for the arrival
date specified. Any portion of the room allotment not
reserved by SUPPLIER'S submission of a Rooming List will
automatically be released to HOTEL. Should SUPPLIER require
any additional rooms after submission of Rooming List, HOTEL
will attempt, but shall have no obligation, to accommodate
SUPPLIER with rooms at the contracted room rate.
D. SUPPLIER guarantees payment of the first room night for the
number of rooms requested in the [*] Rooming List,
regardless of check-in times, except that such rooms may
be canceled without cost until [*] before scheduled
arrivals. SUPPLIER will be charged for the first night's
room, tax and baggage handling fee (if applicable) for any
cancellations inside [*].
E. It is the policy of the HOTEL to provide the highest level of
services to its SUPPLIER. As such, HOTEL reserves the
right to make allowances on room and tax charges for
cancellations received between [*] and [*] as each case
warrants. An allowance by HOTEL in one instance will not
obligate HOTEL to give allowance in any other instance.
<PAGE>
4
VII. CHECK-IN/CHECK-OUT:
SUPPLIER shall notify all guests of check-in and check-out times and
that identification and a cash deposit or a credit card imprint to
cover incidental room charges will be required at check-in. Check-in
time is 3:00 p.m. and check-out time is 11:00.
VIII DEPOSIT/LETTER OF CREDIT:
On or before May 1, 1999 SUPPLIER shall provide HOTEL with an
irrevocable Letter of Credit in the amount of $[*] for full
performance of SUPPLIER'S obligations under this Agreement. The Letter
of Credit must be in a form acceptable to HOTEL enabling HOTEL to draw
upon the Letter of Credit on demand by HOTEL. The Letter of Credit must
be issued for sixty (60) days beyond the term of this Agreement (July
1, 2000). The Letter of Credit must be payable through a United States
bank. In the event of any default by SUPPLIER, HOTEL may apply or
retain all or any part of the deposit or Letter of Credit to cure any
default or to reimburse HOTEL for any loss, cost or expense which HOTEL
may incur by reason of default. If any part of the deposit or Letter of
Credit is used, SUPPLIER, on demand, will restore the deposit or Letter
of Credit to its original amount. All cash deposits will be held
without interest and will be held for sixty (60) days beyond the
termination of this Agreement, or until all sums due HOTEL under this
Agreement have been paid in full, whichever is later.
IX. PAYMENT PROCEDURES:
A. SUPPLIER is responsible for obtaining payment for room, tax
and baggage handling (if applicable) from its clients. All
room, tax and baggage handling (if applicable) charges will be
billed to SUPPLIER. An invoice for the room charges, taxes and
baggage handling will be sent to SUPPLIER within seven (7)
days of each departure. Payment from SUPPLIER must be received
by HOTEL within [*] of the invoice date.
B. In the event of SUPPLIER'S breach and/or default of this
Agreement, HOTEL may apply or retain all or any part of the
deposit amount or Letter of Credit to cure any default or to
reimburse HOTEL for any loss, cost or expense which HOTEL may
spend by reasons of the default.
C. In the event of termination of this Agreement by either party,
HOTEL shall retain SUPPLIER's deposit or Letter of Credit for
a period of sixty (60) days following termination, or until
all sums due to HOTEL under this Agreement have been paid in
full, whichever is later.
D. SUPPLIER will inform individual guests that they are
responsible for all incidental charges incurred during their
stay and will use its best efforts to assist HOTEL in the
collection of such incidental charges.
E. Vouchers will be used for identification purposes only at
HOTEL Front Desk. Full payment is due from the invoice only.
Hotel will provide numbers from room list, which appears on
invoice next to the guest's name. Vouchers will not be
returned with the invoice for payment.
<PAGE>
5
X. LEISURE TRAVEL:
SUPPLIER understands that the rates and room commitments allocated by
HOTEL are for the exclusive use of its "leisure", i.e., vacation travel
clients. Any business that HOTEL would obtain from SUPPLIER that
SUPPLIER knows would encompass banquet or meeting space or that
constitutes a part of the convention, incentive, meeting or association
markets, will be charged at HOTEL's current room rate for those
markets, and detailed in a separate agreement.
XI. USE OF HOTEL'S TRADEMARK/ADVERTISING:
This Agreement does not constitute a grant by the HOTEL to SUPPLIER of
the right to use any HOTEL trade names, trademarks or service marks
except as may be specifically authorized in writing by HOTEL. SUPPLIER
agrees that it will not use any verbal or printed advertising or
promotional material, brochures or printed matter using HOTEL'S Trade
name, Trademark or Service Mark without such material first being
reviewed and authorized in writing by HOTEL.
XII. NO AGENCY/INDEMNIFICATION:
SUPPLIER agrees to indemnify, defend and hold harmless HOTEL from any
and all claims of loss, damage, injury or expense arising out of the
terms of this Agreement, including but not limited to any claims
brought by SUPPLIER'S guest as to room allotments, room availability,
room rates, package inclusions, conditions and charges.
XIII. NON-PERFORMANCE:
If SUPPLIER fails to pay any invoice for services rendered, if SUPPLIER
fails to perform any of its other obligations under this Agreement, or
if SUPPLIER ceases doing business as a going concern, SUPPLIER will be
in default and HOTEl, at its option, may immediately terminate this
Agreement by giving written notice to SUPPLIER, in addition to pursuing
all other remedies available to it.
XIV. TERMINATION:
This Agreement may be canceled by either party upon thirty- (30) days
written notice.
XV. OVERBOOKING/FORCE MAJURE:
HOTEL shall attempt to provide all rooms as specified and committed to
the client, subject, however, to OVERBOOKING resulting from unusually
low number of no-shows and cancellations based on historical trends and
circumstances beyond the control of HOTEL, such as acts of God, riots,
labor strikes, civil commotion, or otherwise. Should HOTEL deem it
necessary to relocate a confirmed group, to the extent practicable,
HOTEL will notify client in advance of the situation requiring
relocation and attempt to book rooms at a comparable facility. Client
will be responsible to prepay HOTEL accepting the group.
<PAGE>
6
XVI. GENERAL:
This Agreement constitutes the entire Agreement between HOTEL and
SUPPLIER. All prior or contemporaneous agreements or understandings,
written or oral, are superseded hereby and merged herein. This
Agreement may be modified only in writing, signed by both parties. The
Agreement shall be governed by the laws of the State of Nevada.
HOTEL SUPPLIER
RAMPARTS, INC., a LAS VEGAS RESERVATIONS SYSTEMS
Nevada Corporation 8951 West Sahara Ave. #100
Las Vegas, NV 89117
By: /s/ John Borla 9/3/98 By: /s/ Michael A. Reichartz
--------------------------- -------------------------
John Borla Michael A. Reichartz
Its: Director of Sales Its: Vice-President Marketing
By: /s/ Dick Sparks 9/3/98
---------------------------
Dick Sparks
Its: Sales Manager
<PAGE>
LUXOR LAS VEGAS
1999
Las Vegas Reservations Systems
Exhibit A
<TABLE>
<CAPTION>
Run-of-House Run-of-House Mini-Suites Mini-Suites
Room Rates Room Blocks Room Rates Room Blocks
Sun-Thur Fri & Sat Sun-Thur Fri & Sat Sun - Thur Fri & Sat Sun - Thur Fri & Sat
<S> <C> <C> <C> <C> <C> <C> <C> <C>
JAN.3-6 [*] [*] [*] [*] [*] [*] [*] [*]
JAN.7-9 CES [*] [*] [*] [*] [*] [*] [*] [*]
JAN.10-FEB.11 [*] [*] [*] [*] [*] [*] [*] [*]
FEB.12-14 PRES. DAY [*] [*] [*] [*] [*] [*] [*] [*]
FEB.15-28 [*] [*] [*] [*] [*] [*] [*] [*]
MAR.1-4 MAGIC [*] [*] [*] [*] [*] [*] [*] [*]
MAR.5-20 [*] [*] [*] [*] [*] [*] [*] [*]
MAR.21-27 CON EXPO [*] [*] [*] [*] [*] [*] [*] [*]
MAR.28-APR.17 [*] [*] [*] [*] [*] [*] [*] [*]
APR.18-21 NAB [*] [*] [*] [*] [*] [*] [*] [*]
APR.22-MAY 27 [*] [*] [*] [*] [*] [*] [*] [*]
MAY 28-30 MEMORIAL DAY [*] [*] [*] [*] [*] [*] [*] [*]
MAY 31-SEP.2 [*] [*] [*] [*] [*] [*] [*] [*]
SEP.3-5 LABOR DAY [*] [*] [*] [*] [*] [*] [*] [*]
SEP.6-OCT.7 [*] [*] [*] [*] [*] [*] [*] [*]
OCT.8-10 COLUMBUS DAY [*] [*] [*] [*] [*] [*] [*] [*]
OCT.11-NOV.13 [*] [*] [*] [*] [*] [*] [*] [*]
NOV.14-17 COMDEX [*] [*] [*] [*] [*] [*] [*] [*]
NOV.18 [*] [*] [*] [*] [*] [*] [*] [*]
NOV.19-DEC.11 [*] [*] [*] [*] [*] [*] [*] [*]
DEC.12-23 [*] [*] [*] [*] [*] [*] [*] [*]
DEC.24-26 XMAS HOLIDAY [*] [*] [*] [*] [*] [*] [*] [*]
DEC.27-30 [*] [*] [*] [*] [*] [*] [*] [*]
DEC.31-JAN. 2 NEW YEARS [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
<PAGE>
Exhibit 10.11
CONFIDENTIAL
[*]: CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONTRACT BULK FARE AND MARKETING AGREEMENT
This Agreement made this 22nd day of October, 1998 by and between AMERICAN
AIRLINES, INC. ("American"), having its principal place of business at 700 DFW
Business Center North, 4th Floor MD 1304, DFW Airport, TX 75261 and
TRAVELSCAPE.COM ("Contractor"), having its principal place of business at 8951
West Sahara Avenue, Las Vegas, NV 89117.
1. The term of this Agreement shall be for travel from January 1, 1998
through March 31, 2000, unless otherwise indicated on the Attachments,
provided, however, that either party may terminate this Agreement upon
fourteen (14) days written notice to the other party. If American
terminates or reduces service to any city that is covered by the
Agreement, the Agreement shall be automatically amended to exclude such
city or to reflect such reduction, effective on the date of termination
or reduction, without liability to any party, and the Agreement will
continue in full force and effect as to the cities and service not
affected by such termination or reduction as described in the
attachments.
2. During the term of this Agreement, American agrees to offer certain
Bulk fares (the Bulk Fares) to Contractor for air transportation
services, and Contractor agrees to pay American for such services in
accordance with those Bulk Fares. The Bulk Fares for each market as
well as the terms, conditions and applicable travel period covered by
the Agreement are set forth on the Attachments. Contractor agrees to
abide by the ticketing rules and restrictions described in the
Attachments, issue tickets on standard ticket stock plated on American
(001) and remit payment through the Airline Reporting Corporation.
Contractor agrees to utilize the Bulk Fares in assembling, promoting
and selling certain tour packages (the Tour Package) featuring air
transportation on American and ground arrangements. American reserves
the right to change the Bulk Fares upon fourteen (14) days written
notice. Contractor agrees to pay the new fare for all seats ticketed on
or after the effective date of the new fares.
3. Resale by agent of air only tickets issued under this Agreement is
prohibited. Disclosure to a third party or advertisements of airfares
independently issued under this program will result in forfeiture of
the Agreement.
4. Contractor agrees to provide to American, copies of its promotional
materials which describe the tour package to be sold in conjunction
with the bulk fares listed on Attachment A upon signing this Agreement.
Failure to provide American with copies of such promotional materials
will result in immediate termination of this Agreement.
5. Contractor acknowledges that the telephone and tracking number(s)
listed below will be inserted into all Passenger Name Records (PNR) to
ensure compliance with the conditions of this Agreement.
6. This Agreement shall not be valid and binding upon the parties hereto
until counter-signed by the American Airlines Leisure Sales Manager.
7. Contractor acknowledges that he has read and understands the Standard
Terms and Conditions attached hereto as Exhibit I and agrees to be
bound thereby.
8. This Agreement supersedes all previous Contract Bulk Agreements.
9. Renewal of this Agreement is contingent upon, but not limited to, the
achievement of the minimum total passenger production of 2500
qualifying round-trip bulk passengers per year.
AMERICAN AIRLINES, INC. TRAVELSCAPE.COM
/s/ Robyn Aniol /s/ Tim Poster
Robyn Aniol Tim Poster
Manager CEO
Leisure Programs ARC: 2954690
PCC: K7P4
Tracking #: 702-792-3811
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
EXHIBIT I
STANDARD TERMS AND CONDITIONS
Unless otherwise defined, each term used herein with its initial letter
capitalized has the meaning assigned to such term in the Marketing Agreement by
and between American and Contractor.
1. COMPLIANCE WITH APPLICABLE LAWS. Contractor represents to American
that, with respect to the Agreement and otherwise, Contractor is and throughout
the term of the Agreement shall remain in compliance with all applicable laws,
regulations and contractual arrangements governing its business that pertain to
the subject matter of the Agreement, including without limitation assembling,
promoting, offering and selling travel on American.
2. OPERATING PROCEDURES. Passengers traveling on American shall be
entitled to all of the privileges provided to scheduled service passengers
pursuant to American's Conditions of Carriage for domestic and overseas
passengers, including amenities if delayed, involuntary rerouting privileges,
and denied boarding compensation if oversold. In its dealings with passengers,
Contractor shall comply with the terms of American's Conditions of Carriage for
domestic and overseas passengers.
3. EXCLUSIVE PAYMENT Any commission payments made to Contractor for travel
covered by the Agreement shall be in lieu of and not in addition to all other
payments for the sale of such travel which Contractor might be entitled to
receive under any other agreement with American.
4. REFUNDS AND LIMITATIONS ON RESALE. (a) All refunds to passengers shall
be Contractor's responsibility. If Contractor fails to promptly make any refund
as required by its contract with passengers, American shall have the right but
not the obligation to make such refunds to passengers and collect such payments
from Contractor on demand. Contractor shall have the right to establish its own
refund policy, provided that such policy shall not be inconsistent with
American's Conditions of Carriage for domestic and overseas passengers. (b)
Travel on American cannot be resold by Contractor at any airport terminal served
by American or any American City Ticket Office location.
5. TERMINATION OR REDUCTION OF SERVICES. If the Agreement is terminated
prior to its expiration date, the Agreement shall only apply to tickets for
travel on American issued through the actual termination date. In the event that
American terminates or reduces service to any city or market that is covered by
this Agreement, then the Agreement shall be automatically amended to exclude
such city or reduce such service, effective on the date of termination or
reduction, without liability to any party, and the Agreement shall continue in
full force and effect as to the cities or markets not affected by such
termination or reduction. Further, American shall have the right to reduce or
eliminate space available to Contractor at the Bulk Fares to any city or market
upon written or electronic notice, effective on Contractor's receipt of such
notice, without liability to any party, and the Agreement shall continue in full
force and effect as to the cities and markets not so affected.
6. ADVERTISING. Contractor shall not be permitted to advertise the Bulk
Fares on a stand alone basis, and Contractor shall only advertise the Bulk Fares
in advertisements for the Tour Package that utilizes an overall Tour Package
price. Contractor agrees to feature American's service and logo prominently
whenever possible. Contractor agrees that prior to publication of such
promotional materials, the final proofs shall be submitted to American for
American's final approval. If such approval is given, Contractor agrees that no
change shall be made to such final proofs without first obtaining American's
approval.
7. BULK FARES TO BE USED ONLY WITH THE TOUR PACKAGE. Bulk Fares can only
be used in conjunction with the Tour Packages and in no event can Contractor
utilize the Bulk Fares in connection with company meetings, conventions and/or
other air only ad hoc groups. If Contractor uses the Bulk Fares in an improper
manner, Contractor shall be liable to American for the difference between the
Bulk Fare used and American's lowest applicable fare at time of ticketing, and
such amount shall be payable to American on demand. In addition, and without
affecting American's rights to receive such payment, improper use of the Bulk
Fares shall be cause for termination by American pursuant to paragraph 8 below.
<PAGE>
8. DEFAULT AND TERMINATION. (a) Either party may terminate the Agreement
for any reason or for no reason upon fourteen (14) days written notice to the
other party. In the event that either party defaults in the performance of the
terms and conditions of the Agreement, and such default continues for a period
of ten (10) days following written notice thereof from a non-defaulting party to
the defaulting party then the non-defaulting party may terminate the Agreement
and/or pursue any remedy available to it in Law or in equity. (b) If the
Agreement is terminated prior to its expiration date, the Agreement shall only
apply to tickets for travel on American issued through the termination date. (c)
In the event that Contractor merges into itself or acquires a controlling
interest in another company, or in the event that Contractor is acquired by or
merged into another company, or another company acquires a controlling interest
in Contractor, then American, at its option, may immediately terminate the
Agreement on written notice to Contractor.
9. A.R.C./I.A.T.A. AGENT. In the event of suspension or termination of a
Contractor's appointment as an approved A.R.C./I.A.T.A. agent, American shall
have the right to terminate the Agreement.
10. INDEMNIFICATION. (a) INDEMNIFICATION BY CONTRACTOR. Contractor agrees to
defend, indemnify and hold harmless American, its officers, directors, agents,
and employees from any and all liabilities, claims, suits, losses, fines,
penalties, damages, and expenses (including reasonable attorneys fees) arising
out of Contractor's negligence, Contractor's breach of any of the provisions of
the Agreement or any act or failure to act by Contractor in connection with the
sale of air travel on American, and/or any other service by Contractor or
promotional material distributed by Contractor. (b) INDEMNIFICATION BY AMERICAN.
American agrees to defend, indemnify and hold harmless Contractor, its officers,
directors, agents, and employees from and against any and all liabilities,
claims, suits, losses, fines, penalties, damages, and expenses (including
reasonable attorneys fees) arising out of American's negligence, American's
breach of any of the provisions of the Agreement or American's acts or failure
to act in connection with the air transportation provided by American under the
Agreement. (c) Each parties indemnity obligation shall continue where any such
liability is joint or concurrent, provided that under such circumstances the
indemnitor shall indemnify the indemnitee in proportion to its comparative share
of liability.
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
11. FORCE MAJEURE. American shall not have responsibility or liability to
Contractor for any loss, damage, delay or prevention of the completion of any
flight subject to the Agreement, resulting from any force majeure, including
without limitation, an Act of God, act of governmental authority, seizure under
local process, sanctions, quarantine restrictions, fire, fog, smog, flood,
weather, mechanical difficulties, riots or civil commotions, strikes, lockouts,
labor disputes, schedule changes , labor stoppage (whether resulting from
disputes between American and its employees or between other parties), war, or
hazards or dangers incident to a state of war, or any other acts, matters, or
things, whether or not of a similar nature, beyond the control of American. If
American is forced to cancel a flight for any of the above reasons, the
obligations of both parties will be proportionately reduced, i.e., American will
not be responsible for any costs associated with its failure to operate the
flight (other than as provided specifically in its Conditions of Carriage) and
Contractor will not be required to pay for any seats on the flight. Contractor's
total obligation will also be reduced pro tanto.
12. CONFIDENTIALITY. Contractor shall hold this Agreement and each and
every provision hereof in confidence and, except as is specifically provided
herein, shall not disclose by the terms hereof to any other person, firm,
organization, association or entity, of any and every kind, whether public,
private or governmental (local, municipal, state, provincial and/or federal),
for any reason, or at any time, without the prior written consent of American,
unless such disclosure is required by law or legal process relating to
proceedings between a party hereto and any third party. In the event of such
disclosure, the Agreement may be terminated immediately by American, without
notice, and American shall have the right to pursue any remedies available to it
in law or in equity.
13. RELATIONSHIP OF PARTIES. The relationship between Contractor and
American shall be that of independent contractors for all purposes hereunder and
neither party shall have the right to act as agent for the other. In no event
shall persons employed by either party be held or construed to be employees of
the other party. Notwithstanding the fact that Contractor has agreed to follow
certain procedures and instructions of American, American shall have no
supervisory power or control over any employees, agents or independent
contractors engaged by Contractor in connection with its performance hereunder.
14. TAXES. Contractor shall pay all federal, state and local taxes,
charges, duties, any public or private fees, charges or assessments levied on
Contractor under the laws of any country which result from or are: (i)
attributable to Contractor sale of travel on American or any income received by
it under the Agreement, or (ii) incurred in connection with or incidental to the
sale of travel on American insofar as the same is not expressly included in the
prices hereunder.
15. COMPLETE AGREEMENT: AMENDMENT. The Agreement and these Standard Terms
and Conditions represent the complete, final, and exclusive Agreement between
American and Contractor with respect to subject matter hereof, and may be
amended and/or supplemented by written notice by American.
16. ASSIGNMENT. Neither party to the Agreement shall transfer or assign the
Agreement, or any right or obligation thereunder, by operation of law or
otherwise, without the prior written consent of the other party except that
American, without consent of Contractor, may assign the Agreement and its rights
and obligations hereunder to any successor to its business. Upon any transfer or
assignment (whether voluntary or involuntary) of the Agreement not otherwise
permitted herein, the Agreement will automatically terminate.
17. WAIVER. A failure or delay by any party to the Agreement to require
strict performance or enforcement of any provision of the Agreement or a
previous waiver or for bearance by any party to any performance or provision
shall in no way be construed as a waiver or continuing waiver of any provision
of the Agreement by that party.
18. SEVERABILITY. In the event any one or more of the provisions of the
Agreement shall for any reason be held to be invalid, illegal, or unenforceable,
the remaining provisions of the Agreement shall be unimpaired, and the invalid,
illegal, or unenforceable provisions shall be replaced by a mutually acceptable
and valid provision which comes closest to the intention of the parties
underlying the invalid, illegal, or unenforceable provision.
<PAGE>
19. BOOKS AND RECORDS. Contractor shall at all times keep complete and
accurate books, records and accounts from which American can determine the
actual number of seats sold by Contractor. The books, records, and accounts of
Contractor pertinent to the Agreement shall be retained for a period of at least
two (2) years after the expiration or other termination of the Agreement and
shall, at all reasonable times, be accessible to and open for inspection,
examination, audit and copying by American.
20. HEADINGS. The headings in the Agreement and these Standard Terms and
Conditions are for purposes of reference only and shall not in any way limit or
otherwise affect the meaning or interpretation of any of the terms thereof.
21. GOVERNING LAW. The Agreement shall be governed by and interpreted
pursuant to the substantive laws of the State of Texas without giving effect to
the principles of conflicts of law of such jurisdiction.
22. NOTICES. Any notices under the Agreement shall be in writing, and shall
be delivered in person, by courier, by electronic telecommunication or by United
States mail, addressed to each party at the address set forth in the Agreement,
or as may be designated from time to time by the parties.
23. SURRENDER OF SEATS DURING CRITICAL DEMAND. American may request that
Contractor surrender seats held when flights experience critical demand.
Contractor agrees to either release the reservation or confirm that it has been
ticketed. American reserves the right to demand payment in full for the seats
held as a condition for not requiring Contractor to surrender such space.
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
AMERICANAIRLINES -Registered Trademark-
SOMETHING SPECIAL IN THE AIR.
LEISURE SUPPORT CENTER
OPEN 7:00 A.M.-6:00 P.M. CT MONDAY-FRIDAY
PHONE 972-425-6397 FAX 972-425-7064
URGENT AFTER HOURS 800-433-1790 (RESERVATIONS)
10 WHOLESALE SPECIALISTS DEDICATED TO HELPING YOU SELL
AMERICAN AIRLINES AND ASSIST YOU WITH THE FOLLOWING:
- AD-HOC GROUP QUEUE PROCESSING
- WAITLIST QUEUE PROCESSING
- CUSTOMER SERVICE ISSUES
- BULK FARE PRICING, ROUTING INQUIRIES
QUEUE DIRECTLY TO THE LEISURE SUPPORT CENTER USING THE
FOLLOWING QUEUES:
- ZWH 92 - ASSISTANCE WITH SCHEDULE CHANGES OR
MARRIED CONNECTIONS
- ZWH 99 - GROUP REQUESTS OF 10 OR MORE PASSENGERS
- YMK 57 - INDIVIDUAL PASSENGER REQUESTS
- ZWH 101 - SUPERVISOR APPEAL QUEUE
ESTIMATED PROCESSING TIME IS 24 HOURS; 48 HOURS FOR SPECIAL YIELD MANAGEMENT
CONSIDERATION. FOR URGENT REQUESTS THAT REQUIRE AN IMMEDIATE RESPONSE, CALL THE
LEISURE SUPPORT CENTER.
ROUTE AD-HOC GROUP DEPOSITS TO:
OVERNIGHT ADDRESS MAILING ADDRESS
AMERICAN AIRLINES, INC. AMERICAN AIRLINES, INC.
LEISURE SUPPORT CENTER LEISURE SUPPORT CENTER
ATTN - DON RATTAN ATTN - DON RATTAN
700 DFW BUSINESS CENTER NORTH MD 1304 DFW, P.O. BOX 619047
4TH. FLOOR, MD 1304 DFW DFW BUSINESS CENTER NORTH
DFW AIRPORT, TX 75261 DFW AIRPORT, TX 75261-9047
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
EXHIBIT II
WHOLESALE PROCEDURES
As a preferred account of American Airlines, the Leisure Support Center is
available to assist you in the management of Bulk Fare inventories held on
American's flights. The Leisure Support Center will be able to help with space
requests, SABRE formats, time limit procedures, general passenger services and
information.
HOURS OF OPERATION ARE: 7:00 A.M. - 7:00 P.M. Central Time
Monday - Friday (Closed Holidays)
TELEPHONE CONTACT: (972) 425-6397
FAX: (972) 425-7064
SABRE ACCOUNTS INDIVIDUAL SPACE REQUESTS
Contractor may free-sell a maximum of 9 seats per flight, with names from city
pair availability using the Bulk Fare inventory class code (Z) as long as the
bulk inventory appears in the city pair. Confirming 10 or more seats on any one
flight without prior authorization from the Leisure Support Center will result
in the cancellation of all space booked and termination of Contractor's
wholesale Agreement. Contractor may request groups by queuing the request to the
Leisure Support Center as outlined in Attachment B Ad Hoc Group Space
Provisions.
Requests for individual space which shows sold out in the Bulk class of service
(Z), may be queued to the Leisure Support Center provided (V) inventory reflects
a number of seats equal to or greater than the number of seats Contractor is
requesting. Availability in (V) inventory does not guarantee that Contractor's
requests for space will be confirmed in the Bulk class of service (Z).
Individual space must be requested using a flight number and a DS action code as
outlined below.
EXAMPLE: A request for flight 621/15 MAY CITYPAIR using Z class for a party of
2.
1. Use a corporate name field to identify the PNR. i.e.
-C/2 WHOLESALE TRAVEL
2. Desire requested flight segments using a DS action code. i.e.
0621Z15MAY CITYPAIR DS2
3. Add 5 Remarks line - 5H-For all changes see N*Wholesale.
4. Complete the PNR and queue PNR to YMK57/11. i.e. QP/YMK57/11
Please be aware that PNRs built with only DS segments can be retrieved by using
the waitlist entry (*L#FLT NUMBER/DATE-NAME).
Under no circumstances should you HK an alternate class of service when the Bulk
Fare inventory is not available in anticipation of having the seats converted to
the Bulk Fare inventory. These requests will not be processed and the alternate
class of service will be cancelled.
The Leisure Support Center will evaluate your request and respond to you via
your urgent queue, Queue O.
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
EXHIBIT III
CONTRACT BULK TICKETING PROCEDURES
VALID FOR ROUND-TRIP TRANSPORTATION FROM THE U.S. TO THE CITIES DESIGNATED IN
ATTACMENT A OF THIS AGREEMENT, TICKETED ON STANDARD TICKET STOCK PLATED TO
AMERICAN (001). TICKETING ENTRIES ARE TO BE AS FOLLOWS:
<TABLE>
<S> <C>
NAME FIELD: PASSENGER NAME
AADVANTAGE NUMBER: PASSENGER's AADVANTAGE NUMBER
(NOTE: MILEAGE IS ACCRUED FOR THE AADVANTAGE PROGRAM FOR BULK FARES)
ENDORSEMENT BOX: VALID AA ONLY, NON-REFUNDABLE, NON-ENDORSABLE.
ROUTING: IN ACCORDANCE WITH SPACE CONFIRMED ON AMERICAN AIRLINES/AMERICAN EAGLE. NO
BACKTRACKING PERMITTED.
CARRIER: VALID ONLY ON AMERICAN AIRLINES/AMERICAN EAGLE
FLIGHT: APPROPRIATE FLIGHT NUMBERS FOR PASSENGER's ROUTING
CLASS OF SERVICE: APPLICABLE INVENTORY AS OUTLINED IATTACHMENT A
DATE: DATE FOR EACH SCHEDULED DEPARTURE
TIME: TIME FOR EACH SCHEDULED DEPARTURE
STATUS: OK
FARE BASIS: AS APPLICABLE FROM ATTACHMENT A
NOT VALID BEFORE: DATE OF ORIGINATION TRAVEL (1ST SEGMENT)
NOT VALID AFTER: DATE OF RETURN TRAVEL (LAST SEGMENT)
PASSENGER COUPON/FARE: FARE BOX TO STATE: $0.00
PASSENGER COUPON/TAX: TAX BOX TO STATE: Applicable taxes
AUDITOR/AGENT COUPON/FARE: AS APPLICABLE (PER ATTACHMENT A)
AUDITOR/AGENT COUPON/TAX: AS APPLICABLE (PER ATTACHMENT A)
FOP BOX: APPLICABLE FORM OF PAYMENT. REFUND ONLY TO ISSUING AGENCY.
COMMISSION BOX: APPLICABLE COMMISSION PERCENTAGE-AGT/AUDITORS CPN ONLY
</TABLE>
FARES AND TICKETING FOR SABRE AUTOMATED ACCOUNTS
FARE DISPLAY, BOOKING AND AUTO TICKETING ARE AVAILABLE IN SABRE ONCE YOUR SABRE
SET IS UPDATED FOR CONTRACT BULK FARES AND TICKETING.
FARE QUOTES ARE AVAILABLE BY USING THE (CB) FARE CODE ENTRY., (I.E.: FQ CITYPAIR
DATE CB)
ITINERARY PRICING IS AVAILABLE BY USING THE (YCB) PASSENGER CODE, (I.E.: WPPYCB)
AUTOTICKETING IS AVAILABLE FOR THOSE ACCOUNTS WITH ATB TICKET STOCK AND ATB
TICKET PRINTERS ONLY. TICKETING IS AVAILABLE USING THE (YCB) PASSENGER CODE.
IE........W#PYCB#..............FOLLOWED BY NORMAL TICKETING ENTRIES SUCH AS FORM
OF PAYMENT, COMMISSION AND ANY APPLICABLE ENDORSEMENTS.
SABRE AUTOMATED ACCOUNTS WITHOUT ATB STOCK/ATB PRINTER USING TRANSITIONAL ARC
STOCK SHOULD PHASE IV TICKETS AS FOLLOWS. CREATE YOUR PHASE IV TICKET SHELL WITH
THE PYCB PASSENGER TYPE.....W#PYCB. TO PHASE IV TICKETS SO THAT 0.00 APPEARS IN
THE BASE, TAX AND TOTAL BOX (TO AVOID THE WORD (FREE) FROM APPEARING) IS AS
FOLLOWS.....W#1#Y///. THE 3 SLASHES FOLLOWING THE Y WILL PUT 0.00 IN THE BASE,
TAX TOTAL BOX ON THE TICKET. THEN CONTINUE WITH NORMAL PHASE IV ENTRIES AND
FORMATS.
NOTE: ALL TICKETS ARE SUBJECT TO AN AMERICAN AIRLINES AUDIT.
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
ATTACHMENT B
AD HOC GROUP SPACE PROVISIONS WITH A DEPOSIT
1. AD HOC GROUP SPACE. The Agreement shall include an ad hoc group space
arrangement between American and Contractor on the terms and conditions
set forth on this ATTACHMENT.
2. OPERATING PROCEDURES FOR AD HOC GROUP SPACE. Requests for ad hoc groups
of 10 or more passengers are permitted at the contracted Bulk air fare
in only those markets outlined in Attachment A. Confirmations of
individual passengers totaling 10 or more on one flight will be
considered a group and subject to deposit and associated rules. Bulk
Fares are to be utilized when assembling, promoting and selling certain
tour packages (the Tour Package) featuring air transportation on
American and ground arrangements for the minimum length of stay.
Confirming 10 or more seats on any one flight without prior
authorization from the Leisure Support Center will result in the
cancellation of all space booked and termination of your wholesale
Agreement.
3. SABRE ACCOUNTS GROUP REQUEST PROCEDURES
Ad hoc group space should be requested using a flight number and a DS
action code as outlined below.
EXAMPLE: A request for a group of 20 originating on flight 369 on June
1 using the Z Bulk Fare.
Use a corporate name field to identify the PNR. i.e. -C/20 WHOLESALE
TRAVEL
Desire requested flights/segments using a DS action code. i.e.
...0369Z1JUNCITYPAIRDS20
Add Remarks line in PNR showing the fare basis code. ie...
ZLCBYY PLUS APPLIC TAXES
Add Remarks line in PNR stating- Refer to N*WHOLESALE for procedures
COMPLETED EXAMPLE:
1. C/20-20WHOLESALE TRAVEL
1. 369Z 01JUN Q CITYPAIR DS20 530P 1010A
2. 270Z 15JUN Q CITYPAIR DS20 1035A 215P
REMARKS
1. RT ZLCBYY PLUS APPLIC TAXES
2. Refer to N*WHOLESALE for procedures.
- Complete the PNR and queue PNR to ZWH99/15. ie...QP/ZWH99/15
Please be aware that PNRs built with only DS segments can be retrieved by using
the waitlist entry (*L#FLT NUMBER/DATE-CORP. NAME).
AVAILABILITY OF V OR Z INVENTORY DOES NOT GUARANTEE THAT ALL GROUP
REQUESTS WILL BE CONFIRMED.
The PNR shall be considered for purposes of the Agreement as part of
this ATTACHMENT, and the number of seats blocked in the PNR shall,
unless the number of seats is subsequently changed by mutual consent,
constitute the Allotment of ad hoc group space for Contractor under the
Agreement. Contractor agrees to advise the Leisure Support Center of
passenger names to be added to the PNR, 30 days prior to departure. All
no name space will be automatically cancelled at 4:00 P.M. Central
Time, 30 days prior to departure. If the 30 day final for names falls
on a Saturday or Sunday, the final for names will be due the previous
Friday. If the final for names falls on a Holiday or any day with
suspended mail service, names will be due on the last business day
prior to the final due date.
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
4. BOOKING 30 DAYS OR MORE PRIOR TO DEPARTURE A deposit, as detailed in
this attachment, must be submitted by Contractor and received by
American within 30 days of confirmation or 30 days prior to departure,
whichever comes first. If the deposit is not received prior to the due
date, American will automatically cancel space at 4:00 P.M. Central
Time, 30 days after confirmation or 30 days prior to departure,
whichever comes first. Upon receipt of the deposit, the Leisure Support
Center will add remarks in PNR indicating the deposit has been received
and space is to be held per Contractor. Contractor is held liable for
any liquidated damages incurred for each ad-hoc group held more than 30
days after confirmation of space or 30 days prior to departure,
whichever comes first. In lieu of any liable damages for each ad-hoc
group, Contractor may issue bulk tickets against all space held and
submit passenger names and ticket numbers within 30 days of
confirmation or 30 days prior to departure, whichever comes first. It
is Contractor's responsibility to ensure all action taken by the
Leisure Support Center is properly added by accessing SABRE. Failure to
comply with these procedures will result in the cancellation of space
booked.
5. BOOKING WITHIN 30 DAYS OF DEPARTURE Group requests within 30 days of
departure will be accepted with passenger names and will be subject to
Yield Management guidelines for group availability. If approved,
ticketing is required by 4:00 P.M. Central Time one day after
confirmation is received. Ticket numbers must be documented in the PNR
or the group space will be automatically cancelled at 4:00 P.M. Central
Time one day after confirmation. If the ticketing date falls on a
Saturday or Sunday, ticketing and PNR documentation must take place the
following business day. Ticketing and PNR documentation due on a
Holiday, or any day with suspended mail service will be due on the
following business day after the ticketing due date.
6. DEPOSIT REQUIREMENTS FOR AD HOC GROUP SPACE Contractor agrees to submit
to American Airlines a deposit of USD $40.00 per seat, within 30 days
of confirmation of ad hoc group space. If the due date falls on a
Saturday or Sunday, the deposit will be due the previous Friday.
Deposits due on a Holiday, or any day with suspended mail service, will
be due on the last business day prior to the deposit due date. Mail
checks or MCO payable to American Airlines, Inc. to:
MAIL PAYMENT GUARANTEE TO:
AMERICAN AIRLINES
DON RATTAN
MANAGER, LEISURE SUPPORT CENTER
P.O. BOX 619047
MD 1304 DFW
DALLAS/FT. WORTH AIRPORT, TX 75261-9047
FEDERAL EXPRESS ADDRESS: 700 DFW BUSINESS CENTER NORTH
4TH FLOOR MD 1304
DFW AIRPORT, TX 75261
MUST REFERENCE PNR NUMBER ON THE CHECK OR MCO FOR PROPER DOCUMENTATION.
If Contractor fails to submit the deposit, the ad hoc group space will
be cancelled at 4:00 P.M. Central Time on the deposit due date. It is
the Contractor's responsibility to ensure the deposit has been received
by American by accessing SABRE.
7. SURRENDER OF AD HOC GROUP ALLOTMENT DURING CRITICAL DEMAND. American
may request that Contractor surrender the allotment when flights
experience critical demand. Contractor agrees to either release the
allotment or confirm that it has been ticketed. American reserves the
right to demand payment in full for the allotment as a condition for
not requiring Contractor to surrender such space.
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
8. CHANGES OR CANCELLATIONS Contractor expressly agrees that the PNR
history contained in American's SABRE Reservations system for each PNR
as provided herein, shall be regarded as the final and official record
to be used to evaluate Contractor's performance under the Agreement.
Contractor may, upon written or verbal notice, cancel or change subject
to the following provisions as liquidated damages:
DEPOSIT
a) up to 61 days prior to departure Upon receipt of the deposit,
cancellations up to 61 days prior to departure will result in
a $10.00 per seat fee. Changes are allowed for the group as a
whole with no fee as long as the destination city does not
change and travel dates are within 3 days of the original
dates booked. Voluntary changes to the destination city or
travel dates outside 3 days will be considered a cancellation
and will result in a $10.00 per seat fee.
b) 60-30 days prior to departure Contractor agrees to utilize 90%
of the space held at 60 days prior to departure or pay a fee
of $40.00 per seat below the required minimum. All voluntary
changes within 60 days of departure will be considered a
cancellation.
c) within 30 days of departure Contractor agrees to utilize 100%
of the space held at 30 days prior to departure or pay a fee
of $40.00 per seat. Passenger Names are required.
For purposes of this Agreement, a reservation will be deemed to be
cancelled by Contractor on the date notice of such cancellation is
received by American Airlines. Utilization fees assessed are based on
each separate ad-hoc group.
9. DEPOSIT REFUNDS Deposit, less fees if applicable, will be automatically
refunded within approximately 30 business days following the travel
completion date. Any fees assessed will be deducted from the deposit.
10. FARE/INVENTORY CONVERSIONS Conversions to other fare types will result
in cancellation of ad hoc contract and will be subject to any
cancellations as outlined above.
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
ATTACHMENT C
"INSTANT PURCHASE WAIVER"
American will "waive" the instant purchase requirement on select published sale
fares that undercut your contracted bulk fares outlined in this agreement. This
"waiver" is only applicable to the markets outlined and contracted in
"Attachment A" of your Contract Bulk Fare and Marketing Agreement. The "waiver"
may be used as a sell-up when "Z" inventory is not available providing the
inventory for the sale fares is available.
INSTANT PURCHASE
The instant purchase (24hr) rule will be waived on published sale fares booked
in the inventories as follows. You must be contracted with a bulk agreement for
the entities listed to avoid debit memos. Canada/Hawaii/Domestic U.S. - "M" and
"K". Mexico - "M". Caribbean - "K".
ALL RESERVATIONS MUST ADHERE TO THE TICKETING DEADLINE INDICATED IN THE SALE
FARE RULES. THIS "WAIVER" IS FOR THE 24HR INSTANT PURCHASE ONLY AND DOES NOT
COVER ANY CANCELLATION, INCREASE OR CHANGE IN FARE AMOUNT.
INSTANT PURCHASE WAIVER CODE: A9798LS
The Instant Purchase Waiver code must be entered in the Tour Code Box of the
ticket and in Historical Remarks (5H-) of the Passenger Name Record (PNR) as
referenced below:
SABRE FORMAT
When claiming tour commission in conjunction with the Instant Purchase
Waiver, the AUTHORIZATION CODE MUST BE LISTED FIRST, followed by the
letters "IT" and the first five digits of the tour code. The Instant
Purchase waiver will require Sabre phase 3.5 ticketing entries.
The following is a sample Sabre 3.5 ticketing entry:
W#QF are Base Code#FOP#UA9798LSIT----#KP, etc.,........(remaining
ticketing entries). The tour code box is limited to a total of 14
characters.
OTHER CRS SYSTEMS
For those of you on other CRS systems, please contact your applicable
CRS Help Desk for ticketing formats.
PASSENGER NAME RECORD FORMAT
Update the PNR remarks field as shown: 5H-IPW auth A9798LS
EXPIRATION DATE
All travel must commence no later than end of contract term.
COMMISSION
Standard publish commission applies.
BOOKING CLASS
All fares beginning with "M/K" for Canada/Hawaii/Domestic U.S.. "M" for Mexico.
"K" for Caribbean.
CONVERSIONS
Inventory conversions are not permitted.
CONTRACT BULK BOOKINGS ALREADY TICKETED
American will permit Contractor to book sale fares provided inventory is
available. Cancellation fee as noted in the Contract Bulk fare rule will apply.
<PAGE>
CONTRACT BULK BOOKINGS NOT TICKETED
American will permit Contractor to book sale fares provided inventory is
available with no penalty.
Please ensure the appropriate Contract Bulk "Z" bookings are canceled.
FARE RULES
All other fare rules WILL apply.
TICKETING
All SABRE driven tickets must be issued through Phase 3.5 ticketing or Phase
IV'd by creating a Phase IV shell. Manual ticket issuance will be required
Tickets issued with waivers other than the instant purchase waiver listed above,
will be subject to debit memos for the difference between the sale fare
inventory and the amount of the applicable full "Y" fare.
TOUR REQUIREMENT
All contract bulk terms still apply, specially those relating to land tour
requirements, contracted markets and 001 plating for AA/AE flights only.
NOTE - all tickets are subject to an American Airlines audit.
ADHOC GROUP REQUESTS
The instant purchase waiver as stated above will apply for adhoc group requests.
For all other adhoc group procedures, please see "Attachment B" of your Contract
Bulk Fare and Marketing Agreement.
<PAGE>
CONTRACT BULK FARE AND MARKETING AGREEMENT
NET FARE INFORMATION ATTACHMENT
In 1999, select contract bulk fares will be non-commissionable and any tickets
issued that claim commission will be subject to debit memo. All ticketing, fare
quote and pricing will remain the same with the exception of commission. Your
current ticketing entries permit you to claim an agreed commission up-front,
even on fares that do not permit up-front commission. Those of you who ticket
directly out of SABRE will need to train and advise all reservations and
ticketing personnel that these fares are NET and that commission is not
included. In an effort to assist you with the change to NET fares, please be
guided by the following: AA commissionable fares include the letters "CB"
(Commissionable Bulk) in the 2nd/3rd or 3rd/4th position of the fare code. AA
NET fares include the letters "NT" (NET) in the 2nd/3rd or 3rd/4th position of
the fare basis code.
PROGRAMS THAT OVERLAP - All round-trip fare programs that combine 1998 fares
with 1999 levels, i.e. originate under the current commissionable bulk fares and
return with a NET fare, will be allowed full commission for the round-trip under
the current 1998 bulk rules and commission rates. All NET fare round-trip
programs that begin after the effective date of your new 1999 programs will be
non-commissionable.
NET FARE TICKET MARK-UP - Since select 1999 fares will be NET and not entitled
to commission, you may not mark-up your contract fares and "claim back your
mark-up" as commission on the ticket. Even though you are only claiming back
your mark-up, our system will debit this as a commission claimed against a NET
fare.
READ AND AGREED:
Name/Title
Company
<PAGE>
ATTACHMENT A
1999 U.S.A. CONTRACT BULK FARES
FARE RULES
<TABLE>
<S> <C>
FARE BASIS: ZNTZO99
COMMISSION: FARES ARE NET (NON-COMMISSIONALBE)
FARES: FARES ARE AVAILABLE IN SABRE. REFER TO SABRE ENTRY FQCTIYPAIRDATECB-AA
BOOKING CODE: Z
RES/TKTG: 3 DAYS PRIOR TO DEPARTURE
MINIMUM STAY: 3 DAYS IF ORGIN MONDAY THROUGH THURSDAY, SATURDAY, SUNDAY
2 DAYS IF ORGIN FRIDAY
MAXIMUM STAY: 45 DAYS
OPEN RETURN: NOT PERMITTED
STOPOVERS: NOT PERMITTED
OPEN JAW: SINGLE OPEN JAW PERMITTED AT EITHER ORIGIN OR DESTINATION
ACCOUNT NAME/ ACCOUNT NAME AND TELEPHONE NUMBER (AS LISTED IN AGREEMENT) MUST
TRACKING NUMBER: APPEAR IN THE CORPORATE NAME FIELD AND PHONE FIELD OF ALL PNR'S.
ROUTINGS: ROUTINGS APPLICABLE TO CONTRACTED FARES HAVE THE SAME RESTRICTIONS AS
PUBLISHED AA FARES BOOKED IN V/Q CLASS. MOST DIRECT ROUTING APPLIES.
APPLICATION: APPLIES FOR RT/SOJ TRANSPORTATION FROM POINTS IN THE U.S.
DAY OF WEEK: ZNTZO99: FARES APPLY EVERY DAY OF WEEK
GROUP REQUIREMENTS: GROUP TRAVEL IS PERMITTED AS OUTLINED IN THE AD-HOC GROUP PROCEDURES
ATTACHMENT IN YOUR CONTRACT.
TOUR REQUIREMENTS: FARE IS VALID ONLY WITH A PREPAID TOUR. TOUR MUST INCLUDE HOTEL/MOTEL
ACCOMMODATIONS FOR THE MINIMUM STAY OF THE TRIP.
MAY NOT BE USED IN CONJUNCTION WITH A CRUISE
BLACKOUT DATES: NOVEMBER 25 - NOVEMBER 30, 1999 AND DECEMBER 19, 1999 - JANUARY 03, 2000
FOR TRAVEL TO DEN/SLC TRAVEL NOT PERMITTED NOVEMBER 1, 1999 - APRIL 30
EXPIRATION DATE: MARCH 31, 2000. ALL TRAVEL MUST COMMENCE BY MARCH 31, 2000
DISCOUNTS: CHILDREN: NONE
INFANTS: 1 FREE INFANT PSGR UNDER 2 YRS OF AGE NOT OCCUPYING A SEAT WILL
BE PERMITTED WHEN ACCOMPANIED BY AN ADULT IN THE SAME COMPARTMENT.
TOUR CONDUCTORS/AGENT DISCOUNTS: NONE
SENIOR CITIZEN DISCOUNTS: NONE
CHANGES: CHANGES PRIOR TO TICKET ISSUANCE - PERMITTED.
CHANGES AFTER TICKET ISSUANCE - ORIGIN, RETURN OR CONTINUING
RESERVATIONS MAY BE CHANGED. REVALIDATION IS NOT PERMITTED, TICKET
MUST BE REISSUED BY AA OR CONTRACTOR ONLY AND WILL BE SUBJECT
TO A $75 ADMINISTRATIVE SERVICE CHARGE (ON CONTRACTOR REISSUE, $25
RETAINED BY CONTRACTOR, $50 NET PAID TO AA). THE NEW ITINERARY
MUST MEET THE ADVANCE RES/TKT, MIN/MAX STAY REQUIREMENTS OF THESE
FARES. APPLICABLE INVENTORY MUST BE AVAILABLE.
CHANGES AFTER DEPARTURE - DATE/TIME/CONNECTING POINTS ARE PERMITTED AT
ANY TIME BY AA OR CONTRACTOR ONLY AND WILL BE SUBJECT TO A $75
ADMINISTRATIVE SERVICE CHARGE (ON CONTRACTOR REISSUE, $25 RETAINED BY
CONTRACTOR, $50 NET PAID TO AA). THE NEW ITINERARY MUST MEET THE
ADVANCE RES/TKT, MIN/MAX STAY REQUIREMENTS OF THESE FARES. APPLICABLE
INVENTORY MUST BE AVAILABLE AND TICKETS MAY NOT BE REVALIDATED.
STANDBY - PERMITTED FOR PASSENGERS WITH CONFIRMED TICKETS ON
EARLIER/LATER SAME DAY FLIGHTS ON WHICH THESE FARES APPLY.
COMBINABILITY: FARES SOLD IN COMBINATION WITH THESE FARES MUST BE ISSUED ON SEPARATE
TICKETS. COMBINABLE WITH OTHER BULK FARES IN THE SAME MARKET ONLY.
CANCELLATION FEE: TICKETS ARE SUBJECT TO A $75.00 REFUND SERVICE CHARGE. REFUNDS MAY BE
PROCESSED THROUGH ARC PROVIDED THE SERVICE CHARGE/CANCELLATION
PENALTY IS DEDUCTED ON THE TICKET REPORT.
</TABLE>
FARES ARE ROUND TRIP USD AND INCLUDE 8% DOMESTIC U.S. TAX. FARES DO NOT INCLUDE
DOMESTIC SEGMENT TAXES, FUEL SURCHARGES OR PFC CHARGES THAT MAY APPLY OUT OF
SELECT AIRPORTS. PFC'S, SURCHARGES AND TAXES ARE SUBJECT TO CHANGE WITHOUT
NOTICE AND ARE NOT GUARANTEED UNDER CONTRACT. COLLECTION OF THESE ADDITIONAL
SURCHARGES BY ACCOUNT IS REQUIRED. FARES ARE NET (NON-COMMISSIONABLE).
<PAGE>
U.S. ZONE PROGRAM
JANUARY 1, 1999-MARCH 31, 2000
ORIGINATING DESTINATION ZONES
ZONES (RT NET)
<TABLE>
<CAPTION>
ZONE A ZONE B ZONE C ZONE D ZONE E ZONE F
FARE CODE ZNTZO99 ZNTZO99 ZNTZO99 ZNTZO99 ZNTZO99
<S> <C> <C> <C> <C> <C> <C>
A see Florida fare sheets [*] [*] [*] [*] [*]
B see Florida fare sheets [*] [*] [*] [*] [*]
C see Florida fare sheets [*] [*] [*] [*] [*]
D see Florida fare sheets [*] [*] [*] [*] [*]
E see Florida fare sheets [*] [*] [*] [*] [*]
F see Florida fare sheets [*] [*] [*] [*] [*]
</TABLE>
<TABLE>
<CAPTION>
ORIGIN ZONES: DESTINATION ZONES:
<S> <C>
ZONE A ZONE A
FL EYW/FLL/FMY/JAX/MIA/MTH/ORL/PBI/SRQ/TPA
ZONE B ZONE B
CT/DC/GA/MA/MD/NC/NH/NJ/NY/PA/RI/VA ATL/BOS/BWI/CLT/EWR/GSO/NYC/ORF/ORL/PHL/RDU/RIC/WAS
ZONE C ZONE C
IA/IL/IN/KS/KY/MI/MN/MO/NE/OH/TN/WI BNA/CHI/MEM/MKC/MSP/SDF/SGF/STL/TVC
ZONE D ZONE D
AL/AR/LA/MS/OK/TX AUS/BHM/BTR/DFW/ELP/HOU/HRL/HSV/JAN/LCH/MAF/MSY/SAT
/SHV
ZONE E ZONE E
CO/NM/UT/WY ABQ/*DEN/SLC* (*NOTE: VALID MAY 1 - OCTOBER 31,
1999)
ZONE F ZONE F
AZ/CA/NV/OR/WA LAS/LAX/PDX/PHX/PSP/RNO/SAN/SEA/SFO/SMF/TUS
</TABLE>
<PAGE>
ATTACHMENT A
1999 FLORIDA CONTRACT BULK FARES
FARE RULES
<TABLE>
<S> <C>
FARE BASIS: ZNTXF9/ZNTWF9
COMMISSION: FARES ARE NET (NON-COMMISSIONALBE)
FARES: FARES ARE AVAILABLE IN SABRE. REFER TO SABRE ENTRY FQCITYPAIRDA TECB-AA
BOOKING CODE: Z
RES/TKTG: 3 DAYS PRIOR TO DEPARTURE
MINIMUM STAY: 3 DAYS IF ORGIN MONDAY THROUGH THURSDAY, SATURDAY, SUNDAY
2 DAYS IF ORGIN FRIDAY
MAXIMUM STAY: 45 DAYS
OPEN RETURN: NOT PERMITTED
STOPOVERS: NOT PERMITTED
OPEN JAW: SINGLE OPEN JAW PERMITTED AT EITHER ORIGIN OR DESTINATION
ACCOUNT NAME/ ACCOUNT NAME AND TELEPHONE NUMBER (AS LISTED IN AGREEMENT) MUST
TRACKING NUMBER: APPEAR IN THE CORPORATE NAME FIELD AND PHONE FIELD OF ALL PNR'S.
ROUTINGS: ROUTINGS APPLICABLE TO CONTRACTED FARES HAVE THE SAME RESTRICTIONS AS
PUBLISHED AA FARES BOOKED IN V/Q CLASS. MOST DIRECT ROUTING APPLIES.
APPLICATION: APPLIES FOR RT/SOJ TRANSPORTATION FROM POINTS IN THE U.S. TO POINTS IN
FLORIDA.
DAY OF WEEK: ZNTWF9: FARES APPLY FRIDAY-SUNDAY.
ZNTXF9: FARES APPLY MONDAY-THURSDAY.
GROUP REQUIREMENTS: GROUP TRAVEL IS PERMITTED AS OUTLINED IN THE AD-HOC GROUP PROCEDURES
ATTACHMENT IN YOUR CONTRACT.
TOUR REQUIREMENTS: FARE IS VALID ONLY WITH A PREPAID TOUR, TOUR MUST INCLUDE HOTEL/MOTEL
ACCOMMODATIONS FOR THE MINIMUM STAY OF THE TRIP.
MAY NOT BE USED IN CONJUNCTION WITH A CRUISE
BLACKOUT DATES: NOVEMBER 25 - NOVEMBER 30, 1999 AND DECEMBER 19, 1999 - JANUARY 03, 2000
FOR TRAVEL TO DEN/DRO/COS/GUC/HDN/JAC/SLC NOT PERMITTED NOV. 1-APR 30
EXPIRATION DATE: MARCH 31, 2000. ALL TRAVEL MUST COMMENCE BY MARCH 31, 2000
DISCOUNTS: CHILDREN: CHILDREN 2 THRU 11 YEARS OF AGE WILL BE CHARGED 75% OF THE
APPLICABLE ADULT BULK FARE WHEN ACCOMPANIED BY A BULK FARE PAYING
ADULT IN THE SAME COMPARTMENT. A MAXIMUM OF 2 CHILDREN WILL BE
PERMITTED TO ACCOMPANY EACH PASSENGER PAYING THE ADULT FARE.
INFANTS: 1 FREE INFANT PSGR UNDER 2 YRS OF AGE NOT OCCUPYING A SEAT WILL
BE PERMITTED WHEN ACCOMPANIED BY AN ADULT IN THE SAME COMPARTMENT.
TOUR CONDUCTORS/AGENT DISCOUNTS: NONE
SENIOR CITIZEN DISCOUNTS: NONE
CHANGES: CHANGES PRIOR TO TICKET ISSUANCE - PERMITTED.
CHANGES AFTER TICKET ISSUANCE - ORIGIN, RETURN OR CONTINUING
RESERVATIONS MAY BE CHANGED. REVALIDATION IS NOT PERMITTED, TICKET
MUST BE REISSUED BY AA OR CONTRACTOR ONLY AND WILL BE SUBJECT
TO A $75 ADMINISTRATIVE SERVICE CHARGE (ON CONTRACTOR REISSUE, $25
RETAINED BY CONTRACTOR, $50 NET PAID TO AA). THE NEW ITINERARY
MUST MEET THE ADVANCE RES/TKT, MIN/MAX STAY REQUIREMENTS OF THESE
FARES. APPLICABLE INVENTORY MUST BE AVAILABLE.
CHANGES AFTER DEPARTURE - DATE/TIME/CONNECTING POINTS ARE PERMITTED AT
ANY TIME BY AA OR CONTRACTOR ONLY AND WILL BE SUBJECT TO A $75
ADMINISTRATIVE SERVICE CHARGE (ON CONTRACTOR REISSUE, $25 RETAINED BY
CONTRACTOR, $50 NET PAID TO AA). THE NEW ITINERARY MUST MEET THE
ADVANCE RES/TKT, MIN/MAX STAY REQUIREMENTS OF THESE FARES. APPLICABLE
INVENTORY MUST BE AVAILABLE AND TICKETS MAY NOT BE REVALIDATED.
STANDBY - PERMITTED FOR PASSENGERS WITH CONFIRMED TICKETS ON
EABLIER/LATER SAME DAY FLIGHTS ON WHICH THESE FARES APPLY.
COMBINABILITY: FARES SOLD IN COMBINATION WITH THESE FARES MUST BE ISSUED ON SEPARATE
TICKETS. COMBINABLE WITH OTHER BULK FARES IN THE SAME MARKET ONLY.
CANCELLATION FEE: TICKETS ARE SUBJECT TO A $75.00 REFUND SERVICE CHARGE. REFUNDS MAY BE
PROCESSED THROUGH ARC PROVIDED THE SERVICE CHARGE/CANCELLATION
PENALTY IS DEDUCTED ON THE TICKET REPORT.
</TABLE>
FARES ARE ROUND TRIP USD AND INCLUDE 8% DOMESTIC U.S. TAX. FARES DO NOT INCLUDE
DOMESTIC SEGMENT TAXES, FUEL SURCHARGES OR PFC CHARGES THAT MAY APPLY OUT OF
SELECT AIRPORTS. PFC'S, SURCHARGES AND TAXES ARE SUBJECT TO CHANGE WITHOUT
NOTICE AND ARE NOT GUARANTEED UNDER CONTRACT. COLLECTION OF THESE ADDITIONAL
SURCHARGES BY ACCOUNT IS REQUIRED. FARES ARE NET (NON-COMMISSIONABLE).
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - FLL
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
ABI [*] [*] JAC [*] [*]
ABQ [*] [*] JAN [*] [*]
ACT [*] [*] LAN [*] [*]
AEX [*] [*] LAS [*] [*]
AMA [*] [*] LAW [*] [*]
AUS [*] [*] LAX [*] [*]
AZO [*] [*] LBB [*] [*]
BFL [*] [*] LCH [*] [*]
BMI [*] [*] LFT [*] [*]
BOS [*] [*] LIT [*] [*]
BPT [*] [*] LRD [*] [*]
BTR [*] [*] LSE [*] [*]
BUR [*] [*] MAF [*] [*]
CHI [*] [*] MEM [*] [*]
CID [*] [*] MFE [*] [*]
CLD [*] [*] MKC [*] [*]
CLE [*] [*] MKE [*] [*]
CLL [*] [*] MLI [*] [*]
CMH [*] [*] MRY [*] [*]
CMI [*] [*] MSN [*] [*]
COS [*] [*] MSP [*] [*]
CRP [*] [*] MSY [*] [*]
CVG [*] [*] NYC [*] [*]
CWA [*] [*] OAK [*] [*]
DAY [*] [*] OKC [*] [*]
DBQ [*] [*] OMA [*] [*]
DEN [*] [*] ONT [*] [*]
DFW [*] [*] PDX [*] [*]
DSM [*] [*] PHX [*] [*]
DTT [*] [*] PIA [*] [*]
ELP [*] [*] PSP [*] [*]
EVV [*] [*] RNO [*] [*]
FAT [*] [*] RST [*] [*]
FSM [*] [*] SAN [*] [*]
FWA [*] [*] SAT [*] [*]
FYV [*] [*] SBA [*] [*]
GGG [*] [*] SBN [*] [*]
GRB [*] [*] SBP [*] [*]
GRR [*] [*] SEA [*] [*]
HAR [*] [*] SFO [*] [*]
HOU [*] [*] SGF [*] [*]
HRL [*] [*] SHV [*] [*]
ICT [*] [*] SJC [*] [*]
ILE [*] [*] SJT [*] [*]
IND [*] [*] SLC [*] [*]
</TABLE>
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - FLL
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
SMF [*] [*] TUL [*] [*]
SNA [*] [*] TUS [*] [*]
SPI [*] [*] TVC [*] [*]
SPS [*] [*] TXK [*] [*]
STL [*] [*] TYR [*] [*]
TOL [*] [*]
</TABLE>
FARES ARE RT NET USD AND NON-COMMISSIONABLE. FARES INCLUDE 8% U.S.
DOMESTIC TRANSPORTATION TAX BUT DO NOT INCLUDE U.S. SEGMENT TAXES
FUEL SURCHARGES, PFCS OR ANY OTHER SURCHARGES OR TAXES
THAT MAY APPLY. ABOVE TAXES, SURCHARGES AND FEES ARE SUBJECT TO
CHANGE WITHOUT NOTICE AND ARE NOT GUARANTEED UNDER CONTRACT.
COLLECTION OF THESE FEES BY ACCOUNT IS REQUIRED.
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - JAX
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
ABI [*] [*] JAC [*] [*]
ABQ [*] [*] LAN [*] [*]
ACT [*] [*] LAS [*] [*]
AEX [*] [*] LAW [*] [*]
AMA [*] [*] LAX [*] [*]
AUS [*] [*] LBB [*] [*]
AZO [*] [*] LCH [*] [*]
BDL [*] [*] LFT [*] [*]
BFL [*] [*] LRD [*] [*]
BMI [*] [*] LSE [*] [*]
BOS [*] [*] MAF [*] [*]
BPT [*] [*] MFE [*] [*]
BUR [*] [*] MKC [*] [*]
BWI [*] [*] MKE [*] [*]
CHI [*] [*] MLI [*] [*]
CID [*] [*] MRY [*] [*]
CLD [*] [*] MSN [*] [*]
CLE [*] [*] MSP [*] [*]
CLL [*] [*] MSY [*] [*]
COS [*] [*] NYC [*] [*]
CRP [*] [*] OAK [*] [*]
CWA [*] [*] OKC [*] [*]
DBQ [*] [*] OMA [*] [*]
DEN [*] [*] ONT [*] [*]
DFW [*] [*] PDX [*] [*]
DTT [*] [*] PHL [*] [*]
ELP [*] [*] PHX [*] [*]
EVV [*] [*] PSP [*] [*]
EWR [*] [*] RNO [*] [*]
FAT [*] [*] SAN [*] [*]
FSM [*] [*] SAT [*] [*]
FYV [*] [*] SBA [*] [*]
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
GGG [*] [*] SBN [*] [*]
GRB [*] [*] SBP [*] [*]
HOU [*] [*] SEA [*] [*]
HRL [*] [*] SFO [*] [*]
ICT [*] [*] SGF [*] [*]
ILE [*] [*] SHV [*] [*]
</TABLE>
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - JAX
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
SJC [*] [*] TOL [*] [*]
SJT [*] [*] TUL [*] [*]
SLC [*] [*] TUS [*] [*]
SMF [*] [*] TVC [*] [*]
SNA [*] [*] TXK [*] [*]
SPI [*] [*] TYR [*] [*]
SPS [*] [*] WAS [*] [*]
</TABLE>
FARES ARE RT NET USD AND NON-COMMISSIONABLE. FARES INCLUDE 8% U.S.
DOMESTIC TRANSPORTATION TAX BUT DO NOT INCLUDE U.S. SEGMENT TAXES
FUEL SURCHARGES, PFCS OR ANY OTHER SURCHARGES OR TAXES
THAT MAY APPLY. ABOVE TAXES, SURCHARGES AND FEES ARE SUBJECT TO
CHANGE WITHOUT NOTICE AND ARE NOT GUARANTEED UNDER CONTRACT.
COLLECTION OF THESE FEES BY ACCOUNT IS REQUIRED.
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - MIA
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
ABI [*] [*] HOU [*] [*]
ABQ [*] [*] HRL [*] [*]
ACT [*] [*] ICT [*] [*]
AEX [*] [*] ILE [*] [*]
ALB [*] [*] IND [*] [*]
AMA [*] [*] JAC [*] [*]
ATL [*] [*] LAN [*] [*]
AUS [*] [*] LAS [*] [*]
AZO [*] [*] LAW [*] [*]
BDL [*] [*] LAX [*] [*]
BFL [*] [*] LBB [*] [*]
BMI [*] [*] LCH [*] [*]
BNA [*] [*] LFT [*] [*]
BOS [*] [*] LIT [*] [*]
BPT [*] [*] LRD [*] [*]
BUF [*] [*] LSE [*] [*]
BUR [*] [*] MAF [*] [*]
BWI [*] [*] MFE [*] [*]
CHI [*] [*] MKC [*] [*]
CID [*] [*] MKE [*] [*]
CLD [*] [*] MLI [*] [*]
CLE [*] [*] MRY [*] [*]
CLL [*] [*] MSN [*] [*]
CMH [*] [*] MSP [*] [*]
CMI [*] [*] MSY [*] [*]
COS [*] [*] NYC [*] [*]
CRP [*] [*] OAK [*] [*]
CVG [*] [*] OKC [*] [*]
CWA [*] [*] OMA [*] [*]
DAY [*] [*] ONT [*] [*]
DBQ [*] [*] PDX [*] [*]
DEN [*] [*] PHL [*] [*]
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
DFW [*] [*] PHX [*] [*]
DSM [*] [*] PIA [*] [*]
DTT [*] [*] PIT [*] [*]
ELP [*] [*] PSP [*] [*]
EVV [*] [*] PVD [*] [*]
EWR [*] [*] RDU [*] [*]
FAT [*] [*] RNO [*] [*]
FSM [*] [*] ROC [*] [*]
FWA [*] [*] RST [*] [*]
FYV [*] [*] SAN [*] [*]
GGG [*] [*] SAT [*] [*]
GRB [*] [*] SBA [*] [*]
GRR [*] [*] SBN [*] [*]
</TABLE>
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - MIA
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
SBP [*] [*] SPS [*] [*]
SEA [*] [*] STL [*] [*]
SFO [*] [*] SYR [*] [*]
SGF [*] [*] TOL [*] [*]
SHV [*] [*] TUL [*] [*]
SJC [*] [*] TUS [*] [*]
SJT [*] [*] TVC [*] [*]
SLC [*] [*] TXK [*] [*]
SMF [*] [*] TYR [*] [*]
SNA [*] [*] WAS [*] [*]
SPI [*] [*]
</TABLE>
FARES ARE RT NET USD AND NON-COMMISSIONABLE. FARES INCLUDE 8% U.S.
DOMESTIC TRANSPORTATION TAX BUT DO NOT INCLUDE U.S. SEGMENT TAXES
FUEL SURCHARGES, PFCS OR ANY OTHER SURCHARGES OR TAXES
THAT MAY APPLY. ABOVE TAXES, SURCHARGES AND FEES ARE SUBJECT TO
CHANGE WITHOUT NOTICE AND ARE NOT GUARANTEED UNDER CONTRACT.
COLLECTION OF THESE FEES BY ACCOUNT IS REQUIRED.
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - ORL
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
ABI [*] [*] ICT [*] [*]
ABQ [*] [*] ILE [*] [*]
ACT [*] [*] IND [*] [*]
AEX [*] [*] JAC [*] [*]
AMA [*] [*] LAN [*] [*]
AUS [*] [*] LAS [*] [*]
AZO [*] [*] LAW [*] [*]
BDL [*] [*] LAX [*] [*]
BFL [*] [*] LBB [*] [*]
BMI [*] [*] LCH [*] [*]
BNA [*] [*] LFT [*] [*]
BOS [*] [*] LIT [*] [*]
BPT [*] [*] LRD [*] [*]
BUR [*] [*] LSE [*] [*]
BWI [*] [*] MAF [*] [*]
CHI [*] [*] MFE [*] [*]
CID [*] [*] MKC [*] [*]
CLD [*] [*] MKE [*] [*]
CLE [*] [*] MLI [*] [*]
CLL [*] [*] MRY [*] [*]
CMH [*] [*] MSN [*] [*]
CMI [*] [*] MSP [*] [*]
COS [*] [*] MSY [*] [*]
CRP [*] [*] NYC [*] [*]
CVG [*] [*] OAK [*] [*]
CWA [*] [*] OKC [*] [*]
DAY [*] [*] OMA [*] [*]
DBQ [*] [*] ONT [*] [*]
DEN [*] [*] PDX [*] [*]
DFW [*] [*] PHL [*] [*]
DSM [*] [*] PHX [*] [*]
DTT [*] [*] PIA [*] [*]
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
ELP [*] [*] PSP [*] [*]
EVV [*] [*] RDU [*] [*]
EWR [*] [*] RNO [*] [*]
FAT [*] [*] RST [*] [*]
FSM [*] [*] SAN [*] [*]
FWA [*] [*] SAT [*] [*]
FYV [*] [*] SBA [*] [*]
GGG [*] [*] SBN [*] [*]
GRB [*] [*] SBP [*] [*]
GRR [*] [*] SEA [*] [*]
HOU [*] [*] SFO [*] [*]
HRL [*] [*] SGF [*] [*]
HSV [*] [*] SHV [*] [*]
</TABLE>
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - ORL
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
SJC [*] [*] TOL [*] [*]
SJT [*] [*] TUL [*] [*]
SLC [*] [*] TUS [*] [*]
SMF [*] [*] TVC [*] [*]
SNA [*] [*] TXK [*] [*]
SPI [*] [*] TYR [*] [*]
SPS [*] [*] WAS [*] [*]
STL [*] [*]
</TABLE>
FARES ARE RT NET USD AND NON-COMMISSIONABLE. FARES INCLUDE 8% U.S.
DOMESTIC TRANSPORTATION TAX BUT DO NOT INCLUDE U.S. SEGMENT TAXES
FUEL SURCHARGES, PFCS OR ANY OTHER SURCHARGES OR TAXES
THAT MAY APPLY. ABOVE TAXES, SURCHARGES AND FEES ARE SUBJECT TO
CHANGE WITHOUT NOTICE AND ARE NOT GUARANTEED UNDER CONTRACT.
COLLECTION OF THESE FEES BY ACCOUNT IS REQUIRED.
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - EYW/FMY/MTH/PBI/SRQ
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
ABI [*] [*] ICT [*] [*]
ABQ [*] [*] ILE [*] [*]
ACT [*] [*] IND [*] [*]
AEX [*] [*] JAC [*] [*]
ALB [*] [*] LAN [*] [*]
AMA [*] [*] LAS [*] [*]
ATL [*] [*] LAW [*] [*]
AUS [*] [*] LAX [*] [*]
AZO [*] [*] LBB [*] [*]
BDL [*] [*] LCH [*] [*]
BFL [*] [*] LFT [*] [*]
BMI [*] [*] LIT [*] [*]
BNA [*] [*] LSE [*] [*]
BOS [*] [*] MAF [*] [*]
BPT [*] [*] MFE [*] [*]
BUF [*] [*] MKC [*] [*]
BUR [*] [*] MKE [*] [*]
BWI [*] [*] MLI [*] [*]
CHI [*] [*] MRY [*] [*]
CID [*] [*] MSN [*] [*]
CLD [*] [*] MSP [*] [*]
CLE [*] [*] MSY [*] [*]
CLL [*] [*] NYC [*] [*]
CMI [*] [*] OAK [*] [*]
COS [*] [*] OKC [*] [*]
CRP [*] [*] OMA [*] [*]
CVG [*] [*] ONT [*] [*]
CWA [*] [*] PDX [*] [*]
DAY [*] [*] PHL [*] [*]
DEN [*] [*] PIA [*] [*]
DFW [*] [*] PSP [*] [*]
DSM [*] [*] PVD [*] [*]
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
DTT [*] [*] RDU [*] [*]
ELP [*] [*] RNO [*] [*]
EVV [*] [*] RST [*] [*]
EWR [*] [*] SAN [*] [*]
FAT [*] [*] SAT [*] [*]
FSM [*] [*] SBN [*] [*]
FWA [*] [*] SEA [*] [*]
FYV [*] [*] SFO [*] [*]
GGG [*] [*] SGF [*] [*]
GRB [*] [*] SHV [*] [*]
GRR [*] [*] SJC [*] [*]
HOU [*] [*] SJT [*] [*]
HRL [*] [*] SLC [*] [*]
</TABLE>
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - EYW/FMY/MTH/PBI/SRQ
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
SMF [*] [*] TUL [*] [*]
SNA [*] [*] TUS [*] [*]
SPI [*] [*] TVC [*] [*]
SPS [*] [*] TXK [*] [*]
STL [*] [*] TYR [*] [*]
TOL [*] [*] WAS [*] [*]
</TABLE>
FARES ARE RT NET USD AND NON-COMMISSIONABLE. FARES INCLUDE 8% U.S.
DOMESTIC TRANSPORTATION TAX BUT DO NOT INCLUDE U.S. SEGMENT TAXES
FUEL SURCHARGES, PFCS OR ANY OTHER SURCHARGES OR TAXES
THAT MAY APPLY. ABOVE TAXES, SURCHARGES AND FEES ARE SUBJECT TO
CHANGE WITHOUT NOTICE AND ARE NOT GUARANTEED UNDER CONTRACT.
COLLECTION OF THESE FEES BY ACCOUNT IS REQUIRED.
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - TPA
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
ABI [*] [*] ILE [*] [*]
ABQ [*] [*] IND [*] [*]
ACT [*] [*] JAC [*] [*]
AEX [*] [*] LAN [*] [*]
AMA [*] [*] LAS [*] [*]
AUS [*] [*] LAW [*] [*]
AZO [*] [*] LAX [*] [*]
BDL [*] [*] LBB [*] [*]
BFL [*] [*] LCH [*] [*]
BMI [*] [*] LFT [*] [*]
BNA [*] [*] LIT [*] [*]
BOS [*] [*] LRD [*] [*]
BPT [*] [*] LSE [*] [*]
BUR [*] [*] MAF [*] [*]
BWI [*] [*] MFE [*] [*]
CHI [*] [*] MKC [*] [*]
CID [*] [*] MKE [*] [*]
CLD [*] [*] MLI [*] [*]
CLE [*] [*] MRY [*] [*]
CLL [*] [*] MSN [*] [*]
CMH [*] [*] MSP [*] [*]
CMI [*] [*] MSY [*] [*]
COS [*] [*] NYC [*] [*]
CRP [*] [*] OAK [*] [*]
CVG [*] [*] OKC [*] [*]
CWA [*] [*] OMA [*] [*]
DAY [*] [*] ONT [*] [*]
DBQ [*] [*] PDX [*] [*]
DEN [*] [*] PHL [*] [*]
DFW [*] [*] PHX [*] [*]
DSM [*] [*] PIA [*] [*]
DTT [*] [*] PSP [*] [*]
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
ELP [*] [*] RDU [*] [*]
EVV [*] [*] RNO [*] [*]
EWR [*] [*] RST [*] [*]
FAT [*] [*] SAN [*] [*]
FSM [*] [*] SAT [*] [*]
FWA [*] [*] SBA [*] [*]
FYV [*] [*] SBN [*] [*]
GGG [*] [*] SBP [*] [*]
GRB [*] [*] SEA [*] [*]
GRR [*] [*] SFO [*] [*]
HOU [*] [*] SGF [*] [*]
HRL [*] [*] SHV [*] [*]
ICT [*] [*] SJC [*] [*]
</TABLE>
<PAGE>
ATTACHMENT A
1999 U.S. - FLORIDA NET CONTRACT BULK FARES
EFF JAN 1, 1999 THROUGH MAR 31, 2000
U.S. - TPA
<TABLE>
<CAPTION>
ZNTXF9 ZNTWF9 ZNTXF9 ZNTWF9
<S> <C> <C> <C> <C> <C>
SJT [*] [*] TOL [*] [*]
SLC [*] [*] TUL [*] [*]
SMF [*] [*] TUS [*] [*]
SNA [*] [*] TVC [*] [*]
SPI [*] [*] TXK [*] [*]
SPS [*] [*] TYR [*] [*]
STL [*] [*] WAS [*] [*]
</TABLE>
FARES ARE RT NET USD AND NON-COMMISSIONABLE. FARES INCLUDE 8% U.S.
DOMESTIC TRANSPORTATION TAX BUT DO NOT INCLUDE U.S. SEGMENT TAXES
FUEL SURCHARGES, PFCS OR ANY OTHER SURCHARGES OR TAXES
THAT MAY APPLY. ABOVE TAXES, SURCHARGES AND FEES ARE SUBJECT TO
CHANGE WITHOUT NOTICE AND ARE NOT GUARANTEED UNDER CONTRACT.
COLLECTION OF THESE FEES BY ACCOUNT IS REQUIRED.
<PAGE>
Exhibit 10.12
TRAVELSCAPE.COM VOTING AGREEMENT
APRIL 1, 1998
TRAVELSCAPE.COM OWNERSHIP
Tim Poster, through his 70% ownership of Las Vegas Reservation Systems (LVRS),
Jeff Marquis and Tom Breitling are the sole owners of Travelscape.com, a Nevada
Corporation.
The ownership is as follows:
<TABLE>
<S> <C> <C>
LVRS 1,700,000 shares 42.5%
Tom Breitling 2,000,000 shares 50.0%
Jeff Marquis 300,000 shares 7.5%
</TABLE>
VOTING AGREEMENT
The shares of Travelscape.com do not have any voting restrictions. However,
in order to effectively keep control of the Company prior to a planned future
IPO, Mr. Poster, Mr. Breitling and Mr. Marquis have agreed to vote their
shares as an undivided group. The collective shares will be voted as
determined by the mutual agreement of Mr. Poster, Mr. Breitling and Mr.
Marquis.
TERM
This agreement commences 4/1/98 and is binding on the parties until such time
that an Initial Public Offering is completed. Subsequent to an IPO, no voting
restriction will exist on any of the aforementioned shares.
SIGNATURES
By signing and dating below, Mr. Poster, Mr. Breitling and Mr. Marquis
acknowledge their agreement to the above terms.
/s/ Jeff Marquis /s/ Tim Poster /s/ Tom Breitling
- ------------------- ------------------- -------------------
Jeff Marquis Tim Poster Tom Breitling
4/1/98 4/1/98 4/1/98
- ------------------- ------------------- -------------------
Date Date Date
<PAGE>
Exhibit 10.13
THIS PROMISSORY NOTE (THE "PROMISSORY NOTE") HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE
STATE SECURITIES LAWS AND THIS PROMISSORY NOTE MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERING THIS PROMISSORY
NOTE UNDER THE ACT OR UNLESS THIS PROMISSORY NOTE IS EXEMPT FROM
REGISTRATION UNDER THE ACT, AND AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE MAKER HAS BEEN OBTAINED TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS.
PROMISSORY NOTE
$ Wilmington, Delaware
No. , 1999
---------
TRAVELSCAPE.COM, INC.
FOR VALUE RECEIVED, the undersigned ("Maker"), promises to pay to the
order of ____________________, ("Holder"), at _________________________________
or at such other place as Holder may from time to time designate, the principal
sum of Dollars ($ ), together with interest on the unpaid principal balance
outstanding from time to time, all as hereinafter set forth. Payments of both
principal and interest shall be paid in lawful money of the United States of
America which shall be legal tender in payment of all debts and dues.
The following terms shall apply to this Promissory Note:
1. SERIES OF NOTES. This Promissory Note is one of a series of like
notes due February 11, 2001 of the Maker in a total aggregate principal of
$7,036,700 of which $2,190,000 of principal closed on February 12, 1999 and
$4,846,700 of principal closed on March 4, 1999, each issued pursuant to the
Company's Private Placement Memorandum dated January 26, 1999 (the "Notes").
2. INTEREST. Interest on the outstanding principal balance of this
Promissory Note shall accrue (i) at the rate of ten percent (10%) per annum from
the date hereof through February 29, 2000 and (ii) at the rate of twelve percent
(12%) per annum from March 1, 2000 through the Maturity Date, as defined below.
Interest shall be computed on the actual number of days outstanding based on a
three hundred sixty (360) day year.
<PAGE>
3. PAYMENT OF INTEREST. Unless all or any portion of the principal
balance is paid sooner, interest on the outstanding principal balance of this
Promissory Note shall be due and payable in twenty-three (23) consecutive
monthly installments as follows: (i) $ on April 1, 1999; (ii) $ each, beginning
on May 1, 1999 and continuing on the first day of each and every month
thereafter until March 1, 2000; and (iii) $ each, beginning on April 1, 2000 and
continuing on the first day of each and every month thereafter until February 1,
2001.
4. TERM. On February 11, 2001 (the "Maturity Date"), the unpaid
principal balance hereunder plus all accrued and unpaid interest and any other
payments due hereunder shall be due and payable in full. All parties to this
Promissory Note, whether Maker or endorser, agree that the maturity of this
Promissory Note, or any payment due hereunder, may be extended by the holders of
the Notes at any time or from time to time without releasing, discharging, or
affecting the liability of such party.
5. PREPAYMENT. This Promissory Note may be prepaid in whole or in
part at any time without premium or penalty. All prepayments hereunder shall be
applied first to the payment of accrued and unpaid interest and the balance to
the payment of principal.
6. LATE FEES. If any interest payment due hereunder is not paid
within five (5) days after the date due, Maker shall owe and pay to Holder an
additional late fee in an amount equal to five percent (5%) of the interest
payment which is past due.
7. ACCELERATION. Upon the consolidation or merger of Maker into
another corporation or entity which has less than 50% common ownership with the
Maker, a share exchange with a corporation or entity after which less than 50%
of the ownership is common to that of the Maker, the sale of all of the stock of
the Maker, the sale of all or substantially all of Maker's assets, or an initial
public offering of the Maker's stock the entire unpaid principal balance plus
accrued interest and all other sums due hereunder shall be due and payable
immediately.
8. COVENANTS BY MAKER. Maker covenants that while the Notes are
outstanding, Maker shall (i) not pay dividends to holders of its common stock
without the consent of the holders of the Notes; (ii) not pay compensation,
including bonuses, to any of the four highest paid executives of the Company in
excess of that executive's 1998 compensation, including bonuses, from the
Company, where Company is defined collectively as Maker and all of its
subsidiaries; (iii) not sell or assign assets of greater value on the Company's
books than $100,000 without the consent of the holders of the Notes; (iv)
purchase insurance on the life of Tim Poster in the aggregate principal amount
of the Notes, unless otherwise waived by the holders of the Notes; (v) provide
Holder reasonable access to Maker's offices and records, including access for
due diligence performance; (vi) provide Holder with monthly unaudited financial
statements of Maker within 45 days after the end of each month; (vii) not merge
any entity into the Maker or acquire a corporation or entity without the consent
of the holders of the Notes; and (viii) not enter into any long-term debt
obligation, excluding those existing as of the date of this Promissory Note,
unless that debt is subordinated to the Notes, or unless the consent of the
holders of the Notes is obtained.
<PAGE>
9. VOTING RIGHTS. The consent, approval, waiver, or any other action
of the holders of the Notes as used in this Promissory Note means the
affirmative vote of holders of a majority, in dollar amount, of the aggregate
outstanding principal amount of the Notes, and such vote shall be required for
all actions by holders of the Notes with respect to Maker and for consent,
approval or waiver of the holders of the Notes.
10. COSTS AND EXPENSES; WAIVER BY MAKER. Maker shall pay to Holder and
reimburse Holder for any and all costs and expenses, including attorneys' fees
and court costs, if any, incurred by Holder in connection with the enforcement
or collection hereof, both before and after the commencement of any action by
the holders of the Notes to enforce or collect this Promissory Note, but whether
or not any such action is commenced by the holders of the Notes. Maker waives
presentment, protest and demand, notice of protest, notice of dishonor and
nonpayment of this Promissory Note and expressly agrees that this Promissory
Note or any payment hereunder may be extended by the holders of the Notes from
time to time without in any way affecting the liability of any Maker hereunder.
11. CUMULATIVE REMEDIES; NO WAIVER BY HOLDER. The rights and remedies
of Holder hereunder shall be cumulative and concurrent and may be pursued
singularly, successively or together at the sole discretion of the holders of
the Notes, and may be exercised as often as occasion therefor shall occur, and
the failure to exercise any such right or remedy shall in no event be construed
as a waiver or release of the same or any other right or remedy.
12. EVIDENCE OF INDEBTEDNESS. This Promissory Note is given and
accepted as evidence of indebtedness only, and not in payment or satisfaction of
any indebtedness or obligation.
13. HEADINGS. The headings used in this Promissory Note are for
convenience only and are not to be interpreted as a part of this Promissory
Note.
14. GOVERNING LAW. This Promissory Note, having been executed and
delivered under seal in the State of Delaware, is to be governed by, construed
under and enforced in all respects according to the internal laws of the State
of Delaware.
IN WITNESS WHEREOF, Maker has executed this Promissory Note
specifically intending this Promissory Note to constitute an instrument under
seal.
ATTEST:
TRAVELSCAPE.COM, INC.
By:
- -------------------------- ----------------------------
(SEAL)
Jeffrey Marquis, Secretary Timothy N. Poster, President
<PAGE>
Exhibit 10.14
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK WHICH MAY BE
PURCHASED HEREUNDER (COLLECTIVELY, THE "SECURITIES") HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES
ACT"), OR APPLICABLE STATE SECURITIES LAWS, AND THE SECURITIES MAY NOT
BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNTIL EITHER (1) THE HOLDER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT REGISTRATION OF THE
SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED OR (2) A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS WITH RESPECT TO THE
SECURITIES SHALL HAVE BECOME EFFECTIVE.
STOCK PURCHASE WARRANT
To subscribe for and purchase shares
of Common Stock, par value $.01 per share, of
TRAVELSCAPE.COM, INC.
THIS CERTIFIES that, for value received,___________________________
(the "Holder"), subject to the terms and conditions hereof, shall be entitled to
purchase from TRAVELSCAPE.COM, INC., a Delaware corporation (the "Company"), at
any time after the occurrence of certain events as set forth in Section 1 below,
through 5:00 P.M. (Las Vegas Time) on the expiration date of this Warrant set
forth in Section 15 below (the "Expiration Date") __________ shares of Common
Stock (as defined below) of the Company (individually, a "Warrant Share" and
collectively, the "Warrant Shares"), at an initial exercise price of One Cent
($0.01) per share (the "Exercise Price"), subject to adjustment from time to
time pursuant to the provisions of Section 6. For purposes of this Warrant, the
term "Common Stock" shall mean the class of capital stock of the Company
designated common stock, par value $.01 per share, as constituted on the date
hereof.
SECTION 1. EXERCISE OF WARRANTS.
(a) GENERAL. This Warrant may be exercised prior to the Expiration
Date, at any time or from time to time after the first to occur of February 11,
2001 or the receipt by Holder of notice from the Company of the occurrence of a
Triggering Event. A Triggering Event means (i) the transfer (by sale, merger or
otherwise) by the Company of all or substantially all its assets, or the
transfer (by sale, merger, share exchange, consolidation or otherwise) of all or
substantially all the Company's outstanding equity securities, in each case
where such transfer results in either a change of control of the Company (or the
ultimate ownership of its assets), or the issuance of voting securities
<PAGE>
having the right to cast at least thirty percent (30%) of all votes cast in the
election of directors, (ii) a Public Offering (as that term is defined in
Section 10 below, or (iii) the sale, by one or more persons who are owners of
Company Common Stock, of shares of Company Common Stock for an aggregate
purchase price of at least $1,000,000. The Company shall notify the registered
holder hereof of any Triggering Event no later than five business days after it
occurs.
(b) EXERCISE FOR CASH. This Warrant may be exercised by delivering it
to the Company at its principal executive office, or at the office of its stock
transfer agent, if any, with the form of election attached hereto as Exhibit A
duly completed and signed, and by paying to the Company the Exercise Price or
such pro rata portion of the Exercise Price for the number of Warrant Shares in
respect of which this Warrant is then exercised. Payment of the Exercise Price
shall be made in cash or by certified or official bank check payable to the
order of the Company.
(c) CASHLESS EXERCISE. This Warrant may be exchanged, in whole or in
part (a "Warrant Exchange"), into the number of Warrant Shares determined in
accordance with this Section 1(c) by presentation and surrender of this Warrant
to the Company at its principal office, or at the office of its stock transfer
agent, if any, accompanied by a notice (a "Notice of Exchange") stating that
this Warrant is being exchanged and the number of shares of Common Stock to be
exchanged. In connection with any Warrant Exchange, this Warrant shall represent
the right to subscribe for and acquire the number of shares of Common Stock
(rounded to the nearest whole number) equal to (i) the number of shares
specified by the Holder in its Notice of Exchange (the "Total Number"), less
(ii) the number of shares equal to the quotient obtained by dividing (A) the
product of the Total Number and the then applicable Exercise Price by (B) the
then fair market value (determined as set forth below) per share of Common
Stock. For purposes of this Section 1(c), the "fair market value" per share of
Common Stock as of any date shall be the average of the closing sale prices of
the Common Stock, as reported on the securities exchange which is the principal
market for the Common Stock during the five (5) trading days immediately
preceding such date. If the Common Stock is not publicly traded, the "fair
market value" per share of Common Stock shall be an amount determined by the
Company's Board of Directors upon request of the Holder. It shall be a condition
of the exercise of the right to make a Warrant Exchange pursuant to this Section
1(c) that the Holder shall agree, following such Warrant Exchange, to
restrictions on the resale of the Common Stock issued upon exchange of the
Warrant, in form and substance determined by the Company; provided, however,
that the resale of the Common Stock shall not be restricted for a period of more
than 270 days from the Closing Date of a Public Offering (as defined in Section
10 below).
(d) ISSUANCE OF CERTIFICATE(S). Upon surrender of this Warrant and
payment of the Exercise Price or delivery of a Notice of Exchange, as the case
may be, the Company shall issue and cause to be delivered within a reasonable
time, not to exceed fifteen calendar days, to the Holder, or upon the written
order of the Holder in and to such name or names as the Holder may designate, a
certificate or certificates for the number of full Warrant Shares issuable upon
exercise. Such certificate or certificates shall be deemed to have been issued,
and any person so designated to be named therein shall be deemed to have become
a holder of record of such Warrant Shares, as of the date of the surrender of
this Warrant. The certificate(s) representing the Warrant Shares acquired for
<PAGE>
cash shall bear a restrictive legend substantially in the form set forth in
Exhibit B attached hereto, and certificate(s) representing the Warrant Shares
acquired in a cashless exercise shall bear a legend setting forth the applicable
restrictions, if any.
(e) FULL OR PARTIAL EXERCISE. This Warrant shall be exercisable, at
the election of the Holder, either in full or from time to time in part and, in
the event that this Warrant is exercised in respect of fewer than all of the
Warrant Shares issuable on such exercise at any time prior to the date of
expiration of this Warrant, a new certificate evidencing the remaining Warrant
or Warrants will be issued, and the Company is hereby irrevocably authorized to
countersign and to deliver the required new Warrant pursuant to the provisions
of this Warrant. This Warrant, when surrendered upon its exercise, shall be
canceled by the Company and shall then be disposed of in a manner satisfactory
to the Company.
SECTION 4. RESERVATION OF WARRANT SHARES. The Company will at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of this Warrant,
the maximum number of shares of Common Stock which may then be deliverable upon
the exercise of this Warrant. The Company covenants that all Warrant Shares
which may be issued upon exercise of Warrants will, upon issue and payment
therefor, be fully paid, nonassessable, free of preemptive rights and free from
all taxes, liens, charges and security interests with respect to the issue
thereof.
SECTION 6. ADJUSTMENT OF NUMBER OF WARRANT SHARES. The number of
Warrant Shares issuable upon exercise of the Warrant is subject to adjustment
from time to time upon the occurrence of the events enumerated in this Section
6.
(a) CHANGE IN COMMON STOCK. In case the Company shall (i) pay a
dividend or make a distribution on its Common Stock in shares of its Common
Stock, (ii) subdivide its outstanding Common Stock into a greater number of
shares or (iii) combine the outstanding Common Stock into a smaller number of
shares, the Exercise Price and the Warrant Shares shall be adjusted so that with
respect to any Warrant thereafter surrendered for exercise or exchange, the
Holder shall be entitled to receive the number of shares of Common Stock which
it would have owned or would have been entitled to receive after the happening
of any of the events described above had such Warrant been exercised or
exchanged immediately prior to the record date, in the case of a dividend, or
the effective date, in the case of a subdivision or combination. An adjustment
made pursuant to this subparagraph (a) shall become effective immediately after
the record date, in the case of a dividend, except as provided in subparagraph
(c) below, and shall become effective immediately after
<PAGE>
the effective date, in the case of a subdivision or combination. No adjustment
in the Exercise Price shall be made if, at the same time as the Company shall
issue shares of Common Stock as a dividend or distribution on the outstanding
Common Stock which would otherwise call for an adjustment in the Exercise Price,
the Company shall issue shares of Common Stock as a dividend or distribution on
the outstanding Warrants equivalent to the number of shares distributable on the
shares of Common Stock.
(b) OTHER DISTRIBUTIONS. In case the Company shall distribute to all
holders of its Common Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the continuing
corporation) evidences of its indebtedness or assets (excluding cash dividends
or distributions payable out of consolidated earnings or earned surplus and
dividends or distributions referred to in subparagraph (a) above or in the
paragraph immediately following this paragraph) or rights, options or warrants,
or convertible or exchangeable securities containing the right to subscribe for
or purchase debt securities, assets or other securities of the Company
(excluding those referred to in subparagraph (a) above), then in each case the
Company shall set aside and maintain for the benefit of the Holder the rights,
options, warrants, or convertible or exchangeable securities, or evidences of
indebtedness or assets, in an amount equal to the distribution of such item that
the Holder would have been entitled to receive after the happening of any of the
events described above had this Warrant been exercised or exchanged immediately
prior to the record date, in the case of a dividend, or the effective date, in
the case of a subdivision or combination. Such rights, options, warrants, or
convertible or exchangeable securities, or evidences of indebtedness or assets
shall be delivered to the Holder upon exercise of the Warrant.
(c) NO ADJUSTMENTS. No adjustment need be made for a change in the par
value of the shares of Common Stock. No adjustment in the number of shares of
Common Stock purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one percent in the number of
shares of Common Stock purchasable upon the exercise of the Warrant; provided,
however, that any adjustments which by reason of this subparagraph (c) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest
one-thousandth of a share.
(d) NOTICE UPON ADJUSTMENT. Whenever there is an adjustment in the
number or kind of securities issuable upon exercise of the Warrant, or both, as
provided in this Section 6, the Company shall (a) issue a certificate signed by
the Chairman of the Board, President or a Vice President of the Company and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, showing in detail the facts requiring such adjustment
and the number and kind of securities issuable upon exercise of each Warrant
after such adjustment; and (b) cause a notice stating that such adjustment has
been effected and stating the number and kind of securities issuable upon
exercise of each Warrant to be sent by First Class Mail, postage prepaid, to the
Holder of the Warrant.
(e) NOTICE UPON CERTAIN EVENTS. If, at any time prior to the
expiration of the Warrant evidenced hereby, (i) the Company shall declare any
dividend on the Common Stock payable
<PAGE>
in cash or shares of Common Stock or capital stock of the Company; or (ii) the
Company shall authorize the issuance to all holders of shares of Common Stock of
rights, options or warrants to subscribe for or purchase shares of Common Stock
or of any other subscription rights or warrants; or (iii) the Company shall
authorize the distribution to all holders of shares of Common Stock evidences of
its indebtedness or assets; or (iv) the Board of Directors of the Company shall
have approved any consolidation or merger to which the Company is a party and
for which approval of any shareholders of the Company is required, or any sale,
transfer or lease of all or substantially all of the assets of the Company or
any reclassification or change of Common Stock issuable upon exercise of the
Warrants (other than a change in par value, or as a result of a subdivision or
combination), or a tender offer or exchange offer for shares of Common Stock; or
(v) the voluntary or involuntary dissolution, liquidation or winding up of the
Company occurs; or (vi) the Company proposes to take any action which would
require an adjustment in the number or kind of securities issuable upon exercise
of the Warrant pursuant to this Section 6; then the Company shall cause to be
given to the Holder, at least twenty calendar days prior to the applicable
record date specified, or promptly in the case of events for which there is no
record date, a written notice stating (A) the date as of which the holders of
record of shares of Common Stock to be entitled to receive any such dividends,
rights, options, warrants or distribution are to be determined, or (B) the
initial expiration date set forth in any tender offer or exchange offer for
shares of Common Stock, or (C) the date on which any such consolidation, merger,
sale, transfer, lease, reclassification, change, dissolution, liquidation or
winding up is expected to become effective or consummated, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such consolidation, merger, sale, transfer, lease,
reclassification, change, dissolution, liquidation or winding up.
(f) MERGER, CONSOLIDATION, ETC. If any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with or into another corporation, or the sale of all or
substantially all of its assets to another corporation shall be effected, then,
as a condition of such reorganization, reclassification, consolidation, merger
or sale, lawful and adequate provision shall be made whereby the Holder of the
Warrant shall thereafter have the right to purchase and receive on exercise of
such Warrant upon the basis and upon the terms and conditions specified in this
Agreement and in lieu of the shares of the Common Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
Warrant, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares such Common Stock immediately, theretofore
purchasable and receivable upon the exercise of the Warrant had such
reorganization, reclassification, consolidation, merger or sale not taken place
and in any such case appropriate provision shall be made with respect to the
rights and interests of the Holder of the Warrant to the end that the provisions
of this Agreement (including, without limitation, provision for adjustment of
the number of shares issuable upon the exercise of the Warrant) shall thereafter
be applicable as nearly as may be in relation to any shares of stock,
securities, or assets thereafter deliverable upon exercise of Warrant. The
Company shall not effect any such consolidation, merger or sale, unless, prior
to or simultaneously with the consummation thereof, the successor corporation
(if other than the Company) resulting from such consolidation or merger or the
corporation purchasing
<PAGE>
such assets shall assume, by written instrument acceptable to the Holder, the
obligation to deliver to the Holder of the Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, the Holder
would be entitled to purchase.
SECTION 7. PRE-EXERCISE RIGHTS. Prior to exercise of this
Warrant, the Holder shall not be entitled to any rights of a stockholder with
respect to the Warrant Shares, including (without limitation ) the right to vote
such Warrant Shares, receive dividends or other distributions thereon, exercise
preemptive rights or be notified of stockholder meetings, and such Holder shall
not be entitled to any notice or other communication concerning the business or
affairs of the Company.
If to the Company to:
Travelscape.com, Inc.
8951 West Sahara Avenue
Las Vegas, Nevada 89117
Attention: President
If to the Holder to the address shown therefor on the books and records
of the Company. Notices may also be given by prepaid telegram or facsimile and
shall be effective on the date transmitted if confirmed within 24 hours
thereafter by a signed original sent in the manner provided above. Any party may
change its address for notice and the address to which copies must be sent by
giving notice of the new addresses to the other parties in accordance with this
Section 13, except that any such change of address notice shall not be effective
unless and until received.
SECTION 15. EXPIRATION DATE. This Warrant, in all events, shall be
wholly void and have no effect after 5 P.M. (Las Vegas, Nevada Time) on February
11, 2002.
<PAGE>
SECTION 16. SEVERABILITY. In the event that one or more of the
provisions of this Warrant shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Warrant, but this Warrant shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its corporate name by a duly authorized officer and to be dated as of the date
first above written.
TRAVELSCAPE.COM, INC.
By:
----------------------------------
Timothy N. Poster, President
Initial Holder of Warrant:
------------------
Number of Shares:
---------------------------
EXHIBIT A
FORM OF EXERCISE
(to be executed by the Holder)
The Holder hereby exercises its rights to subscribe for and purchase
____ shares of common stock, par value $.01 ("Common Stock"), of
TRAVELSCAPE.COM, INC. evidenced by the attached Warrant and herewith makes
payment of the Purchase Price of $____________ therefor in full. Please issue a
certificate in the name of the Holder for the Common Stock in accordance with
the instructions given below and issue a replacement Warrant in the name of the
Holder for the unexercised balance, if any, of the right to purchase Warrant
Shares evidenced by the attached Warrant which were not exercised hereby.
Dated:
---------------------------------- ------------------------------------
Signature of Holder
Instructions for registration of shares
<PAGE>
Social Security or Employer Identification
Number of Holder:
---------------------------
Address of Holder:
- --------------------------------------------
Street
- --------------------------------------------
City, State and Zip Code
EXHIBIT B
FORM OF RESTRICTIVE LEGEND
TO BE IMPRINTED ON WARRANT SHARES
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL EITHER (1) THE HOLDER
THEREOF SHALL HAVE RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT REGISTRATION OF SUCH SHARES UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED OR (2) A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS WITH RESPECT TO SUCH
SHARES SHALL HAVE BECOME EFFECTIVE.
