Exhibit 10.83
Amendment No. 10
to CRS Marketing, Services and Development Agreement
This Amendment No. 10 to the CRS
Marketing, Services and Development Agreement (the
“Amendment”) is entered into as of the 22 nd
day of December, 2004 (the “Amendment Effective Date”),
by and between IAC Global, LLC (“IAC Global”), a Nevada
limited liability company with its principal office at 3150 139
th Ave SE, Suite 500, Bellevue, WA 98005, and
Worldspan, L.P., a Delaware limited partnership
(“Worldspan”), with its principal office at 300
Galleria Parkway, N.W., Atlanta, Georgia 30339.
Recitals
Microsoft Corporation
(“Microsoft”) and Worldspan entered into that certain
CRS Marketing, Services and Development Agreement dated December
15, 1995, as amended by the parties pursuant to that certain
Amendment No. 1 dated January 1, 1997, Amendment No. 2 dated July
1, 1998, Amendment No. 3 dated April 1, 1999, Amendment No. 4 dated
July 1, 2001, Amendment No. 5 dated October 22, 2001, Amendment No.
6 dated January 1, 2002, Amendment No. 7 dated October 8, 2003,
Amendment No. 8 dated November 1, 2003, and Amendment No. 9 dated
March 11, 2004 (collectively, the
“Agreement”).
Microsoft’s rights and
obligations under the Agreement were assigned to and assumed by
Expedia, Inc. (“EI”).
EI’s rights and obligations
under the Agreement were assigned to and assumed by IAC Global,
which is the successor in interest to EI for all purposes relating
to the Agreement.
Now, Therefore,
in consideration of the above
recitals, the mutual undertakings of the parties as contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this
Amendment hereby agree as follows:
1.
Paragraph B of
Schedule 11.1, attached as Appendix 1 to Amendment No. 4 of the
Agreement is hereby deleted in its entirety and replaced with the
following:
“B. Car Segments
Revenue Share and Related Matters .
(i)
Car Segment
Revenue Share . For Net Car Segments
booked by Expedia users on and after [**], Worldspan shall pay IAC
Global a revenue share equal to [**]% of the [**] (the “Base
Car Segment Revenue Share”), subject to adjustment as
provided in this Paragraph B of Schedule 11.1.
(ii)
Net Car
Segment Minimum . Effective as of [**],
IAC Global agrees to cause a minimum of [**] Net Car Segments
created on behalf of Expedia users to be booked through the
Worldspan System per [**] period, subject to adjustment from
Segment Count Reduction(s) as provided below (the “Net Car
Segment Minimum”), subject to the following
terms:
(a)
If IAC Global
fails to book the Net Car Segment Minimum through the Worldspan
System during any [**] period, then
[**] Confidential treatment requested for
redacted portion; redacted portion has been filed separately with
the Commission.
Worldspan, at its option, may give
written notice to IAC Global of such shortfall (“Shortfall
Notice”).
(b)
If IAC Global
does not meet the Net Car Segment Minimum for the [**] period
measured [**] after receipt of a Shortfall Notice (such 60-day
period following a Shortfall Notice is referred to herein as the
“Probationary Period”), then, the revenue share per Net
Car Segment will be [**] $[**] (the “Reduced Car Segment
Revenue Share”) for Net Car Segments booked after the
expiration of the Probationary Period until such time as IAC Global
has met the Net Car Segment Minimum for the previous [**] period as
measured on the first day of any subsequent calendar month (a
“Restoration Event”). Following any Restoration
Event, the Base Car Segment Revenue Share will be restored for Net
Car Segments booked following any Restoration Event, provided that
the provisions of subparagraph (a) above and this subparagraph
(b) will continue to apply in the event of subsequent shortfalls
from the Net Car Segment Minimum.
(iii)
Renegotiation
. After
[**], IAC Global and Worldspan will negotiate in good faith to
determine adjustments, if any, to the Base Car Segment Revenue
Share, Reduced Car Segment Revenue Share and/or the Net Car Segment
Minimum. If the parties agree upon adjustments to the Base
Car Segment Revenue Share, Reduced Car Segment Revenue Share and
the Net Car Segment Minimum for any period after [**], then such
adjustments will be added to this Agreement via a written
amendment. If, after [**], the parties are unable to agree,
then the Base Car Segment Revenue Share, Reduced Car Segment
Revenue Share and the Net Car Segment Minimum then applicable shall
remain in effect and either party may give written notice to the
other party after [**], to initiate the Car Termination and Wind
Down Procedure set forth in subparagraph (x) below.
(iv)
Base Car
Segment Revenue Share Reductions . If the Base Car
Segment Revenue Share drops below [**] ($[**]) per Net Car Segment,
either party may elect to give the other party written notice of
initiation of the Car Termination and Wind-Down Procedure set forth
in subparagraph (x) below. [**]
(v)
Parity and
Discontinuation by Participating Cars . If (A) a
Material Car Participant discontinues participation in the
Worldspan System after [**]; (B) Worldspan otherwise fails to
materially maintain parity with [**] with respect to the pricing,
inventory or functionality of any Material Car Participant; or
(C) IAC Global gives Worldspan written notice of any material
parity discrepancy between the pricing and publicly available
inventory (e.g., types of cars and availability of cars) of a
Material Car Participant provided by [**], and Worldspan is unable
to resolve such
[**] Confidential treatment requested for
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the Commission.
2
lack of parity
within [**] after such notice, then, in any case, IAC Global may
elect to: (1) give Worldspan written notice to [**] by
the [**] of the [**]; or (2) initiate the Car Termination and
Wind-Down Procedure set forth in subparagraph (x)
below.
(vi)
Concerns of
Participating Cars . IAC Global and
Worldspan will work together in good faith to address any concerns
raised by a Material Car Participant to IAC Global with respect to
such Material Car Participant’s participation in the
Worldspan System. [**]
(vii)
Functionality
Changes . If IAC Global
requests functionality to interact with a Material Car Participant
in a new way (e.g. selling insurance, gas option etc.) it will
request in writing that Worldspan build
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