1
EXHIBIT 10.16
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
SECOND AMENDMENT TO
TRAVEL SERVICES ADVERTISING AND PROMOTION AGREEMENT
This SECOND AMENDMENT TO THE TRAVEL SERVICES ADVERTISING AND PROMOTION
AGREEMENT (the `Second Amendment') dated as of October 1, 1999 (the "Second
Amendment Effective Date") is made and entered into between Yahoo! Inc, a
Delaware corporation ("Yahoo!") and SABRE Interactive ("SI"), a division of
Sabre Inc. (formerly, The SABRE Group, Inc.), a Delaware corporation. Yahoo! and
SI may be referred to individually as a "Party" and collectively as the
"Parties."
RECITALS
A. Yahoo! and SI entered into the Travel Services Advertising and
Promotion Agreement, dated as of June 30, 1997 (the "Agreement"); and
B. The Agreement was mended by the Parties pursuant to the First Amendment to
Travel Services Advertising and Promotion Agreement dated November, 1998 (the
"First Amendment"); and
C. The Parties desire to make various changes to the Agreement, including,
without limitation, extending the Term of the Agreement for an additional two
years, and the Parties are entering into this Amendment to document such
changes to the Agreement.
AGREEMENT
In consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Parties agree to amend the Agreement as set forth below:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. Terms used in this Second Amendment but not defined herein
shall have the meaning given them in the Agreement and First Amendment.
SECTION 2. AMENDMENTS.
2.2 The Agreement is hereby amended as follows:
(a) Section 1.2 is deleted in its entirety and replaced with the
following:
"1.2 `Exclusivity Period' means (***) through (***)."
(b) Section 1.6 is deleted in its entirety and replaced with the
following:
2
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
"1.6 `Yahoo! Travel Page' means the first page located in the
travel category on the Yahoo! Site, currently located at
xxxx://xxxxxx.xxxxx.xxx/xxxxxx. A screen image of the Yahoo!
Travel Page is attached to this Agreement in Exhibit A.
(c) Section 4.3 is deleted in its entirety and replaced with the
following:
"(a) By Yahoo!. Yahoo! shall not display any banner
advertisements or other promotional materials on the
Co-Branded Pages or the Yahoo! Travel Page for any of the
following (***). SI may add additional third parties that
(***) to the above lists of (***) and (***) upon giving (***)
written notice to Yahoo!; provided that Yahoo! shall be
permitted to (***) to any such third party provided that such
obligation exists (or would cause Yahoo! to (***) if revoked)
as of the date of such notice. It is expressly understood that
for the purposes of this Section 4.3(a), third parties that
(***) (such as airline, hotel or car rental provider), shall
not be considered (***) and Yahoo may provide such third
parties advertising services. If the parties do not execute
insertion orders for the Advertising Rights SI is obligated to
purchase pursuant to Section 5.1 as set forth therein, then,
as a non-exclusive remedy, (***). Further, notwithstanding
anything to the contrary in this Agreement, under no
circumstances shall Yahoo! be restricted from promoting any
entity (including, but not limited to, (***)) through (***) on
the Yahoo! site.
(d) Section 5.1 of the Agreement shall be amended by replacing the
third and fourth sentences of the first paragraph with the
following:
"SI will execute Yahoo! insertion orders for Advertising
Rights on the Yahoo! Site, based on available inventory, as
follows: (i) on or before (***), SI will place an insertion
order for (***) for Advertising Rights to be delivered during
(***); (ii) on or before (***), SI will place an insertion
order for (***) for Advertising Rights to be delivered during
(***); and (iii) on or before (***) SI will place an insertion
order for (***), for Advertising Rights to be delivered during
(***). All such advertisements shall be subject to Yahoo!'s
standard terms and conditions as set forth in Exhibit D and
Yahoo's standard policies concerning the collection of user
data, any of which Yahoo! may modify from time to time in its
reasonable discretion upon written notice to SI. In the event
of any conflict between the provisions of this Agreement and
such standard terms and conditions or any advertising
insertion order, (***)."
(e) Section 6.3 of the Agreement shall be replaced in its
entirety with the following:
-2-
3
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
"Tracking Procedures; Audit Rights. To ensure compliance with
the terms of Section 6.1 and 6.2, SI shall establish
reasonable mechanisms acceptable to Yahoo! to track, and shall
keep reasonably detailed records concerning, Qualified
Bookings and the payments due Yahoo! under this Agreement. SI
shall provide Yahoo!, within ten (10) days following the end
of each month, a report continuing the information set forth
in Exhibit G, and such other information related to commission
s and payments due and compliance with performance
specifications set forth in Exhibits B, E and F under this
Agreement as Yahoo! may reasonably request from time to time.
Yahoo shall have the right, no more than twice a year and at
its own expense, to have a representative inspect and audit
all of the accounting and sales books and records of SI which
are relevant to the payments set out in Sections 6.1 and 6.2,
provided, however, that Yahoo! provides SI with reasonable
notice prior to such audit and any such inspection and audit
shall be conducted during regular business hours in such a
manner as not to interfere with normal business activities. In
the event that any audit shall reveal an underpayment of more
than five percent (5%) of the amounts due to Yahoo! for any
Calendar quarter of the Term, SI shall immediately pay the
amount owed with reasonable interest and reimburse Yahoo! for
the cost of such audit. Within forty-five (45) after the end
of each calendar year of the Term, SI shall furnish Yahoo! a
cumulative report, that has been reviewed and certified as
accurate by SI's Chief Financial Officer (or an SI officer
with similar responsibilities) describing in reasonable detail
the calculation of all fees, commissions and payments due to
Yahoo! under this Agreement during such year then ended."
(f) Section 11.1 is deleted in its entirety and replaced with the
following:
"11.1 Term. This Agreement shall commence upon the Effective
Date and continue through December 31, 2002 unless terminated
earlier in accordance with Section 11.2 (the "Term").
(g) Section 12.6 of the Agreement shall be deleted in its
entirety and replaced with the following:
"12.6 Successors and Assigns. Neither party shall assign its
rights or obligations under this Agreement without the prior
written consent of the other party, which shall not be
unreasonably withheld. Notwithstanding the foregoing, upon
written notice to Yahoo! SI shall have the right to assign
this Agreement to an affiliate in which SI owns a majority
interest or indirectly (e.g., through a holding company)
controls. Further, either party may assign this Agreement to
an entity who acquires substantially all of the stock or
assets of a party to this Agreement; provided that consent
will be required in the event that the non-assigning party
-3-
4
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
determines that the assignee will not have sufficient capital
or assets to perform its obligations hereunder, or that the
assignee is a direct competitor of the non-assigning party;'
provided that, such consent may not be unreasonably withheld
or delayed.
(h) Exhibit E of the Agreement is deleted in its entirety and
replaced with "Exhibit E" as attached to this Second
Amendment.
(i) Exhibit F of the Agreement is deleted in its entirety and
replaced with "Exhibit F" as attached to this Second
Amendment.
(j) Exhibit H, Section 3 shall be deleted in its entirety and
replaced with the following:
"3 2000-2002 Payments
In the event that this Agreement remains in effect
and Yahoo (***) in the year 2000 through 2002, the parties
shall apply the above formulae, in a consistent manner, to
SI's monthly payments as determined by the parties in
accordance with the terms of this Agreement."
[signature page follows]
-4-
5
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
IN WITNESS WHEREOF, the Parties have each caused this Second Amendment
to be signed and delivered by its duly authorized officers, all as of
the Second Amendment Effective Date.
YAHOO! INC. SABRE INTERACTIVE, a division of Sabre Inc.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxx
------------------------ -----------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx Xxxxx
----------------------- --------------------------------------
Title: V.P. Title: President, Xxxxxxxxxxx.xxx
---------------------- -------------------------------------
-5-
6
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
EXHIBIT E
PAYMENTS
Month Fee Payment Due Date
----- ------- -----------------------------
(***) $ (***) (***)
(***) $ (***) (***)
(***) $ (***) (***)
(***) $ (***) (***)
(***) $ (***) (***)
(***) $ (***) (***)
(***) $ (***) On or before the (***) of each
applicable(***)
(***) $ (***) On or before the (***)of each
applicable (***)
(***) $ (***) On or before the (***) of each
applicable (***)
(***) $ (***) On or before the (***) of each
applicable (***)
(***) $ (***) On or before the (***) of each
applicable (***)
For the period running from (***) through (***) and (***), in addition to the
amounts provided above and elsewhere in this Agreement, SI will pay Yahoo!
additional fees for Qualified Bookings as set forth below:
Number of Qualified Bookings 2001 2002
---------------------------- ---- ----
(***) (***) (***)
(***) (***) (***)
(***) (***) (***)
(***) (***) (***)
(***) (***) (***)
(***) (***) (***)
(***) (***) (***)
(***) (***) (***)
(***) (***) (***)
The additional fees set forth above shall be paid within (***) of the (***) in
which the Qualified Bookings thresholds are achieved as identified above. The
number of Qualified Bookings achieved shall (***) (e.g, during the year 2001, SI
shall pay Yahoo!: (i) (***) within (***) following the end of the (***) in which
the (***) Qualified Booking threshold is reached, and (ii) an additional (***)
(for a total of (***)) within (***) following the end of the (***) in which the
(***) additional Qualified Bookings are achieved (for a total of (***) Qualified
Bookings), etc.
-6-
7
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
EXHIBIT F
COMMISSIONS
F-1 Commissions for (***):
Net SI Commission Commission to Yahoo!
----------------- --------------------
(***) (***)
(***) (***)
(***) (***)
Commissions for (***) through (***) shall be calculated on a (***)
basis, beginning on the Effective Date and continuing through (***).
(***) payments by SI shall not (***) the Net SI commissions. As an
illustrative example, if Net SI Commissions from Qualified Bookings are
(***) in August 1997, (***) in September 1997, (***) in October 1997
and (***) in November 1997, SI would make the following payments to
Yahoo!: (1) (***) for the (***) ending (***); and (2) (***) for the
(***) ending (***).
F-2 Commissions for (***):
Net SI Commission Commission to Yahoo!
----------------- --------------------
(***) (***)
(***) (***)
Commissions for (***) through (***) shall be calculated on a (***)
basis, beginning on (***) and continuing through (***). (***) payments
by SI shall not (***) the Net SI Commission.
F-3 Commissions for (***):
Net SI Commission Commission to Yahoo!
----------------- --------------------
(***) (***)
(***) (***)
Commissions for (***) through (***) shall be calculated on a (***)
basis, beginning on (***) and continuing through (***). (***) payments
by SI shall not (***) the Net SI Commission.
-7-
