Exhibit 10.9


 


AMERICAN NON-COMPETITION AGREEMENT


 


THIS NON-COMPETITION AGREEMENT, dated as of
June 30, 2003 (this “Agreement”), is by and among AMERICAN AIRLINES, INC., a corporation
organized and existing under the laws of Delaware (“American”); WORLDSPAN, L.P., a limited partnership
organized and existing under the laws of Delaware (“Worldspan”); and Travel
Transaction Processing Corporation, a corporation organized and existing under
the laws of Delaware (“Buyer”).


 


W
I  T  N  E  S  S  E  T  H:


 


WHEREAS,
NWA, Inc., a corporation organized and existing under the laws of Delaware
(“NWA”), Delta Air Lines, Inc.,
a corporation organized and existing under the laws of Delaware, (“Delta”),  American, NewCRS Limited, Inc., a
corporation organized and existing under the laws of Delaware (“NEWCRS”),
Worldspan and Buyer have entered into a Partnership Interest Purchase
Agreement, dated as of March 3, 2003 (the “Purchase Agreement”), pursuant
to which Delta, NWA and American have severally agreed to sell, or cause their
Affiliates to sell, all of the partnership interests in Worldspan to Buyer;


 


WHEREAS,
as a condition to the obligations of Buyer to consummate the transactions
contemplated by the Purchase Agreement, the parties desire to enter into
certain agreements on the terms and conditions hereinafter set forth; and


 


NOW,
THEREFORE, in consideration of the premises and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto do agree as follows:


 


SECTION 1. 
Definitions.


 


As used in this Agreement, the following
terms shall have the meanings specified below:


 


“Affiliate” of a specified Person
means another Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the specified Person.  For purposes of
this Agreement, the term “control” (including, with its correlative meanings,
“controlled by” and “under common control with”) shall mean possession,
directly or indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).  Notwithstanding anything to the contrary contained herein, it is
understood and agreed that none of Orbitz, LLC, Orbitz, Inc., Hotwire Inc., and
their respective subsidiaries and successors shall be deemed to be an Affiliate
of American for any purpose under this Agreement.


 


“Air Carrier” means (i) each “air
carrier” as that term is defined in Section 40102(a)(2) of the United
States Federal Aviation Act of 1958, as amended, and (ii) each “foreign air
carrier” as that term is defined in Section 40102(a)(21) of the United
States Federal Aviation Act of 1958, as amended.


 


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“Airline Flights” means any of the
following: (a) flight segments operated either (i) under the International Air
Transport Association (“IATA”) code designation of American or one of its
airline Affiliates, or (ii) under an airline marketing alliance operated under
a distinct alliance name or brand (e.g., oneworld)
in which American or any of its Affiliates participates and which involves an
exchange of passenger or cargo traffic, whether operated by American or by any
other Air Carrier in such alliance, (b) interline itineraries or (c) codeshare
travel involving American or any of its Affiliates, as marketing Air Carrier or
operating Air Carrier.


 


“Code Share Partner” means any Air
Carrier, some or all of whose flights use American’s air carrier designator
code.


 


“Core Business” means the provision to
Travel Agencies of systems and services for the computerized display or
distribution of Product availability; provided, however, that
Core Business shall not be deemed to include Internal Reservations Services.


 


“Delta Non-Competition Agreement”
means the Non-Competition Agreement, dated as of the date hereof, among Delta,
Worldspan and Buyer.


 


“Hosting Business” means the provision
to an Air Carrier of systems and services to maintain a comprehensive
electronic database of such Air Carrier’s Airline Flights inventory and other
inventory of travel products and services to enable the operation of Internal
Reservations Services; provided, however, that neither American
nor any of its Affiliates shall be deemed to be engaged in the Hosting Business
as a result of systems and services that it provides to (i) any of its
Affiliates, (ii) any of its Code Share Partners if and to the extent that such
systems and services are used to support only the portion of the operations of
the Code Share Partner that is associated with the Code Share Partner’s flights
on which American air carrier designator code is used, or (iii) any Air Carrier
with which American has or develops a regional or feeder carrier relationship.


 


“Internal Reservations Services” means
the provision by American or any of its Affiliates to any Person of systems and
services for the computerized display or distribution of Product availability
(i) which are branded under any name or mark publicly associated with the
Products of American, any of its Code Share Partners or any of their respective
Affiliates, or (ii) the display of which is biased in favor of the Airline
Flights of American; provided, however, that, in either case, the
travel-related products and services of Travel Vendors, other than Airline
Flights, are displayed and distributed by such systems and services only to the
extent incidental to the Principal Activity.


 


“Northwest Non-Competition Agreement”
means the Non-Competition Agreement, dated as of the date hereof, among
Northwest Airlines, Inc. (“Northwest”), Worldspan and Buyer.


 


“Person” means any individual,
corporation, partnership, firm, joint venture, association, joint-stock
company, trust, estate, unincorporated organization, governmental or regulatory
body or other entity.


 


“Principal Activity” means the
collection, storage, processing, display and/or distribution of Airline Flights
information and inventory and other travel-related products or services with
respect to American, its Code Share Partners or any of their respective
Affiliates.


 


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“Product” means fares and inventory of
Travel Vendors, excluding cargo.


 


“Restricted Activities” has the
meaning set forth in Section 2.


 


“Travel Agency” means any Person  (i) who has been assigned an account
number by the Airline Reporting Corporation (“ARC”) or IATA, or both (or any
other accrediting agency that performs substantially all of the functions of
ARC or IATA, or both, and is recognized by a majority of major United States
Air Carriers) for the purpose of authorizing such Person to operate as a travel
agency, and (ii) who on a comprehensive basis, books, sells and fulfills
the products and services of Travel Vendors. 
A Person shall be deemed to book, sell, and fulfill the products and
services of Travel Vendors on a comprehensive basis if the Person books, sells,
and fulfills the products and services of other Travel Vendors in addition to
those of American using information provided by a global distribution system
operated by Worldspan, Sabre, Inc., Galileo International, LLC, Amadeus Global
Travel Distribution, S.A., AXESS, Infini, ABACUS Distribution Systems Pte.
Ltd., Travelsky and their respective successors and affiliates.


 


“Travel Vendor” means a vendor of
travel-related products and services, such as an airline, hotel, rental car
company, tour package operator, cruise operator, or travel insurance company.


 


SECTION 2. 
Non-Competition.


 


American agrees that, for a period of three
years commencing on the date of this Agreement, neither it nor any Affiliate of
it shall, directly or indirectly, (i) engage in the Core Business anywhere in
the world, (ii) engage in the Hosting Business anywhere in the world or (iii)
own two percent (2%) or more of the equity or voting securities issued by any
Person whose principal business, at the time of the purchase of such
securities, is the ownership and operation of a System, as defined by the
United States Department of Transportation’s Computer Reservations Systems
regulations contained in 14 CFR Part 255 (as in effect on the date of the
Purchase Agreement except that, for purposes of this Section 2, System
shall not be limited to a computer reservations system offered by an Air Carrier
for use in the United States but shall instead mean a computer reservations
system offered by any Person for use anywhere in the world) (clauses (i), (ii)
and (iii) collectively referred to herein as, the “Restricted Activities”);
provided, however, that American and its Affiliates shall not be
prohibited from purchasing securities of, or acquiring or merging with or into,
any Person, or acquiring assets of any business, that directly or
indirectly engages in or has an ownership interest that constitutes a Restricted
Activity so long as American or such Affiliate, as the case may be, shall
dispose of the portion of the acquired business that engages in the Restricted
Activity within one year following the date of the applicable acquisition.


 


SECTION 3. 
Disputes.


 


The restrictive covenants contained in this
Agreement are each covenants independent of any other provision of this
Agreement, and the existence of any claim which any party hereto may allege
against any other party to this Agreement, the Purchase Agreement or any other
agreement entered into among any of the parties pursuant to the transactions
contemplated by the Purchase Agreement, whether based on this Agreement, the
Purchase Agreement or such other 


 


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agreements, shall not prevent the enforcement of these covenants.  American acknowledges that Buyer is
purchasing the goodwill of Worldspan and the covenants contained in
Section 2 of this Agreement are essential to the protection of Buyer’s
investment in Worldspan and that Buyer would not purchase Worldspan but for
such covenants.  The parties agree that
a breach by American of this Agreement shall cause irreparable harm to
Worldspan and Buyer and that Worldspan’s and Buyer’s remedies at law for any breach
or threat of breach of the provisions of this Agreement shall be inadequate,
and that Worldspan and Buyer shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement, to enforce specifically the terms and
provisions hereof and to seek such relief in a court of competent jurisdiction,
in addition to any other remedy to which such non-breaching party may be
entitled at law or in equity.


 


SECTION
4.  Blue-Penciling.


 


If any court or arbitrator, as the case may
be, determines that any restrictive covenant herein, or any part thereof, is
unenforceable because of the duration or geographic scope of such provisions or
other reason, it is the intention of the parties that such court shall have the
power to modify any such provisions to the extent necessary to render the
provisions enforceable, and such provisions as so modified shall be enforced.


 


SECTION
5.  Amendments.


 


This Agreement may not be amended except by
an instrument in writing signed by the parties hereto; provided, however,
that this Agreement may not be amended unless Worldspan and Buyer offer to
enter into the same amendment with Delta and Northwest with respect to each of
the Delta Non-Competition Agreement and the Northwest Non-Competition
Agreement, respectively.


 


SECTION
6.  Governing Law.


 


This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York
without reference to the conflicts of law or choice of law principles thereof.


 


SECTION 7. 
Notices.


 


All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed
given:  (a) when received if delivered
personally; (b) on the next business day if sent by overnight service prepaid
with instructions for next business day delivery; or (c) on the day of
transmission if telecopied (transmission confirmed), to the parties at the
following addresses and numbers (or to such other addresses and numbers as a
party may have specified by notice given to the others pursuant to this
provision):


 


(i)                                     If
to Worldspan, to:


 


Worldspan, L.P.

300 Galleria Parkway, N.W.

Suite 2122

Atlanta, Georgia 30339


 


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Attention: 
President & Chief Executive Officer


 


Telecopier No.:  (770) 563-7878


 


With a copy to:


 


Worldspan, L.P.


300 Galleria Parkway, N.W.


Suite 2105


Atlanta, Georgia 30339


Attention: Senior Vice President - Human
Resources, General Counsel and Secretary


 


Telecopier No.:  (770) 563-7878


 


(ii)                                  If
to American, to:


 


American Airlines, Inc.


4333 Amon Carter Boulevard


Fort Worth, Texas 76155


MD HDQ1 5566


Attention: 
Vice-President - Corporate Development and Treasurer


 


Telecopier No.:  (817) 931-6133


 


With a copy to:


 


American Airlines, Inc.


4333 Amon Carter Boulevard


Fort Worth, Texas 76155


MD HDQ1 5675


Attention: 
Corporate Secretary


 


Telecopier No.:  (817) 967-2937


 


(iii)                               If
to Buyer, to:


 


Travel
Transaction Processing Corporation


c/o Citigroup
Venture Capital Equity Partners, LP


399 Park
Avenue, 14th Floor


New York, New
York 10022

Attention:  Joseph Silvestri


 


Telecopier No.:  (212) 888-2940


 


Travel
Transaction Processing Corporation


c/o Ontario
Teachers’ Pension Plan Board


5650 Yonge
Street


 


5

















 


Toronto,
Ontario M2M 4H5


Attention:  Shael Dolman


 


Telecopier
No.:  (416) 730-5082


 


SECTION
8.  Rules of Construction.


 


The captions and other headings contained in
this Agreement are for reference purposes only and shall not be considered a
part of, or affect the construction and interpretation of, any provision of
this Agreement.  All terms not otherwise
defined herein shall have the meaning commonly ascribed thereto in the travel
industry.


 


SECTION
9.  Successors and Assigns.


 


This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by or against the parties hereto and
their respective successors and assigns; provided, however, that
no party hereto may assign this Agreement without the prior written consent of
the other parties hereto to any Person other than a Person that
(i) acquires all or substantially all of the assets of the assigning
party, and (ii) either agrees, or by operation of law is required, to comply
with and be bound by the provisions of this Agreement to the same extent as the
assigning party.  Notwithstanding the
foregoing, Worldspan may assign any of its rights and obligations hereunder in
whole or in part to any Affiliate of Worldspan and may collaterally assign its
rights hereunder to any lender or financing source to Worldspan or Buyer, in
each case, without the consent of American.


 


SECTION 10. 
No Third-Party Beneficiaries.


 


This Agreement shall be for the benefit of
the parties hereto and none of the provisions of this Agreement shall be for
the benefit of or enforceable by any third party; provided, however, that Delta
and Northwest shall be third party beneficiaries to the proviso contained in
Section 5 and the proviso contained in the first sentence of
Section 11, and shall have the right to enforce such provisions directly.


 


SECTION 11. 
Waivers.


 


The terms of this Agreement may be waived
only by a written instrument signed by the party that would have been able to
require compliance therewith; provided, however, that neither
Worldspan nor Buyer may waive any provision of this Agreement without also
offering to waive, if applicable, the same provision under each of the
Northwest Non-Competition Agreement and the Delta Non-Competition
Agreement.  No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof.  No waiver on the part
of any party of any such right, power or privilege shall preclude any further
exercise thereof or the exercise of any other such right, power or privilege.


 


SECTION 12. 
Entire Agreement.


 


This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes any prior agreements and 


 


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understandings, both written and oral, between the parties hereto or
their Affiliates or any of them with respect to the subject matter hereof,
including, without limitation, the Non-Competition Agreement, dated
July 25, 2001, among Delta, Northwest, American and Worldspan.


 


SECTION
13.  Counterparts.


 


This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
be considered one and the same instrument.


 


[Signature page follows]


 


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IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of this 30th day
of June, 2003.


 


 


	
  AMERICAN AIRLINES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Beverly Goulet

  	
   

  
	
   

  	
   Its:

  	
  VP-Corp. Development and Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WORLDSPAN, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Paul J. Blackney

  	
   

  
	
   

  	
   Its:

  	
  President and Chief Executive Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TRAVEL TRANSACTION PROCESSING

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Rakesh Gangwal

  	
   

  
	
   

  	
   Its:

  	
  President

  	
   

  
						



 


 


[American Non-Competition Agreement]