MUTUAL SETTLEMENT AND TERMINATION AGREEMENT
-------------------------------------------
THIS MUTUAL SETTLEMENT AND TERMINATION AGREEMENT (this "Agreement") is
executed as of this 23rd day of August 2000, to be effective as of May 3, 2000
(the "Effective Date"), by and among TRAVELNOW.COM INC., a Florida corporation
with principal offices at 318 Park Central Square, Suite 306, Springfield,
Missouri 65806 (the "Company") and JOHN CHRISTOPHER NOBLE, an individual
residing at 2431 E. Montclair Court, Springfield, Missouri 65806 ("Employee").
WHEREAS, the Company and Employee entered into that certain Employment
Agreement effective as of October 1, 1999 and amended on January 1, 2000 (the
"Employment Agreement"); and
WHEREAS, the Company and Employee desire to terminate the Employment
Agreement, with such termination to be effective as of the Effective Date, all
upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, the receipt of
which consideration is hereby acknowledged, the parties, intending to be legally
bound, agree as follows:
1. Resignation and Termination. As of the Effective Date, Employee resigns
as a director, co-chief executive officer and secretary of the Company, and the
Company accepts such resignations. Employee's employment with the Company will
conclude, and, except as expressly provided herein, the Employment Agreement
will be terminated and be of no further force or effect.
(a) Employee will have no duties or obligations to perform for the
Company, except as expressly provided in this Agreement and except for
Employee's duties and obligations pursuant to Sections 7.1 (Trade Secrets),
7.2 (Ownership of Trade Secrets; Assignment of Rights), 7.3 (Agreement Not
to Compete) and 9 (Injunctive Relief) of the Employment Agreement that
shall remain in full force and effect and shall survive for the periods
specified therein. In the event of any conflict or inconsistency between
the terms of the Employment Agreement and the terms of this Agreement, the
terms of this Agreement shall control.
(b) The parties acknowledge that the Employee's employment with the
Company has been concluded by mutual agreement of the parties as provided
in Section 8.1(1) and not for any other reason. Neither party will make any
statements to any employee or agent of the Company or to any other third
party to the contrary of the foregoing.
1
<PAGE>
2. Compensation and Benefits.
(a) Employee's compensation shall continue as provided in the
Employment Agreement until November 2, 2001, [i.e., eighteen (18) months
after the Effective Date] and all applicable taxes will be withheld from
such compensation.
(b) Employee shall be entitled to continue coverage (adding family
coverage if Employee elects to do so) under the Company's medical insurance
plan in accordance with the requirements of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), and the Company agrees to
reimburse Employee each month for the cost of Employee's COBRA benefits
until the earlier of the following dates: (i) if Employee obtains
employment, the date that Employee becomes eligible to receive medical
insurance coverage as a result of such employment or (ii) eighteen (18)
months after the Effective Date. Nothwithstanding the foregoing the
Company's obligation to reimburse the cost of Employee's COBRA benefits
will be limited to $750.00 dollars per month during the eighteen months
after the Effective Date of this Agreement.
(c) The life insurance policy currently being maintained by the
Company on the life of Employee in the amount of $5,000,000 may be
transferred to and assumed by Employee as soon as practical after the
Effective Date, with Employee assuming all obligations to pay any premiums
thereon and having the right to designate such beneficiaries as Employee
may determine in his sole discretion; provided, that the Company shall not
be required to pay any costs or assume any obligations in connection
therewith arising after May 3, 2000.
(d) The Company shall pay Employee compensation for any earned but
unused vacation or sick leave equal to three weeks pay subject to
withholding of all applicable taxes.
(e) Employee certifies he has submitted all expenses to be reimbursed
pursuant to Section 3.4 of the Employment Agreement. Employee acknowledges
receipt of payment in full for all expense reimbursement requests submitted
by Employee prior to the Effective Date.
(f) Employee acknowledges that certain Demand Promissory Note, dated
April 18, 2000, between the Company and Employee remains an obligation of
Employee after the execution of this Agreement and is enforceable against
Employee in accordance with its terms. Employee acknowledges that he has
been advised demand will be made at the time the common shares of the
Company are marginable or at such time as the Board of Directors of the
Company may determine is in the best interest of the Company.
(g) As of the Effective Date, Employee certifies that he discontinued
use of all Company credit cards and accounts upon which he was authorized
as an Employee to utilize issued in the name of the Company and will return
all such credit cards and other written evidence of authority to the
2
<PAGE>
Company immediately. Employee agrees that all charges on Company credit
cards occurring after May 3, 2000 will be deducted from Employee's salary
continuation payments called for by Section 2(a) of this Agreement.
(h) The Company agrees to pay the student loans of Employee (the
"Loans") in the amount of $16,526.25.
(i) Employee may elect to retain the cellular phone issued to Employee
by the Company in the course of his employment with the Company. If
Employee makes such election, he must notify the telecommunications carrier
within 30 days of the Effective Date, causing the transfer of the account
to Employee. On the 30th day following the Effective Date the Company will
terminate this account. All charges incurred by Employee from and after the
Effective Date will be the responsibility of the Employee and may by offset
against sums owed to Employee under this Agreement. The Company and
Employee agree that the value of the cellular phone is equal to $50.00.
(j) Employee shall retain the Dell laptop computer, all accessories
and back-up hard drive issued to Employee in the course of his employment
with the Company. The Company and Employee agree that the value of the Dell
laptop computer, all accessories and back-up hard drive is equal to
$9,518.78.
(k) The Company agrees to pay charges of $4,065.00 which Employee has
acknowledged were for personal expenses incurred by Employee during a
personal trip to and stay in New Orleans, Louisiana during December 1999
and January 2000.
(l) The Company agrees to pay charges of $1,139.94 for suits purchased
in Hong Kong by Employee for Employee's personal use.
(m) The Company agrees to pay $2,356.54 for certain personal sports
equipment purchased in Denver, Colorado by Employee for Employee's personal
use.
(n) The Company agrees to pay $2,547.03 taken as a cash advance by
Employee on January 3, 2000.
(o) To the extent any of the items included in this Section 2 result
in taxable income to Employee, Employee agrees that he is responsible for
any taxes resulting therefrom.
(p) Employee agrees that he will refinance the 1999 GMC Yukon Denali
[which was used as security for financing its purchase and for which the
Company and Employee are reflected as joint obligors]. Employee agrees that
this refinancing will eliminate the Company as an obligor and will be
completed as soon as possible but in no event later than 60 days from the
Effective Date. Employee further agrees that if the refinancing has not
occurred within 60 days from the Effective Date, the Company may withhold
such sums from the amounts due to Employee under this Agreement as are
reasonable and necessary to protect the financial position of the Company.
3
<PAGE>
3. Transfer of Company Stock owned by Employee.
Employee agrees that he will not, directly or indirectly, sell or
attempt to sell, transfer or attempt to transfer, assign or otherwise
dispose or attempt to dispose, or grant a proxy (a "Transfer") of all or
any portion of the Company stock owned by Employee (the "Stock "), except
in accordance with that certain Standstill Agreement executed by the
Company and Employee a copy of which is attached hereto.
4. Mutual Releases.
(a) Subject to Section 4(c), Employee, for himself and his heirs and
assigns, jointly and severally, hereby releases and forever discharges the
Company and its previous, current or future shareholders, directors,
officers, employees, agents, parents, subsidiaries, affiliates, successors
and assigns, jointly and severally, from any and all causes of action,
claims, demands, actions, suits, proceedings, obligations, damages or
liabilities, known or unknown, now or previously existing or that might
arise at any time in the future, whether at law, in equity or by statute
and whether in tort, contract or otherwise, based on, caused by or arising
from or in connection with (i) the Employment Agreement, (ii) Employee's
employment with the Company, (iii) the conclusion of Employee's employment
with the Company, and (iv) any rights at law, in equity or by statute
(federal, state or local) meant to protect workers in their employment
relationships, including but not limited to the Older Workers Benefit
Protection Act, the Age Discrimination in Employment Act, the Missouri
Human Rights Act, the Missouri Service Letter statute, Title VII of the
Civil Rights Act of 1964, the Americans With Disabilities Act, the Equal
Pay Act, 42 U.S.C. Sections 1981, 1983 and 1985, the Employee Retirement
Income Security Act, the Rehabilitation Act, the Fair Labor Standards Act,
the Family Medical & Leave Act, the Labor Management Relations Act,
Workers' Compensation laws, and Unemployment Compensation laws or any other
statutory, common law, contractual, legal, equitable, or constitutional
theory whatsoever.
(b) Subject to Section 4(c), the Company, for itself and its previous,
current or future shareholders, directors, officers, employees, agents,
parents, subsidiaries, affiliates, successors and assigns, jointly and
severally, hereby releases and forever discharges the Employee and his
heirs and assigns, jointly and severally, from any and all causes of
action, claims, demands, actions, suits, proceedings, obligations, damages
or liabilities, known or unknown, now or previously existing, whether at
law, in equity or by statute and whether in tort, contract or otherwise,
based on, caused by or arising from or in connection with (i) the
Employment Agreement, (ii) Employee's employment with the Company, and
(iii) the conclusion of Employee's employment with the Company.
(c) The foregoing releases will not limit any action to enforce this
Agreement.
4
<PAGE>
5. Fees and Expenses. Each of the parties hereto will bear its own costs
and expenses in connection with this Agreement and the transactions contemplated
hereby.
6. Confidentiality. In addition to the confidentiality provisions that
survive in accordance with the terms of this Agreement, the parties agree and
acknowledge that they will not discuss the terms of this Agreement without the
prior written consent of the other, unless such disclosure is required by law or
legal process. Employee further agrees that all material, non-public information
concerning the Company and its proposed activities that the Company (or persons
acting on its behalf) has previously provided to Employee or that Employee
obtains after the Effective Date from the Company or from any other source (in
either case, whether orally or in writing), including without limitation either
directly or indirectly the identity of the Company's affiliates, the Company's
business plan, the identity of any actual or potential parties to any financial
or business combination transaction with the Company, and the terms of any such
proposed transaction, is confidential and the property of the Company, and
Employee agrees that such information will not be disclosed to any person or
entity.
7. Severability. The provisions of this Agreement will be deemed severable
and the invalidity or unenforceability of any provision will not affect the
validity or enforceability of the other provisions hereof. If any provision of
this Agreement, or the application thereof to any person or entity or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision will be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid and unenforceable
provision, and (b) the remainder of this Agreement and the application of such
provision to other persons, entities or circumstances will not be affected by
such invalidity or unenforceability, nor will be such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
8. Miscellaneous. All of the provisions of Section 10 (Miscellaneous) of
the Employment Agreement remain in full force and effect and are hereby
incorporated into this Agreement by this reference.
9. Counsel. Employee acknowledges that (i) the Company has been represented
by counsel in the drafting and negotiations of this Agreement; (ii) the
Company's counsel does not represent him personally in this matter or in any
other matter; and (iii) the Company's counsel has informed Employee of the
importance of representation of counsel in the negotiation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
TRAVELNOW.COM INC. JOHN CHRISTOPHER NOBLE
By: /s/ H. Whit Ehrler /s/ Chris Noble
------------------------------ -------------------------------------
Name: H. Whit Ehrler
------------------------------
Title: Vice President & CFO
------------------------------
5
<PAGE>
STANDSTILL AGREEMENT
--------------------
THIS STANDSTILL AGREEMENT, effective July 13, 2000 (this "Agreement"), is
made and entered into by and among TravelNow Inc., a Florida corporation
("TravelNow") and the undersigned individual holders of TravelNow's capital
stock (each individually a "Stockholder" and collectively the "Stockholders").
RECITALS
WHEREAS, each Stockholder beneficially owns as of the date of this
Agreement, the number of shares of common stock, par value $0.01 per share, of
TravelNow set forth on Schedule A attached hereto along with any stock into
which such shares of common stock have been exchanged or any stock resulting
from any stock split, stock dividend, recapitalization, restructuring,
reclassification or similar transaction involving such shares of common stock
(collectively, the "Common Stock");
WHEREAS, TravelNow and the Stockholders agree that in order to protect the
long-term value of the Common Stock, it is in the best interest of both
TravelNow and the Stockholders for the Stockholders to retain ownership of the
Common Stock pursuant to the terms of this Agreement; and
WHEREAS, TravelNow and Stockholder desire to enter into this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises hereinafter made,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Limitations. For a period of one (1) year from the date of this
Agreement, without the prior written consent of the Board of Directors of
TravelNow, specifically expressed in a resolution adopted by a majority of the
directors of TravelNow who are not affiliates of the Stockholder in question or
any corporation or other entity controlling, controlled by or under common
control with the Stockholder in question (each a member of the "Stockholder
Group"), no Stockholder shall, nor shall any Stockholder permit any member of
his/her Stockholder Group to, in any manner, directly or indirectly:
(a) transfer, sell, pledge or encumber, or offer or agree to transfer,
sell, pledge or encumber, directly or indirectly, any of the Common
Stock, provided, however, that a Stockholder may (i) transfer Common
Stock in a privately negotiated transfer in which the transferee
agrees to bound by the terms of this Agreement and executes a copy
hereof (each a "Permitted Transferee"), or (ii) pledge or encumber, in
the aggregate, thirty percent (30%) of the shares of Common Stock held
by such Stockholder; or
(b) publicly announce or disclose any intention, plan or arrangement
inconsistent with the foregoing.
1
<PAGE>
2. Non-Conforming Transfers Void. Any transfer, sale, pledge or encumbrance
or attempted transfer, sale, pledge, or encumbrance of Common Stock made in
violation of this Agreement shall be void ab initio and TravelNow shall not be
required to, and its transfer agent shall be instructed not to, recognize any
such transfer or sale.
3. Consideration. Each Stockholder acknowledges that in return for his/her
promises under this Agreement, he/she is receiving the benefit preserving the
value of the Common Stock through the mutual agreement of the other Stockholders
and that such benefit together with other good and valuable consideration set
forth in Schedule A attached hereto, is sufficient consideration for his/her
promises hereunder.
4. No Limitation on Acquisition. Except as expressly set for the in this
Agreement, nothing in this Agreement shall be construed in any manner to limit
any Stockholder's rights to purchase or otherwise acquire additional shares of
capital stock of TravelNow in any manner or from any person(s) or entity(ies).
5. Merger Clause. This Agreement constitutes the complete agreement between
the parties hereto with respect to the subject matter hereof and shall continue
in full force and effect until terminated by mutual agreement of the parties
hereto or pursuant to the terms hereof.
6. Headings; Interpretation. The section headings used herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision hereof is held to be invalid, illegal
or unenforceable under any applicable law or rule in any jurisdiction, such
provision will be ineffective only to the extent of such invalidity, illegality,
or unenforceability, without invalidating the remainder of this Agreement. This
Agreement shall be interpreted such that any rule of construction to the effect
that any ambiguities are resolved against the drafting party shall not be
employed.
7. Choice of Law. This Agreement shall be construed, performed and enforced
in accordance with, and governed by the internal laws of the State of Missouri,
without giving effect to the principles of conflicts of law thereof, and each
party consents to personal jurisdiction in such state and voluntarily submits to
the jurisdiction of the courts of such state in any action or proceeding
relating to this Agreement.
8. Modification; Waiver. This Agreement may not be modified or amended and
no provision hereof may be waived, in whole or in part, except by a written
agreement signed by the parties hereto. No waiver of any breach or default
hereunder shall be considered valid unless in writing, and no such waiver shall
be deemed a waiver of any subsequent breach or default.
9. Remedy. Each Stockholder acknowledges that TravelNow and each other
Stockholder would not have an adequate remedy at law for money damages in the
event that this Agreement is not performed in accordance with its terms and
therefore each Stockholder agrees that TravelNow and each other Stockholder
shall be entitled to specific enforcement of the terms hereof, without being
required to post any bond, in addition to any other remedy to which it may be
entitled, at law or in equity.
2
<PAGE>
10. Notices. All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is mailed
by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
(a) If to TravelNow: With a copy to:
TravelNow.com, Inc. Shook, Hardy & Bacon LLP
318 Park Central East, Suite 306 1010 Grand Boulevard
Springfield, MO 65806 Kansas City, MO 64106
Facsimile No.: (417)-520-1159 Facsimile No.: (816) 842-3190
Attn: Stephan W. Dahlgren Attn.: Kevin R. Sweeney, Esq.
(b) If to a Stockholder or Permitted Transferee:
At the address set forth in TravelNow's corporate records.
11. Counterparts. This Agreement may be executed in counterparts, all of
which shall be taken together as one and the same instrument.
12. Successors and Assigns. Except as otherwise expressly provided herein,
this Agreement shall be binding upon and inure to the benefit of TravelNow, its
successors and assigns, and each Stockholder and his/her successors and assigns,
provided, however, that no Stockholder may assign this Agreement without the
express written consent of TravelNow.
13. Further Assurances. Each party hereto shall cooperate and shall take
such further action and shall execute and deliver such further documents as may
be reasonably requested by any other party in order to carry out the provisions
and purposes of this Agreement. IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement on the day and year first above written.
TRAVELNOW.COM, INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
3
<PAGE>
STOCKHOLDERS:
By: By:
------------------------------------ -------------------------------------
Name: Jeff Wasson Name: Stephen W. Dahlgren
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Chris Noble Name: Jamie Coppedge
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Jerry W Rutherford &
Ruth E Rutherford Name: Chris Lynch
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Ross E Summers &
Janice M Summers Name: Bill Perkin
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Marvin McDaniel & Name: Randy J Tiller &
Donna L McDaniel Nancy R Tiller
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Andrew Shepp Name: Joann Tindall & Forrest Tindall
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Nathan Ameye Name:
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Bill Rutherford &
Martha Rutherford Name: Doug Luvey
------------------------------------ -------------------------------------
4
<PAGE>
By: By:
------------------------------------ -------------------------------------
Name: Billy Anderson Name:
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Joe Lurvey & Margaret Lurvey Name:
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: April Weber Name:
------------------------------------ -------------------------------------
By: By:
------------------------------------ -------------------------------------
Name: Monica Tindall Name:
------------------------------------ -------------------------------------
5
<PAGE>
TRAVELNOW.COM INC.
STANDSTILL AGREEMENT
SCHEDULE A
Number
Shareholder Names Of Shares Consideration
----------------- --------- -------------
Jeff Wasson 1,895,067 $189.51
Chris Noble 1,832,767 $183.28
Jerry W. Rutherford & Ruth E. Rutherford 1,376,569 $137.66
Ross E. Summers & Janice M Summers 439,719 $ 43.97
Marvin McDaniel and Donna L McDaniel 420,065 $ 42.01
Andrew Shepp 299,812 $ 29.98
Stephen W. Dahlgren 282,705 $ 28.27
Jamie Coppedge 133,250 $ 13.32
Chris Lynch 133,250 $ 13.32
Bill Perkin 106,601 $ 10.66
Randy J. Tiller & Nancy R. Tiller 83,272 $ 10.00
Joann Tindall & Forrest Tindall 74,618 $ 10.00
Nathan Ameye 66,623 $ 10.00
Bill Rutherford & Ruth E. Rutherford 42,642 $ 10.00
Billy Anderson 32,411 $ 10.00
Monica Tindall 20,987 $ 10.00
Doug Lurvey 7,000 $ 10.00
Joe Lurvey and Margaret Lurvey 33,311 $ 10.00
April Weber and Erich Weber 29,737 $ 10.00
--------- -------
7,310,406 $781.98
========= =======
* Based upon [*$0.0001*] per share but in no event less than $10.00.
