Execution Copy
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT, dated as of January 3, 2001 (this "Agreement"),
is made and entered into by and among Hotel Reservations Network, Inc., a
Delaware corporation ("Parent"), Wonsub, Inc., a Delaware corporation and a
direct wholly-owned subsidiary of Parent ("Sub"), and the undersigned
stockholder ("Stockholder").
WITNESSETH
WHEREAS, concurrently herewith, Parent, Sub and TravelNow.com Inc., a
Delaware corporation (the "Company"), are entering into an Agreement and Plan of
Merger (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), pursuant to which Sub will be merged with and into the
Company (the "Merger"); capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained herein and the benefits to be
received by the parties under the terms of the Merger Agreement, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement:
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(a) "Acquisition Proposal" shall mean any agreement, offer or proposal
(other than the transactions among the Company, Parent and Sub contemplated in
the Merger Agreement) involving the Company or any of its Subsidiaries for: (i)
any merger, consolidation, share exchange, recapitalization, reorganization,
business combination, or other similar transaction, (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of 10% or more of the
assets of the Company and its Subsidiaries, taken as a whole, in a single
transaction or series of transactions, or (iii) any tender offer or exchange
offer for all or any portion of the outstanding shares of capital stock of the
Company or any of its Subsidiaries or the filing of a registration statement
under the Securities Act of 1933 in connection therewith, but shall not include
the Second Transaction (as defined herein).
(b) "Affiliate" of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first Person.
(c) "Alternative Closing Date" shall have the meaning ascribed to such
term in Section 4(b).
(d) "Alternative Transaction" shall have the meaning ascribed to such
term in Section 4(a).
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(e) "Alternative Transaction Consideration" shall mean all cash,
securities, settlement or termination amounts, notes or other debt instruments,
and other consideration received or to be received, directly or indirectly, by
Stockholder and his Affiliates (excluding officers and directors of the Company)
in connection with or as a result of an Alternative Transaction or any
agreements or arrangements (including, without limitation, any employment
agreement, consulting agreement, non-competition agreement, confidentiality
agreement, settlement agreement or release agreement) entered into, directly or
indirectly, by Stockholder or his Affiliates (excluding officers and directors
of the Company) as a part of or in connection with the Alternative Transaction
or associated Acquisition Proposal.
(f) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean bearing "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include (i) securities Beneficially Owned by all other Persons (who are
Affiliates of such Person excluding officers and directors of the Company) who
together with such Person would constitute a "group" within the meaning of
Section 13(d)(3) of the Exchange Act and (ii) securities Beneficially Owned by
that Person's spouse and children.
(g) "Cash Profit" shall have the meaning ascribed to such term in
Section 4(e).
(h) "Current Transaction Consideration" shall mean the sum of all
amounts to be received, directly or indirectly, by Stockholder and his
Affiliates pursuant to all of the Transaction Documents as in effect on the date
hereof.
(i) "Deferred Consideration" shall have the meaning ascribed to such
term in Section 4(d).
(j) "Discount Rate" shall have the meaning ascribed to such term in
Section 4(d).
(k) "Disposition Shares" shall have the meaning ascribed to such term in
Section 4(c).
(l) "Person" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or other entity.
(m) "Profit Receipt Date" shall have the meaning ascribed to such term
in Section 4(e)(ii).
(n) "Second Transaction" shall have the meaning ascribed to such term in
Section 4(g).
(o) "Second Transaction Consideration" shall mean the sum of all amounts
to be received, directly or indirectly, by Stockholder and his Affiliates
(excluding officers and directors of the Company) in connection with or as a
result of a Second Transaction or any agreements or arrangements entered into,
directly or indirectly, by Stockholder or his Affiliates as a part of or in
connection with the Second Transaction.
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(p) "Shares" shall mean, with respect to Stockholder, all shares of
Company Common Stock held of record or Beneficially Owned by Stockholder,
whether currently issued or hereinafter acquired, and for the purposes of
Section 4 of this Agreement shall also include, without duplication, any
securities convertible into, or exercisable or exchangeable for, shares of
Company Common Stock, including without limitation any stock options held of
record or Beneficially Owned by Stockholder.
(q) "Termination Date" shall mean the date that the Merger Agreement has
been terminated.
(r) "Underlying Shares" shall mean the shares of Company Common Stock
issuable to Stockholder upon the exercise by Stockholder of the Options
Beneficially Owned by him.
2. Voting Matters.
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(a) From and after the date of this Agreement and ending as of the first
to occur of the Effective Time or the Termination Date, at any meeting of the
holders of Company Common Stock, however called, or in any other circumstance
upon which the vote, consent or other approval of holders of the Company Common
Stock is sought, Stockholder shall vote (or cause to be voted) his issued and
outstanding Shares:
(i) against any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or this
Agreement; and
(ii) against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement):
(A) any Acquisition Proposal other than an Acquisition Proposal
with Parent or any Affiliate thereof, and
(B) to the extent that such (1) are intended to, or could
reasonably be expected to, impede, interfere with, delay, postpone, or adversely
affect the Offer, the Merger or the transactions contemplated by the Merger
Agreement or this Agreement or (2) are intended to, or could reasonably be
expected to, implement or lead to any Acquisition Proposal (other than an
Acquisition Proposal with Parent or any Affiliate thereof): (x) any change in a
majority of the persons who constitute the board of directors of the Company;
(y) any change in the present capitalization of the Company or any amendment of
the Company's certificate of incorporation or by-laws (other than as expressly
contemplated by the Merger Agreement); or (z) any other material change in the
Company's corporate structure or business.
(b) From and after the date of this Agreement and ending as of the
first to occur of the Effective Time or the Termination Date, Stockholder shall
not enter into any agreement or understanding with any Person the effect of
which would be inconsistent with or violate the provisions and agreements
contained in this Section 2.
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(c) Nothing herein shall in any way restrict or limit Stockholder from
taking any action in his capacity as a director or officer of the Company or
otherwise fulfilling his fiduciary obligations as a director and officer of the
Company.
3. Tender Agreement and Option Exercise.
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(a) Stockholder hereby agrees that he shall (i) tender all of his Shares
into the Offer promptly, and in any event no later than the third business day
following the commencement of the Offer, and (ii) not withdraw any Shares so
tendered prior to the occurrence of the Termination Date.
(b) In the event that (i) the Minimum Condition is not satisfied, (ii)
Sub notifies Stockholder that Sub is prepared to close the tender but for the
fact that the Minimum Condition is not satisfied, and (iii) the tender by
Stockholder of the Underlying Shares, together with the tender by any other
stockholders of the Company of their Underlying Shares pursuant to any
Stockholder Agreements among Parent, Sub and such stockholders would cause the
Minimum Condition to be satisfied, then Stockholder hereby agrees that, at any
time prior to the Termination Date, immediately upon the request of Sub, he
shall exercise all of the Options Beneficially Owned by him, the exercise price
of which is then equal to or less than the Offer Consideration, and immediately
tender the Underlying Shares received upon such exercise into the Offer (and not
withdraw such Underlying Shares so tendered). Sub shall advance to Stockholder
the funds necessary to pay the exercise price of such Options, and Stockholder
shall repay Sub the amount of such advance, without interest, immediately upon
receipt of the Offer Consideration by him for his Underlying Shares.
(c) In the event that (i) the Offer has been consummated, (ii) the
Stockholder has not exercised his Options pursuant to Section 3(b), (iii) Sub
has acquired pursuant to the Offer a number of shares of Company Common Stock
which constitutes, on a fully diluted basis (as defined in Section 1.1 of the
Merger Agreement), less than 90% of the outstanding shares of Company Common
Stock, and (iv) the shares of Company Common Stock acquired by Sub pursuant to
the Offer or otherwise, together with the Underlying Shares and the Underlying
Shares under any other Stockholder Agreements among Parent, Sub and any other
stockholders of the Company, aggregate at least 90% of the outstanding shares of
Company Common Stock, then Stockholder hereby agrees that, immediately upon the
request of Sub, he shall (y) exercise all of the Options Beneficially Owned by
him, the exercise price of which is then equal to or less than the Offer
Consideration, and (z) immediately sell to Sub each Underlying Share received
upon such exercise, free and clear of all Liens, in consideration of an amount
equal to the Offer Consideration as in effect on the date of this Agreement.
(d) Except as may be required by Section 3(b) or Section 3(c),
Stockholder hereby agrees that he shall not exercise any Options that he
Beneficially Owns.
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4. Capture. The Stockholder agrees:
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(a) In the event that the Merger Agreement shall have been terminated
under circumstances where Parent is entitled to receive a fee, Parent, as
provided in this Section 4, shall be entitled to receive ninety percent (90%) of
all Profit (as defined below) received by the Stockholder from the consummation
of any Acquisition Proposal that is entered into (including by way of
announcement of an intent to commence a tender or exchange offer) or consummated
upon such termination or within 548 days thereafter (an "Alternative
Transaction").
(b) "Profit" shall be calculated as of the date of the consummation of
the Alternative Transaction (the "Alternative Closing Date") and shall mean the
excess, if any, of (i) the Alternative Transaction Consideration (as defined
below), over (ii) the product of (determined without duplication) the sum of (x)
the number of Shares held by the Stockholder and that were sold, exchanged or
otherwise disposed of as a part of the Alternative Transaction and (y) the
number, if any, of Disposition Shares (as defined below), times (z) $4.16 (the
"Current Transaction Consideration").
(c) "Alternative Transaction Consideration" shall mean all cash,
securities, settlement or termination amounts, notes, or other debt instruments,
and other consideration received or to be received, directly or indirectly, by
the Stockholder (i) in respect of the Shares held by the Stockholder that were
sold, exchanged or otherwise disposed of (x) as a part of the Alternative
Transaction and (y) by the Stockholder after the termination of the Merger
Agreement and prior to the Alternative Closing Date (the Shares under this
clause (y) being referred to as "Disposition Shares") and (ii) in respect of any
agreements or arrangements (including, without limitation, any employment
agreement (except a bona fide employment agreement pursuant to which the
Stockholder is required to devote, and under which the Stockholder in good faith
intends to devote, substantially, all of his business time and effort to the
performance of executive services for the Company), consulting agreement, non-
competition agreement, confidentiality agreement, settlement agreement or
release agreement) entered into, directly or indirectly, by the Stockholder as a
part of or in connection with the Alternative Transaction.
(d) For purposes of determining whether a Profit exists and the value of
the Alternative Transaction Consideration (i) all securities and other non-cash
items shall be valued as mutually agreed, and, absent such agreement, based upon
the fair market value thereof as determined by an independent expert selected by
Parent and who is reasonably acceptable to the Stockholder (the cost of which
shall be equally borne by Parent and the Stockholder), (ii) all deferred
payments or consideration ("Deferred Consideration") shall be discounted to the
net present value thereof at a discount rate (the "Discount Rate") as mutually
agreed or as determined by such independent expert to be a market rate, and
(iii) all contingent payments will be assumed to have been paid.
(e) If a Profit is determined to exist, then Parent shall be entitled to
participate in such Profit as follows:
(i) To the extent that a Profit is determined to exist solely by
reason of the receipt, as of the Alternative Closing Date, of Alternative
Transaction Consideration in the form of cash and equity securities and not
taking into account any other Alternative Transaction Consideration (such Profit
being referred to as a "Cash Profit"), then the Stockholder shall:
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(A) pay and assign to Parent ninety percent (90%) of the amount
of such Cash Profit with such payment and assignment being comprised of cash and
equity securities in the same ratio as such items comprised the Alternative
Transaction Consideration, and
(B) assign to Parent ninety percent (90%) of the amount of all
Alternative Transaction Consideration consisting of items other than cash and
equity securities.
(ii) If clause (i) is not applicable and if a Profit is determined
to exist, then, at such time as a Profit Receipt Date (as defined herein) has
occurred, Stockholder shall then promptly assign to Parent ninety percent (90%)
of the amount of all Alternative Transaction Consideration that is payable or
that may be received from and after the Profit Receipt Date. "Profit Receipt
Date" shall mean that point in time that the amount of cash (including cash
proceeds from debt securities, other non-cash items, Deferred Compensation and
contingent payments) and equity securities actually received by the Stockholder
as a part of the Alternative Transaction Consideration (or from the disposition
of any portion of the Alternative Transaction Consideration) equals the amount
of the Current Transaction Consideration.
(f) Any assignment of non-cash items of Alternative Transaction
Consideration by Stockholder hereunder shall be free and clear of all Liens
(other than those arising under the terms of the Alternative Transaction
Consideration assigned) and shall include any registration or similar rights to
which the Stockholder is entitled. Any payment of cash items of Alternative
Transaction Consideration by Stockholder hereunder shall be made to Parent or
its designee, within two (2) business days of its receipt by the Stockholder.
Any non-cash items to be delivered to Parent shall be delivered with two (2)
business days following receipt by Stockholder. Notwithstanding the provisions
of this Section 4(f), upon Parent's written request to Stockholder, Stockholder
shall direct the purchaser in the Alternative Transaction to forward the portion
of the Profit to which Parent is entitled hereunder directly to Parent at the
time such Profit would otherwise by paid to Stockholder.
(g) In the event that after the date of this Agreement, the amount of
consideration to be received by the holders of Company Common Stock in
connection with the Merger should be increased (a "Second Transaction"), then,
as may be requested by Parent, the Stockholder shall either (i) execute and
deliver to Parent such documents or instruments as may be necessary to waive the
right to receive ninety percent (90%) of such increase to the extent that such
increase results in any Profit or (ii) tender and pay and assign, or cause to be
paid and assigned, to Parent, or its designee, ninety percent (90%) of the
Profit realized from such Second Transaction in the same form of consideration
delivered by Parent to the Stockholder in connection with the Second
Transaction. As used in this Section 4(g), Profit shall mean an amount equal to
the excess, if any, of (y) the per share Second Transaction Consideration over
(z) $4.16.
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5. Covenants, Representations and Warranties of Stockholder.
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(a) Stockholder hereby represents, warrants and covenants to Parent and
Sub as follows:
(i) Ownership. Stockholder is either (A) the record and Beneficial
Owner of, or (B) the Beneficial Owner but not the record holder of, the number
of issued and outstanding shares of Company Common Stock set forth on Part I of
Schedule A hereto and the Options set forth on Part II of Schedule A hereto. As
of the date of this Agreement, the shares of Company Common Stock set forth on
Schedule A hereto constitute all of the issued and outstanding Shares owned of
record or Beneficially Owned by Stockholder. Except as otherwise set forth in
Schedule A hereto, Stockholder has sole power of disposition, sole power of
conversion, sole power to demand appraisal rights and sole power to agree to all
of the matters set forth in this Agreement, in each case with respect to all of
the Shares set forth on Schedule A hereto, with no material limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(ii) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of Stockholder's obligations
under this Agreement. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its terms. There
is no beneficiary or holder of a voting trust certificate or other interest of
any trust of which Stockholder is trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by Stockholder of
the transactions contemplated hereby. If Stockholder is married and
Stockholder's Shares or Options constitute community property, this Agreement
has been duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, Stockholder's spouse, enforceable against such person in
accordance with its terms.
(iii) No Conflicts. Except for the filing of an amendment to
Stockholder's Schedule 13D or 13G, if any, and filings required under Section 16
of the Exchange Act, if any, no filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by Stockholder or the consummation
by Stockholder of the transactions contemplated hereby, except where the failure
to obtain or make such consent, permit, authorization, approval or filing would
not interfere with Stockholder's ability to perform his obligations hereunder,
and none of the execution and delivery of this Agreement by Stockholder, the
consummation by Stockholder of the transactions contemplated hereby or
compliance by Stockholder with any of the provisions hereof shall (A) result in
a violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Stockholder is a party or by which
Stockholder or any of his properties or assets may be bound, or (B) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to Stockholder or any of his properties or assets, in each such case
except to the extent that any conflict, breach, default or violation would not
interfere with the ability of Stockholder to perform his obligations hereunder.
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(iv) No Encumbrances. Except (A) as required herein and (B) items
listed in Part I to Schedule A which shall be released or modified to comply
with Section 5(a)(vi) not later than 10 business days after the date hereof, at
all times thereafter during the term hereof, all of Stockholder's Shares and
Options as set forth on Schedule I hereto will be held by Stockholder, an
Affiliate of Stockholder, or by a nominee or custodian for the benefit of
Stockholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any liens, claims, understandings or
arrangements that do not limit or impair Stockholder's ability to perform his
obligations under this Agreement.
(v) No Solicitation. Stockholder shall comply with the terms of
Section 6.2 of the Merger Agreement.
(vi) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated hereby, from and after the date of this Agreement and
ending as of the first to occur of the Effective Time or the 548th day following
the Termination Date, Stockholder shall not, and shall cause each of his
Affiliates who Beneficially Own any of Stockholder's Shares not to, directly or
indirectly, without the consent of Parent: (A) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of his Shares, or any interest
therein, (B) grant any proxies or powers of attorney, deposit any or all of his
Shares into a voting trust or enter into a voting agreement with respect to his
Shares, (C) enter into any agreement or arrangement providing for any of the
actions described in clause (A) or (B) above, or (D) take any action that could
reasonably be expected to have the effect of preventing or disabling Stockholder
from performing his obligations under this Agreement; provided, however, that
after the occurrence of the Termination Date, Stockholder may, in accordance
with Section 4, sell or tender any or all of his Shares, or take any of the
other actions described above, in connection with an Acquisition Proposal.
(vii) Further Assurances. From time to time, at Parent's request and
without further consideration, Stockholder shall execute and deliver such
additional documents as may be necessary or desirable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
(b) Parent and Sub hereby represent, warrant and covenant to Stockholder
as follows:
(i) Organization, Standing and Corporate Power. Each of Parent and
Sub is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, with adequate corporate power and authority
to own its properties and carry on its business as presently conducted. Each of
Parent and Sub has the corporate power and authority to enter into and perform
all of its obligations under this Agreement and to consummate the transactions
contemplated hereby.
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(ii) No Conflicts. Except for the filing of an amendment to Parent's
Schedule 13D, no filing with, and no permit, authorization, consent or approval
of, any state or federal public body or authority is necessary for the execution
of this Agreement by either Parent or Sub and the consummation by Parent and Sub
of the transactions contemplated hereby, except where the failure to obtain such
consent, permit, authorization, approval or filing would not interfere with its
ability to perform its obligations hereunder, and none of the execution and
delivery of this Agreement by Parent or Sub, the consummation by Parent or Sub
of the transactions contemplated hereby or compliance by Parent and Sub with any
of the provisions hereof shall (A) conflict with or result in any breach of any
applicable organizational documents applicable to Parent or Sub, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Parent or Sub is a party or by which Parent
or Sub or any of Parent's or Sub's properties or assets may be bound, or (C)
violate any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to Parent or Sub or any of Parent's or Sub's properties or
assets, in each such case except to the extent that any conflict, breach,
default or violation would not interfere with the ability of Parent or Sub to
perform its obligations hereunder.
(iii) Corporate Action of Parent and Sub. Each of Parent and Sub has
taken all actions required by law, its certificate of incorporation and its
by-laws to consummate the transactions contemplated by this Agreement. This
Agreement constitutes the valid and binding obligations of Parent and Sub and is
enforceable in accordance with its terms, except as enforceability may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally.
(c) Stockholder hereby represents and warrants to Parentt and Sub that
the Board of Directors of the Company has approved the terms of this Agreement
and the transactions contemplated herein and such approval is sufficient to
render inapplicable to this Agreement and the transactions contemplated herein
the provisions of Section 203 of the Delaware General Corporation Law.
(d) Stockholder hereby represents and warrants to Parent and Sub that
Stockholder is a resident of the State of Missouri.
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6. Stop Transfer. From and after the date of this Agreement and ending as
of the first to occur of the Effective Time or the 548th day following the
Termination Date, Stockholder will not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of Stockholder's Shares, except as otherwise contemplated
hereby, including, without limitation, the proviso contained in Section
5(a)(vi).
7. Recapitalization. In the event of a stock dividend or distribution, or
any change in the Shares by reason of any split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall include,
without limitation, all such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged as
may be appropriate to reflect such event.
8. Stockholder Capacity. Except as set forth in Section 5(a)(v),
Stockholder does not make any agreement or understanding herein in his capacity
as a director or officer of the Company and nothing herein shall limit or affect
any action taken by Stockholder in such capacity.
9. Merger Agreement and Options. Stockholder hereby consents and agrees to
the treatment of Options Beneficially Owned by Stockholder or his Affiliates as
set forth in the Merger Agreement.
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
(b) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
(i) if to Parent or Sub, to:
Hotel Reservations Network, Inc.
8140 Walnut Hill Lane, Suite 800
Dallas, Texas 75231
Attn: Gregory S. Porter
Telecopy:
with copies to:
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Sayles, Lidji & Werbner
Renaissance Tower, Suite 4400
1201 Elm Street
Dallas, Texas 75270
Attn: Brian M. Lidji
Telecopy: (214) 939-8787
and
Vinson & Elkins L.L.P.
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201-2975
Attn: Jeffrey A. Chapman
Telecopy: (214) 999-7797
(ii) if to Stockholder, to:
with a copy to:
Shook, Hardy & Bacon, LLP
1010 Grand Blvd., 5th Floor
Kansas City, Missouri 64106-0607
Attn: Kevin R. Sweeney, Esq.
Telecopy: (816) 842-3190
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(e) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by Stockholder of any covenants or agreements
contained in this Agreement will cause Parent and Sub to sustain damages for
which they would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
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Parent or Sub shall be entitled to the remedy of specific performance of such
covenants and agreements and injunctive and other equitable relief in addition
to any other remedy to which they may be entitled at law or in equity.
(f) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(g) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(h) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any Person who or which is
not a party hereto; provided that, in the event of Stockholder's death, the
benefits and obligations of Stockholder hereunder shall inure to his successors
and heirs.
(i) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(j) Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this paragraph and shall not be deemed to be a
general submission to the jurisdiction of said Court or in the State of Delaware
other than for such purposes. Each party hereto hereby waives any right to a
trial by jury in connection with any such action, suit or proceeding.
(k) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement. This Agreement shall not be
effective as to any party hereto until such time as this Agreement or a
counterpart thereof has been executed and delivered by each party hereto.
(m) Trust Funds. In the event that any party hereto should receive any
funds that are to be paid to another party pursuant to the terms of this
Agreement, then the receiving party shall hold such funds in trust for the
12
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benefit of the party entitled to receive such funds and shall promptly pay such
funds to the party entitled to receive such funds in accordance with this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first written above.
PARENT: HOTEL RESERVATIONS NETWORK, INC.
By: /s/ Robert Diener
-----------------------------------
Robert Diener
President
SUB: WONSUB, INC.
By: /s/ Robert Diener
-----------------------------------
Robert Diener
President
STOCKHOLDER:
By: /s/
-----------------------------------
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SCHEDULE A
Part I
Part II
0
A-1
