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EXHIBIT 4
INVESTMENT BANKING
LEGG MASON WOOD WALKER, INCORPORATED
100 LIGHT STREET, 34TH FLOOR, BALTIMORE, MD 21202
410.539.0000 FAX: 410.454.4508
MEMBER NEW YORK STOCK EXCHANGE, INC./MEMBER SIPC
PERSONAL AND CONFIDENTIAL
December 27, 2000
Hotel Reservations, Network, Inc.
8140 Walnut Hill Lane
Suite 800
Dallas, TX 75231
Attention: Mr. Mel Robinson
President & Chief Financial Officer
Ladies and Gentlemen:
In connection with your consideration of a possible transaction with
TravelNow.com Inc., a Delaware company (the "Company"), the Company is prepared
to make available to you certain information concerning the business, operations
and assets of the Company. As a condition to such information being furnished to
you and your Representatives (as defined herein), you agree to treat any
information concerning the Company (whether prepared by the Company, its
advisors or otherwise and irrespective of the form of communication) which is
furnished to you or to your Representatives by or on behalf of the Company
(herein collectively referred to as the "Evaluation Material") in accordance
with the provisions of this letter agreement.
The term "Evaluation Material" shall be deemed to include all notes,
analyses, compilations, studies, interpretations or other documents prepared by
you or your Representatives which contain, reflect or are based upon, in whole
or in part, the information furnished to you or your Representatives pursuant
hereto. The term "Evaluation Material" does not include information which (i) is
or becomes generally available to the public other than as a result of a
disclosure by you or your Representatives, (ii) was within your possession prior
to its being furnished to you by or on behalf of the Company pursuant hereto, or
(iii) becomes available to you on a non-confidential basis from a source other
than the Company or any of its Representatives; provided that with respect to
clauses (ii) and (iii) above, the source of such information was not bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality known by you after reasonable investigations to be
owed to the Company or any other party with respect to such information.
You hereby agree that you recognize and acknowledge the competitive
value and the confidential and proprietary nature of the Evaluation Material and
the damage that could result to the Company if it is used for any purpose other
then the proposed transaction contemplated by this letter
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agreement or is disclosed to any third party, other than as set forth in this
paragraph. You and your Representatives agree that you shall use the
Evaluation Material solely for the purpose of evaluating a possible
transaction between the Company and you and not in any manner that is
competitive with or detrimental to the Company. You further agree that you
will keep the Evaluation Material confidential and that you will not
disclose any of the Evaluation Material in any manner whatsoever; provided,
however, that (i) you may make any disclosure of such information to which
the Company gives its prior written consent and (ii) any such information
may be disclosed to your employees, directors, agents or representatives
(collectively, your "Representative") who need to know such information in
connection with your evaluation of a possible transaction with the Company,
and who agree to keep such information confidential and who are provided with
a copy of this letter agreement and agree to be bound by the terms hereof
to the same extent as if they were parties hereto. In any event, you shall
be responsible for any breach of this letter agreement by any of your
Representatives from prohibited or unauthorized disclosure or use of the
Evaluation Material.
You hereby acknowledge that the Evaluation Material is being
furnished to you in consideration of your agreement that neither you, nor any
entity directly or indirectly controlled by you (collectively, an
"Affiliate"), will directly or indirectly propose to the Company or any
other person any transaction between you and the Company and/or its security
holders or involving any of its Securities (as defined below) or security
holders regarding an acquisition, directly or indirectly, of control of the
Company or any of the Company's Securities, businesses or assets, unless the
Company shall have requested in writing that you make such a proposal, and
that neither you nor any of your Affiliates will acquire, or assist, advise
or encourage any other persons in acquiring, directly or indirectly, control
of the Company or any of the Company's Securities, businesses or assets for
a period of six months from the date of this letter agreement unless the
Company shall have consented in advance in writing to such acquisition.
Provided, however, that the restrictions set forth in this paragraph shall no
longer be applicable in the event that any third-party, without the prior
written consent of the Board of Directors of the Company, makes a bona fide
public offer to acquire or acquires directly or indirectly voting stock of
the Company or publicly announces its desire to enter into any merger or
other business combination with the Company. You also agree that the Company
shall be entitled to equitable relief, including injunction, in the event of
any breach of the provisions of this paragraph and that you shall not oppose
the granting of such relief. The term "Securities" shall have the same
meaning herein as in the Securities Act of 1933, as amended. The Company
acknowledges that you have entered into an agreement with Chris Noble to
purchase from him 1,000,000 shares of the Company's Common Stock, and an
agreement with Andrew Shepp to purchase from him 80,000 shares of the
Company's Common Stock, and the Company further acknowledges that the
provisions of this paragraph shall not apply to such agreements.
In addition, you agree that, without the prior written consent of
the Company, you and your Representatives will not disclose to any person
the fact that the Evaluation Material has been made available to you, that
discussions or negotiations are taking place concerning a possible
transaction involving the Company or any of the terms, conditions or other
facts with respect thereto, unless such disclosure is required by law and
then only with as much prior written notice to the Company as is practical
under the circumstances and only to the extent required by law. You further
agree not to contact any employees of the Company regarding a possible
transaction or the Evaluation Materials without the Company's prior written
consent and that all communications regarding a possible transaction with the
Company, requests for additional information and questions regarding
procedures with respect to a possible transaction will be first submitted or
directed to Legg Mason Wood Walker, Incorporated ("Legg Mason") and not to
the Company or its Representatives. The term "person" as used in this letter
agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual or other entity.
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In the event that you or any of your Representatives are requested
or become legally compelled to disclose any of the Evaluation Material or
that discussions between you and the Company now are taking place or will
take place, you shall provide the Company with prompt written notice of any
such request or requirement so that the Company may seek a protective order
or other appropriate remedy. In the event that such protective order or other
remedy is not obtained, you agree to (i) furnish only that portion of the
Evaluation Material for which you are advised by written opinion of counsel,
reasonably satisfactory to the Company, is legally required and (ii) exercise
your best efforts to obtain assurance that the Evaluation Material will be
accorded such confidential treatment.
If you decide that you do not wish to proceed with a transaction
with the Company you will promptly inform the Company of that decision. In
that case, or at any time upon the request of the Company for any reason, you
will and will cause your Representatives to promptly deliver to the Company
all documents and all copies thereof furnished to you or your Representatives
by or on behalf of the Company pursuant hereto. In the event of such a
decision or request, all other Evaluation Material prepared by you or your
Representatives shall be destroyed and no copy thereof shall be retained
and, upon request, you shall certify in writing to the Company that such
action has been taken. Notwithstanding the return or destruction of the
Evaluation Material, you and your Representatives will continue to be bound
by your obligations of confidentiality and other obligations hereunder for a
period of five (5) years from the date of this letter agreement.
The Company retains the right to determine, in its discretion, what
information, properties, personnel and other Evaluation Material the Company
will make available to you. Although the Company has endeavored to include in
the Evaluation Material information which the Company believes to be relevant
for the purpose of your evaluation of a possible transaction with the
Company, you acknowledge that none of the Company, Legg Mason nor any of
their respective Representatives makes any express or implied representation
or warranty as to the accuracy or completeness of the Evaluation Material.
You agree that none of the Company, Legg Mason nor any of their respective
Representatives shall have any liability to you or to any of your
Representatives relating to or resulting from the use of the Evaluation
Material. You also agree that you are not entitled to rely on the accuracy
or completeness of the Evaluation Material and that you will be entitled to
rely solely on such representations and warranties as may be included in any
definitive agreement with respect to a transaction between the Company and
you, subject to such limitations and restrictions as may be contained
therein. You further agree that, if you determine to engage in a transaction
with the Company, your determination will be based solely on the terms of
such definitive agreement and on your own investigation, analysis and
assessment of the Company and the transaction.
In consideration of the Evaluation Material being furnished to you,
you agree that, without the prior written consent of the Company, for a
period of one (1) year from the date hereof, you will not, directly or
indirectly, (i) solicit any person or employee whom you know or have a
reasonable basis to know is an employee of the Company; or (ii) solicit for
employment any person employed by the Company with whom you had contact or
who became known to you during your evaluation of the Company.
You agree that unless and until a definitive agreement regarding a
transaction between the Company and you has been executed, neither the Company
nor you will be under any legal obligation of any kind whatsoever with respect
to such a transaction by virtue of this letter agreement except for the matters
specifically agreed to herein and you hereby waive, in advance, any claims in
connection with any possible transaction with the Company unless and until you
shall have entered into a final definitive agreement. You also acknowledge and
agree that (i) Legg Mason and its Representatives may conduct the process that
may or may not result in a transaction with the Company in such manner as Legg
Mason, in its
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sole discretion, may determine, including, without limitation,
negotiating and entering into a final definitive agreement with any third
party without notice to you, and (ii) Legg Mason reserves the right to
change, in its sole discretion, at any time and without notice to you, the
procedures relating to the Company's and your consideration of the proposed
transaction, including, without limitation, terminating all further
discussions with you and requesting that you return all Evaluation Material
to the Company. You hereby confirm that you are not acting as a broker for
or Representative of any person and are considering a possible
transaction with the Company only for your own account. You further
acknowledge and agree that the Company reserves the right, in its sole
discretion, to reject any and all proposals made by you or any of your
Representatives with regard to a transaction between the Company and you, and
to terminate discussions and negotiations with you at any time.
You acknowledge that you and your Representatives are aware that the
United States securities laws prohibit any person who has material non-public
information about a company from purchasing or selling securities of such
company, or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities.
The Company reserves the right to assign all of its rights, powers and
privileges under this letter agreement, including without limitation, the right
to enforce all of the terms of this letter agreement.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this letter agreement by you or any of your
Representatives and that the Company shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for any such breach.
Such remedies shall not be deemed to be the exclusive remedies for a breach by
you of this letter agreement, but shall be in addition to all other remedies
available at law or equity to the Company. Consequently, the Company shall be
entitled to secure enforcement of this letter agreement in any court of
competent jurisdiction in the United States or any state thereof (and you agree
to waive any requirement for the posting of bond in connection with such
remedy).
The terms and provisions of this letter agreement are solely for the
benefit of the Company, Legg Mason and you and their respective successors,
assigns, heirs and personal representatives, and no other person shall acquire
or have any right by virtue of this letter agreement. This letter agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to such state's principles of conflicts of laws.
This letter agreement may be waived, amended or modified only by an
instrument in writing signed by the party against which such waiver, amendment
or modification is sought to be enforced.
You represent and warrant that this letter agreement has been duly and
validly executed and delivered and is a valid and binding agreement enforceable
in accordance with its terms.
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If any provision of this letter agreement or the application of any
such provision to any person or circumstance is held invalid, illegal or
unenforceable for any reason whatsoever, the remaining provisions of the letter
agreement and the application of such provision to other persons or
circumstances shall not be affected thereby. To the fullest extent possible the
court finding such provision invalid, illegal or unenforceable shall modify and
construe the provisions as to render it valid and enforceable as against all
persons or entities and to give the maximum possible protection to the Company
and its officers, directors, employees, agents, advisors and controlling persons
within the bounds of validity, legality and enforceability.
Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned, whereupon this letter
agreement shall become a binding agreement between you and the Company.
Very truly yours,
LEGG MASON WOOD WALKER, INCORPORATED
on behalf of: TRAVELNOW.COM INC.
By: /s/
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Accepted and agreed as
of the date first written above:
Hotel Reservations Network, Inc.
By: /s/
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