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 XxxxxxXxx.xxx 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:
(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
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agreements or arrangements entered into, directly or indirectly, by
Stockholder or his Affiliates as a part of or in connection with the Second
Transaction.
(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.
(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
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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.
(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.
(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:
(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
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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:
(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.
(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
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violation would not interfere with the ability of Stockholder to perform his
obligations hereunder.
(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
Parent 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.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy:
with copies to:
00
Xxxxxx, Xxxxx & Xxxxxxx
Xxxxxxxxxxx Xxxxx, Xxxxx 0000
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
and
Xxxxxx & Xxxxxx L.L.P.
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
(ii) if to Stockholder, to:
Xxxxxx XxXxxxxx
0000 X. Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Shook, Hardy & Bacon, LLP
0000 Xxxxx Xxxx., 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
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
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in the event of any such breach 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 benefit of the party entitled to receive such funds and
12
shall promptly pay such funds to the party entitled to receive such funds in
accordance with this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
President
SUB: WONSUB, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
President
STOCKHOLDER: /s/ Xxxxxx XxXxxxxx
--------------------------------------------
Xxxxxx XxXxxxxx, Trustee u/a the Xxxxxx X.
XxXxxxxx Revocable Trust Dated June 13, 1991
S-1
SCHEDULE A
Part I
------
209,533 Shares
Part II
-------
25,212
A-1
