EXHIBIT 5
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.
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.
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:
XxxxxxXxx.xxx, Inc. Shook, Hardy & Bacon LLP
000 Xxxx Xxxxxxx Xxxx, Xxxxx 000 0000 Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx Attn.: Xxxxx X. Xxxxxxx, 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.
IN WITNESS WHEREOF, the Permitted Transferee has duly executed this
Agreement on this 19th day of December, 2000.
PERMITTED TRANSFEREE:
XXXXXXXXX.XXX, INC. HOTEL RESERVATIONS NETWORK, INC.
BY: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxx Xxxxxx General Counsel and Secretary
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Title: CEO Shares of Common Stock Held: 1,080,000
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