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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 1)*
Homestore.com, Inc.
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(Name of Issuer)
Common Stock, Par Value $0.001 Per Share
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(Title of Class of Securities)
437852106
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(CUSIP Number)
Eric J. Bock, Esq.
Senior Vice President - Law and Corporate Secretary
Cendant Corporation
9 West 57th Street
New York, NY 10019
Telephone: (212) 431-1836
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
June 5, 2001
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and
is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d- 1(g),
check the following box /_/.
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See Rule
13d-7(b) for other parties to whom copies are sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934, as amended (the "Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the Notes).
CUSIP No. 437852106 13D
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______________________________________________________________________________
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
CENDANT CORPORATION (I.R.S. IDENTIFICATION NO. 06-0918165)
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /_/
(b) /_/
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS
OO
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS /_/
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
______________________________________________________________________________
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 18,131,543
OWNED BY _________________________________________________
EACH 8 SHARED VOTING POWER
REPORTING
PERSON - 0 -
WITH _________________________________________________
9 SOLE DISPOSITIVE POWER
18,131,543
_________________________________________________
10 SHARED DISPOSITIVE POWER
- 0 -
_______________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
18,131,543
_______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
_______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.9%
_______________________________________________________________________________
14 TYPE OF REPORTING PERSON
CO
_______________________________________________________________________________
________________________
* The shares of Homestore.com, Inc. common stock beneficially owned by Cendant
Corporation are held of record by Cendant Membership Services Holdings, Inc., a
wholly-owned subsidiary of Cendant Corporation.
This Amendment No. 1 amends and supplements the Statement on
Schedule 13D filed with the Securities and Exchange Commission on February
26, 2001 (the "Statement"). Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Statement. Except as
disclosed herein there has been no change in the information previously
reported on Schedule 13D.
Item 5. Interest in Securities of the Issuer.
Item 5 of this Schedule 13D is amended as follows:
(a) Cendant beneficially owns 18,131,543 shares of Homestore
Common Stock through its wholly owned subsidiary Cendant Membership
Services Holdings, Inc. ("CMS"). Based on the 107,490,834 shares of
Homestore Common Stock that were issued and outstanding as of April 30,
2001, the 18,131,543 shares beneficially owned by Cendant represented 16.9%
of the issued and outstanding shares of Homestore Common Stock on such
date.
(b) Cendant has the sole power to vote or direct the voting of the
shares of Homestore Common Stock and the sole power to dispose of, or to
direct the disposition of, the shares of Homestore Common Stock.
(c) (i) On June 13, 2001, CMS transferred 58,198 shares of
Homestore Common Stock to R.R. Donnelley & Sons Company
("Donnelley"), the record owner of 159,795 shares of Cendant
common stock designated as Move.com Tracking Stock, par value
$0.01 per share ("Tracking Stock"), in exchange for one-half of
such shares of Tracking Stock held by Donnelley. On June 20, 2001,
CMS transferred an additional 58,197 shares of Homestore Common
Stock to Donnelley in exchange for the remaining 79,897 shares of
Tracking Stock held by Donnelley.
(ii) On June 12 and June 14, 2001, respectively, CMS
transferred in the aggregate 374,000 shares of Homestore Common
Stock to Chatham Holdings, LLC, a Delaware limited liability
company ("Chatham"), in connection with an earlier agreement
between Cendant, Cendant Finance Holding Corporation ("Cendant
Finance"), WMC Finance Co. and Apollo Investment Fund III, L.P.
(the "Chatham Stock Purchase Agreement"), pursuant to which
Cendant repurchased 1,561,000 shares of Tracking Stock and
warrants to acquire 1,561,000 shares of Tracking Stock in exchange
for 2,606,342 shares of Series E Cumulative Senior Preferred Stock
of WMC Finance Co.
(iii) On June 5, 2001, CMS transferred 1,164,048 shares
of Homestore Common Stock to LDIG Move, Inc. ("LDIG Move"), a
wholly owned subsidiary of Liberty Digital, Inc. ("Liberty"), the
record owner of 1,598,030 shares of Tracking Stock, in exchange
for all the shares of Tracking Stock held by LDIG Move.
(iv) On March 30, 2001, in connection with a
recapitalization of Travel Portal, Inc. ("Travel Portal"), in
which Travel Portal ceased to be a wholly owned subsidiary of
Cendant, Cendant transferred 1,500,000 shares of Homestore Common
Stock to Travel Portal (the "Travel Portal Homestore Shares") as
part of a development advance.
(v) On March 30, 2001, Cendant contributed 250,000 shares
of Homestore Common Stock (the "Foundation Homestore Shares") to
the Cendant Charitable Foundation (the "Foundation"), which shares
are referred to as the "Existing Shares" in the Stockholders
Agreement, dated as of October 26, 2000, and effective as of
February 16, 2001, between Cendant and Homestore.
(vi) On March, 28, 2001, CMS transferred 71,028 shares of
Homestore Common Stock to Joseph Preis and John McWeeny, the
record owners of 97,512 shares of Tracking Stock, in exchange for
all the shares of Tracking Stock held by Messrs. Preis and
McWeeny.
(vii) On March, 28, 2001, CMS transferred 4,631 shares of
Homestore Common Stock to Richard & Sonia Henkin (the "Henkins"),
the record owners of 6,358 shares of Tracking Stock, in exchange
for all the shares of Tracking Stock held by the Henkins.
(d) Subject to the terms of Cendant's Amended and Restated
Certificate of Incorporation relating to shares of Tracking Stock, no other
person is known by Cendant to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Homestore Common Stock obtainable by Cendant.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
Item 4 of this Schedule 13G is hereby amended as follows:
Exchange Agreements
CMS and Donnelley entered into an Exchange Agreement,
dated as of June 12, 2001 (the "Donnelley Exchange Agreement").
The Donnelley Exchange Agreement provided for CMS to exchange
58,198 shares of Homestore Common Stock for one-half of the
159,795 shares of Tracking Stock held by Donnelley. Each of CMS
and Donnelley made customary representations and warranties in the
Donnelley Exchange Agreement. CMS and Donnelley also entered into
a second Exchange Agreement, dated as of June 21, 2001 (the
"Second Donnelley Exchange Agreement"), pursuant to which CMS
agreed to exchange 58,197 shares of Homestore Common Stock
(the "Donnelley Homestore Shares") for the remaining 79,897 shares
of Tracking Stock held by Donnelley. Donnelley agreed to cause the
Donnelley Homestore Shares to be sold on or before the close of
trading on the third trading day following the Closing Date (as
such term is defined in the Second Donnelley Agreement) with
Donnelley retaining all of the proceeds of such sale. In the event
that the proceeds of the sale of the Donnelley Homestore Shares
were less than $2.5 million, Cendant agreed to pay to Donnelley,
an amount equal to $2.5 million less the aggregate proceeds of the
sale of the Donnelley Homestore Shares (the "Donnelley Adjustment
Amount"). The Donnelley Adjustment Amount was payable by CMS in
immediately available funds. All of the rights, obligations and
duties of the parties pursuant to the Donnelley Exchange Agreement
and the Second Donnelley Exchange Agreement have been satisfied in
all respects.
The Chatham Stock Purchase Agreement, as amended,
provided for Cendant Finance to repurchase 1,561,000 shares of
Tracking Stock and warrants to acquire 1,561,000 shares of
Tracking Stock held by Chatham in exchange for 2,606,342 shares of
Series E Cumulative Senior Preferred Stock of WMC Finance Co. The
Chatham Stock Purchase Agreement also provided that in the event
of a transaction that results in, among other things, the merger,
consolidation, sale of securities of Move.com or other transaction
or series of transaction, as a result of which either (a) any
person or "group" (as defined in Rules 13d-1 and 13d-5 under the
Exchange Act) becomes the beneficial owner of securities
representing at least 35% of the outstanding shares of common
stock of Move.com, the outstanding equity securities of Move.com
or the outstanding voting securities of Move.com or (b) the
holders of the voting securities of Move.com issued and
outstanding prior to such transaction cease to hold at least 65%
of the issued and outstanding common stock, equity securities or
voting securities of the surviving entity immediately following
such transaction (a "Transaction Event"), then Cendant agreed to
pay to Chatham an amount equal to $10 million (the "Transaction
Amount") in either (i) shares of (x) common stock, par value $.01
per share, of Cendant ("Cendant Common Stock"), or (y) Homestore
Common Stock or (ii) immediately available funds. In the event
Cendant elected to pay the Transaction Amount in marketable
securities of Homestore Common Stock or Cendant Common Stock,
Cendant agreed to cause such securities to be sold on behalf of
Chatham within 90 days of such Transaction Event with Chatham
retaining all of the proceeds of such sale. In the event that the
proceeds of the sale of shares of Cendant Common Stock or
Homestore Common Stock were less than $10 million, Cendant agreed
to pay to Chatham, an amount in immediately available funds equal
to $10 million less the aggregate proceeds of the sale of the
Cendant Common Stock or Homestore Common Stock. All of the rights,
duties and obligations of the parties pursuant to the Chatham
Stock Purchase Agreement have been satisfied in all respects.
Cendant, CMS, Liberty and LDIG Move entered into a Stock
Purchase Agreement, dated as of June 5, 2001 (the "Liberty Stock
Purchase Agreement"). The Liberty Stock Purchase Agreement
provided for Cendant, and cause CMS, to exchange 1,164,048 shares
of Homestore Common Stock (the "Liberty Homestore Shares"), for
1,598,030 shares of Tracking Stock held by LDIG Move. LDIG Move
agreed to cause the Liberty Homestore Shares to be sold on or
before the close of trading on the fifth trading day following the
Closing Date (as such term is defined in the Liberty Stock
Purchase Agreement) with LDIG Move retaining all of the proceeds
of such sale. In the event that the proceeds of the sale of the
Liberty Homestore Shares were less than $50 million, Cendant
agreed to pay to LDIG Move, an amount equal to $50 million less
the aggregate proceeds of the sale of the Liberty Homestore Shares
(the "Liberty Adjustment Amount"). The Liberty Adjustment Amount
was payable at the option of Cendant in (i) cash or (ii) a number
of shares of common stock, par value $.01 per share, of Cendant
("Cendant Common Stock") equal to (x) the Liberty Adjustment
Amount divided by the (y) the average of the per share closing
prices of Cendant Common Stock on the New York Stock Exchange for
each trading day during the 10 consecutive trading days
immediately preceding the date on which all of the Liberty
Homestore Shares were sold. Each of Cendant, CMS, Liberty and LDIG
Move made customary representations and warranties in the Liberty
Stock Purchase Agreement. All of the rights, duties and
obligations of the parties pursuant to the Liberty Stock Purchase
Agreement have been satisfied in all respects.
CMS and each of Joseph A. Preis and John McWeeny, entered
into an Exchange Agreement, dated as of March 28, 2001 (the
"Preis/McWeeny Exchange Agreement"). The Preis/McWeeny Exchange
Agreement provided for CMS to exchange 71,028 shares of Homestore
Common Stock for 97,512 shares of Tracking Stock held by Messrs.
Preis and McWeeny. Each of CMS and Messrs. Preis and McWeeny made
customary representations and warranties in the Preis/McWeeny
Exchange Agreement. The Homestore Common Stock received by Messrs.
Preis and McWeeny was characterized as "restricted securities"
under the federal securities laws until Homestore filed a
registration statement on Form S-3 relating to such shares (the
"Registration Statement") and such Registration Statement is
declared effective by the SEC (which declaration occurred on June
4, 2001). All of the rights, duties and obligations of the parties
pursuant to the Preis/McWeeny Exchange Agreement have been
satisfied in all respects.
CMS, and the Henkins, entered into an Exchange Agreement,
dated as of March 28, 2001 (the "Henkin Exchange Agreement"). The
Henkin Exchange Agreement provided for CMS to exchange 4,631
shares of Homestore Common Stock for 6,358 shares of Tracking
Stock held by the Henkins. Each of CMS and the Henkins made
customary representations and warranties in the Henkin Exchange
Agreement. The Homestore Common Stock received by the Henkins was
characterized as "restricted securities" under the federal
securities laws until the Registration Statement is declared
effective by the SEC (which declaration occurred on June 4, 2001).
All of the rights, duties and obligations of the parties pursuant
to the Henkin Exchange Agreement have been satisfied in all
respects.
Development Agreement
Cendant Internet Group, Inc, a wholly owned subsidiary of
Cendant ("CIG"), and Homestore entered into a Development
Agreement (the "Development Agreement"), dated as of March 30,
2001, which contains the following provisions:
(a) The Call Right - As of March 30, 2001, CIG will have the right
to purchase (the "Call Right") all or part of the Homestore Common
Stock owned by Travel Portal. For each of the Travel Portal
Homestore Shares that CIG purchases pursuant to the Call Right,
CIG will be required to pay to Travel Portal the closing trading
price per share of Homestore Common Stock on the day immediately
prior to the date of such purchase.
(b) The Put Right - At any time after September 1, 2001, Travel
Portal shall have the right, but not the obligation, to require
CIG to purchase all of the Travel Portal Homestore Shares owned by
Travel Portal at such time (the "Put Right"). For each of the
Travel Portal Homestore Shares that CIG purchases pursuant to the
Put Right, CIG will be required to pay to Travel Portal the
closing trading price per share of Homestore Common Stock on the
day immediately prior to the date of such purchase.
(c) Stockholders Agreement - Travel Portal has agreed to be bound
at all times to the provisions of the Stockholders Agreement.
Letter Agreement
Cendant and Homestore entered into a letter agreement
(the "Letter Agreement"), dated March 30, 2001, waiving certain
provisions of the Stockholders Agreement in connection with the
transfer of the Travel Portal Homestore Shares and the Foundation
Homestore Shares, which Letter Agreement contains the following
provisions:
(a) Travel Portal Homestore Shares - In connection with the
transfer of the Travel Portal Homestore Shares, Cendant has agreed
as a condition to such transfer to cause Travel Portal to be bound
by the provisions of the Stockholders Agreement as they pertain to
such shares.
(b) Foundation Homestore Shares - In connection with the
transfer of the Foundation Homestore Shares, Cendant has agreed as
a condition to such transfer to cause the Foundation to be bound
by the provisions of the Stockholders Agreement as they pertain to
such shares.
(c) Stockholders Agreement - The transfer of the Travel Portal
Homestore Shares and Foundation Homestore Shares shall not result
in an increase or decrease of the aggregate number of shares of
Homestore Common Stock subject to the transfer and volume
limitations set forth in Section 1.2 of the Stockholders
Agreement.
References to, and descriptions of, the Donnelley
Exchange Agreement, the Second Donnelley Exchange Agreement, the
Chatham Stock Purchase Agreement, the Liberty Stock Purchase
Agreement, the Preis/McWeeny Exchange Agreement, the Henkin
Exchange Agreement, the Development Agreement and the Letter
Agreement as set forth above in this Item 6 are qualified in their
entirety by reference to the copy of each of the Donnelley
Exchange Agreement, the Second Donnelley Exchange Agreement, the
Chatham Stock Purchase Agreement, the Preis/McWeeny Exchange
Agreement, the Henkin Exchange Agreement, the Liberty Stock
Purchase Agreement, the Development Agreement and the Letter
Agreement attached as Exhibit 1 through Exhibit 8 to this
Amendment No. 1 to Schedule 13D, and are incorporated in this Item
6 in their entirety where such references and descriptions appear.
Item 7. Material to be Filed as Exhibits.
Exhibit Description
1. Exchange Agreement, dated as of June 12, 2001, by and
between Cendant Membership Services Holdings, Inc. and
R.R. Donnelley & Sons Company.
2. Exchange Agreement, dated as of June 21, 2001, by and
between Cendant Membership Services Holdings, Inc. and
R.R. Donnelley & Sons Company.
3. Stock Purchase Agreement, dated as of November 24, 2000,
as amended, by and among Chatham Street Holdings, LLC,
Cendant Corporation, Cendant Finance Holding Corporation,
WMC Finance Co. and Apollo Investment Fund III, L.P.
4. Stock Purchase Agreement, dated as of June 5, 2001, by
and among Cendant Corporation, Cendant Membership
Services Holdings, Inc., LDIG Move, Inc. and Liberty
Digital.
5. Exchange Agreement, dated as of March 28, 2001, by and
among Cendant Membership Services Holdings, Inc., Joseph
A. Preis and John P. McWeeny.
6. Exchange Agreement, dated as of March 28, 2001, by and
among Cendant Membership Services Holdings, Inc, and each
of Richard and Sonia Henkin.
7. Development Agreement, dated as of March 30, 2001, by and
between Cendant Corporation and Homestore.com, Inc.
8. Letter Agreement, dated March 30, 2001, by and between
Cendant Corporation and Homestore.com, Inc.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: July 12, 2001
CENDANT CORPORATION
By: /s/ Eric J. Bock
-------------------------------------
Name: Eric J. Bock, Esq.
Title: Senior Vice President - Law
and Corporate Secretary
Exhibit 1
EXCHANGE AGREEMENT
AGREEMENT, dated as of June 12, 2001, by and among Cendant
Membership Services Holdings, Inc., a Delaware corporation ("Buyer"), and
R.R. Donnelley and Sons Company, a Delaware corporation ("Seller").
WHEREAS, Seller is the owner of 159,795 shares (the "Tracking
Stock Shares") of Cendant Corporation common stock designated as Move.com
Tracking Stock, par value $0.01 per share ("Move.com Stock");
WHEREAS, the parties desire to exchange one-half of the Tracking
Stock Shares held by Seller for 58,198 shares of common stock, par value
$.001 per share ("Homestore Common Stock"), of Homestore.com, Inc.
("Homestore"), on the terms and conditions provided for herein; and
WHEREAS, pursuant to a Registration Rights Agreement, dated as of
October 26, 2000 and effective as of February 16, 2000, by and between
Homestore and Parent (the "Registration Rights Agreement"), Homestore filed
a registration statement on Form S-3 on May 22, 2001 for a public offering
of certain shares of Homestore Common Stock, including the Homestore Shares
(as defined below) and such registration statement was declared effective
by the Securities and Exchange Commission on June 4, 2001.
NOW, THEREFORE, in consideration of the provisions and the mutual
consents contained herein, the parties hereto agree as follows:
1. SALE OF TRANSFERRED SECURITIES.
1.1 EXCHANGE OF SHARES. On the terms and subject to the
conditions contained herein, at the Closing, Buyer agrees to exchange with
Seller and Seller agrees to exchange with Buyer, 58,198 shares of Homestore
Common Stock (the "Homestore Shares"), in exchange for 79,898 of the
Tracking Stock Shares.
1.2 DELIVERY OF SHARES. (a) At the Closing Seller shall sell,
assign, transfer and convey to Buyer certificates representing the Tracking
Stock Shares duly endorsed in blank or accompanied by stock powers duly
executed in blank, with all necessary stock transfer stamps affixed.
(b) At the Closing Buyer shall sell, assign, transfer and convey
to Seller a certificate representing the Homestore Shares duly endorsed in
blank or accompanied by stock powers duly executed in blank, with all
necessary stock transfer stamps affixed.
2. THE CLOSING. Upon the terms and subject to the conditions of
this Agreement, it is intended that the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place on the date
of execution of this Agreement at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, Four Times Square, New York, New York 10036, at 10:00
a.m. (local time).
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents
and warrants to Buyer as follows:
3.1 ORGANIZATION. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to carry on
its business substantially as it is now being conducted.
3.2 CORPORATE AUTHORIZATION. Seller has all requisite power and
authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby, and the execution, delivery and
performance by Seller of this Agreement have been duly authorized by all
requisite corporate action by Seller.
3.3 BINDING AGREEMENT. This Agreement has been duly and validly
executed and delivered on behalf of Seller and, assuming due authorization,
execution and delivery by Buyer, constitutes the legal and binding
obligation of Seller enforceable against Seller in accordance with its
terms subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, to general equity principles
(whether considered in a proceeding in equity or at law).
3.4 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as described
herein, no consent or approval of, other action by, or any notice to, any
governmental body or agency, domestic or foreign, or any third party is
required in connection with the execution and delivery by the Seller of
this Agreement or the consummation of the transaction contemplated hereby.
3.5 VALID TITLE. The Tracking Stock Shares are owned by Seller
free and clear of any liens, claims, security interests, encumbrances,
restrictions or transfer (other than restrictions imposed under federal or
state securities laws) or voting (collectively, "Liens"), other than Liens
imposed as a result of actions by Buyer or its affiliates. Upon delivery by
Seller, Buyer will receive good title to the Tracking Stock Shares.
3.6 FEES AND COMMISSIONS. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of Seller is or
will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated
herein. Seller agrees to indemnify and hold harmless Buyer from liability
for any compensation to any intermediary retained or otherwise authorized
to act by, or on behalf of, Seller and the fees and expenses of defending
against such liability or alleged liability.
3.7 NO ADDITIONAL REPRESENTATIONS. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY REPRESENTATIONS AND
WARRANTIES MADE BY SELLER. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL
WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
4.1 ORGANIZATION. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to carry on
its business substantially as it is now being conducted.
4.2 CORPORATE AUTHORIZATION. Buyer has all requisite power and
authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby, and the execution, delivery and
performance by Buyer of this Agreement have been duly authorized by all
requisite corporate action by Buyer.
4.3 BINDING AGREEMENT. Buyer has all requisite corporate power
and authority to enter into, execute and deliver this Agreement, to carry
out its obligations hereunder and to consummate the transaction
contemplated hereby. This Agreement has been duly and validly authorized,
executed and delivered by Buyer and, assuming due authorization, execution
and delivery by Seller, constitutes the legal and binding obligation of
Buyer enforceable against Buyer in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, to general equity principles (whether
considered in a proceeding in equity or at law).
4.4 FEES AND COMMISSIONS. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of Buyer is or
will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated
herein.
4.5 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as described
herein, no consent or approval of, other action by, or any notice to, any
governmental body or agency, domestic or foreign, or any third party is
required in connection with the execution and delivery by the Buyer of this
Agreement or the consummation of the transaction contemplated hereby.
4.6 VALID TITLE. Upon delivery to Buyer, Seller will pass valid
title to the Homestore Shares and there are no Liens in respect of the
Homestore Shares, other than Liens imposed as a result of actions of Seller
or its affiliates.
4.7 NO ADDITIONAL REPRESENTATIONS. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 4 ARE THE ONLY REPRESENTATIONS AND
WARRANTIES MADE BY BUYER. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL
WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL BUYER BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
5. MISCELLANEOUS.
5.1 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior agreements, arrangements and
undertakings, whether written or oral, relating to matters provided for
herein. There are no provisions, undertakings, representations or
warranties relative to the subject matter of this Agreement not expressly
set forth herein.
5.2 EXPENSES. Except as otherwise specifically provided in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transaction contemplated hereby
shall be paid by the party incurring such costs and expenses, whether or
not the Closing shall have occurred.
5.3 NOTICES. Any notice, demand, claim, notice of claim, request
or communication required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally by facsimile transmission or sent by first
class or certified mail, postage prepaid to the following addresses,
If to the Seller:
R.R. Donnelley & Sons Company
77 West Wacker Drive
Chicago, Il 60601-1696
Attention: General Counsel
Facsimile: (312) 326-7620
If to Buyer:
c/o Cendant Corporation
9 West 57th Street
New York, New York 10019
Attention: Eric J. Bock, Esq.
Facsimile: (212) 413-1922
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10038
Attention: David Fox, Esq.
Facsimile: (212) 735-2000
or to such other address as any party may request by notifying in writing
all of the other parties to this Agreement in accordance with this Section
5.3.
Any such notice shall be deemed to have been received on the date
of personal delivery, the date set forth on the postal service return
receipt, the date of delivery shown on the records of the overnight courier
or the date shown on the facsimile confirmation, as applicable.
5.4 BENEFIT AND ASSIGNMENT. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. There shall be no assignment of any
interest under this Agreement by any party except that Buyer may assign its
rights hereunder to any wholly owned subsidiary of Buyer; provided,
however, that no such assignment shall relieve the assignor of its
obligations under this Agreement. Nothing herein, express or implied, is
intended to or shall confer upon any other person any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
5.5 WAIVER. Any waiver of any provision of this Agreement shall
be valid only if set forth in an instrument in writing signed by the party
to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of
the same term or condition, or a waiver of any other term or condition, of
this Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any such rights.
5.6 AMENDMENT. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, Seller and
Buyer.
5.7 RELEASE OF CLAIMS. Seller hereby fully and unconditionally
releases from any and all claims, actions, causes of actions, lawsuits,
damages, liabilities, costs, losses, expenses, assessments, sums of money,
promises and demands of any nature whatsoever of Seller against Buyer and
each of its respective officers, directors, employees or agents which are
related to or arise out of (a) any act taken or omitted to be taken in
connection with or in anticipation of the transactions contemplated hereby
or (b) any act taken or omitted to be taken by Buyer in connection with the
transactions contemplated hereby.
5.8 SEVERABILITY. Any provision of this Agreement that is held by
a court of competent jurisdiction to violate applicable law shall be
limited or nullified only to the extent necessary to bring the Agreement
within the requirements of such law.
5.9 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and shall in no way be construed
to define, limit, describe, explain, modify, amplify, or add to the
interpretation, construction or meaning of any provision of, or scope or
intent of, this Agreement nor in any way affect this Agreement.
5.10 COUNTERPARTS. This Agreement may be signed in counterparts
and all signed copies of this Agreement will together constitute one
original of this Agreement. This Agreement shall become effective when each
party hereto shall have received counterparts thereof signed by all the
other parties hereto.
5.11 GOVERNING LAW. This Agreement shall be governed by, enforced
under and construed in accordance with, the laws of the State of New York,
without giving effect to any choice of law provision or rule thereof. The
parties submit to the exclusive jurisdiction of the courts of the State of
New York and of the United States of America in each case located in the
County of New York for any litigation arising out of or relating to the
Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
CENDANT MEMBERSHIP SERVICES
HOLDINGS, INC.
/s/ Eric J. Bock
---------------------------------
Name: Eric J. Bock
Title: Senior Vice President
R.R. DONNELLEY AND SONS COMPANY
/s/ Michael Winkel
----------------------------------
Name: Michael Winkel
Title: EVP Strategy & Planning
Exhibit 2
EXCHANGE AGREEMENT
AGREEMENT (this "Agreement"), dated as of June 21, 2001, by and
among Cendant Membership Services Holdings, Inc., a Delaware corporation
("Buyer") and R.R. Donnelley and Sons Company, a Delaware corporation
("Seller").
WHEREAS, Seller and Buyer are parties to a Stock Purchase
Agreement, dated as of May 12, 2000 (the "Stock Purchase Agreement"),
pursuant to which 159,795 shares (the "Tracking Stock Shares") of Cendant
Corporation common stock designated as Move.com Tracking Stock, par value
$0.01 per share, were issued and sold to Seller;
WHEREAS, on June 14, 2001, the parties entered into an exchange
agreement, pursuant to which Seller transferred to Buyer 79,898 shares of
the Tracking Stock Shares in exchange for 58,197 shares of common stock,
par value $.001 per share ("Homestore Common Stock"), of Homestore.com,
Inc. ("Homestore") in partial satisfaction of the parties obligations under
Section 4.8 of the Stock Purchase Agreement;
WHEREAS, pursuant to Section 4.8 of the Stock Purchase Agreement,
Seller has the right to require Buyer to purchase the remaining 79,897
shares of the Tracking Stock Shares held by Buyer (the "Remaining Tracking
Stock Shares") for $2.5 million;
WHEREAS, the parties desire to exchange the Remaining Tracking
Stock Shares for 58,197 shares (the "Homestore Shares") of common stock,
par value $.001 per share ("Homestore Common Stock"), of Homestore.com,
Inc. ("Homestore"), on the terms and conditions provided for herein, in
complete satisfaction of Buyer's remaining obligations pursuant to the
terms of the Stock Purchase Agreement; and
WHEREAS, pursuant to a Registration Rights Agreement, dated as of
October 26, 2000 and effective as of February 16, 2000, by and between
Homestore and Cendant Corporation, Homestore filed a registration statement
on Form S-3 on May 22, 2001 for a public offering of certain shares of
Homestore Common Stock, including the Homestore Shares and such
registration statement was declared effective by the Securities and
Exchange Commission on June 4, 2001.
NOW, THEREFORE, in consideration of the provisions and the mutual
consents contained herein, the parties hereto agree as follows:
1. SALE OF TRANSFERRED SECURITIES. (a) At the Closing, (i) Seller
shall sell, assign, transfer and convey to Buyer, without representation or
warranty (other than as expressly provided herein), all of its right, title
and interest in and to the Remaining Tracking Stock Shares, free and clear
of all Liens (as defined herein), other than Liens imposed as a result of
actions by Buyer or its affiliates (as the term "affiliates" is defined in
Rule 12b-2 under the Exchange Act) and (ii) Buyer shall sell, assign,
transfer and convey to Seller, without representation or warranty (other
than as expressly provided herein), all of its right, title and interest in
and to 58,197 Homestore Shares, free and clear of all Liens other than
Liens imposed as a result of actions by Seller or its affiliates. The
consideration to Seller for the sale of the Remaining Tracking Stock Shares
shall include Buyer's obligation to pay to Seller the Adjustment Amount (as
defined herein) under the circumstances set forth in Section 1(c). The
parties acknowledge and agree that the exchange of (x) the Remaining
Tracking Stock Shares for (y) the Homestore Shares, together with Seller's
payment of the Adjustment Amount, if required, shall constitute
satisfaction of the parties' respective obligations under the Stock
Purchase Agreement.
(b) Prior to the Closing, Seller shall open a brokerage account
(the "Seller Account") with Credit Suisse First Boston (the "Bank"). At the
Closing, Buyer shall transfer the Homestore Shares to Seller and such
shares shall be deposited in the Seller Account. Seller agrees to instruct
the Bank to sell all Homestore Shares delivered to the Seller Account on or
before the close of trading on the third (3rd) trading day following (but
not including) the Closing Date (which third (3rd) trading day will be
extended by the number of days, if any, that sales of Homestore Common
Stock are suspended from trading on the Nasdaq Stock Market) in accordance
with written instructions mutually agreed upon by the parties. Seller shall
instruct Bank to deliver on the Determination Date to Seller and Buyer a
written report setting forth the Proceeds of the sale of the Homestore
Shares. As used in this Agreement, the "Proceeds" shall be equal to the
gross cash proceeds received by Seller from the sale of the Homestore
Shares, without deduction of any sales or brokers' commissions, fees and
discounts. The "Determination Date" shall be the date on which all
Homestore Shares delivered to Seller as provided herein have been sold or
otherwise disposed of by Seller. For purposes of this Agreement, all of the
Homestore Shares shall be deemed to have been sold or otherwise disposed of
upon the broker's execution of the trade relating to the last Homestore
Share held in the Seller Account, and not the date of settlement of such
trade. Seller shall cause the Bank to provide notice to Seller and Buyer as
to the occurrence of the Determination Date. For purposes of this
Agreement, the term "business day" shall mean any day other than Saturday,
Sunday, a holiday, a bank holiday or a day in which the New York Stock
Exchange is closed for business, and shall consist of the time period from
12:00 a.m. through 12:00 midnight Eastern time and the term "close of
business" shall mean the close of business in New York City.
(c) In the event the Proceeds from the sale of the Homestore
Shares are less than $2.5 million, Buyer shall, subject to the terms of
this Agreement, pay and deliver to Seller the Adjustment Amount in
accordance with the terms of this Agreement. The "Adjustment Amount" will
be equal to $2.5 million less the aggregate Proceeds of the sale of all of
the Homestore Shares.
(d) In the event Buyer is required to pay the Adjustment Amount,
Buyer shall pay to Seller, within two (2) business days of the
Determination Date, such amount by wire transfer of immediately available
funds to an account designated by Seller.
2. THE CLOSING. Upon the terms and subject to the conditions of
this Agreement, it is intended that the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place on the date
of execution of this Agreement (the "Closing Date") at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New
York 10036, at 10:00 a.m. (local time).
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents
and warrants to Buyer as follows:
3.1 ORGANIZATION. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to carry on
its business substantially as it is now being conducted.
3.2 CORPORATE AUTHORIZATION. Seller has all requisite power and
authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby, and the execution, delivery and
performance by Seller of this Agreement have been duly authorized by all
requisite corporate action by Seller.
3.3 BINDING AGREEMENT. This Agreement has been duly and validly
executed and delivered on behalf of Seller and, assuming due authorization,
execution and delivery by Buyer, constitutes the legal and binding
obligation of Seller enforceable against Seller in accordance with its
terms subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, to general equity principles
(whether considered in a proceeding in equity or at law).
3.4 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as
described herein, no consent or approval of, other action by, or any notice
to, any governmental body or agency, domestic or foreign, or any third
party is required in connection with the execution and delivery by the
Seller of this Agreement or the consummation of the transaction
contemplated hereby.
3.5 VALID TITLE. The Remaining Tracking Stock Shares are owned by
Seller free and clear of any liens, claims, security interests,
encumbrances, restrictions or transfer (other than restrictions imposed
under federal or state securities laws) or voting (collectively, "Liens"),
other than Liens imposed as a result of actions by Buyer or its affiliates.
Upon delivery by Seller, Buyer will receive good title to the Remaining
Tracking Stock Shares.
3.6 FEES AND COMMISSIONS. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of Seller is or
will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated
herein. Seller agrees to indemnify and hold harmless Buyer from liability
for any compensation to any intermediary retained or otherwise authorized
to act by, or on behalf of, Seller and the fees and expenses of defending
against such liability or alleged liability.
3.7 NO ADDITIONAL REPRESENTATIONS. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY REPRESENTATIONS AND
WARRANTIES MADE BY SELLER. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL
WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
4.1 ORGANIZATION. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to carry on
its business substantially as it is now being conducted.
4.2 CORPORATE AUTHORIZATION. Buyer has all requisite power and
authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby, and the execution, delivery and
performance by Buyer of this Agreement have been duly authorized by all
requisite corporate action by Buyer.
4.3 BINDING AGREEMENT. Buyer has all requisite corporate power
and authority to enter into, execute and deliver this Agreement, to carry
out its obligations hereunder and to consummate the transaction
contemplated hereby. This Agreement has been duly and validly authorized,
executed and delivered by Buyer and, assuming due authorization, execution
and delivery by Seller, constitutes the legal and binding obligation of
Buyer enforceable against Buyer in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, to general equity principles (whether
considered in a proceeding in equity or at law).
4.4 FEES AND COMMISSIONS. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of Buyer is or
will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated
herein.
4.5 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as described
herein, no consent or approval of, other action by, or any notice to, any
governmental body or agency, domestic or foreign, or any third party is
required in connection with the execution and delivery by the Buyer of this
Agreement or the consummation of the transaction contemplated hereby.
4.6 VALID TITLE. Upon delivery to Buyer, Seller will pass valid
title to the Homestore Shares and there are no Liens in respect of the
Homestore Shares, other than Liens imposed as a result of actions of Seller
or its affiliates.
4.7 NO ADDITIONAL REPRESENTATIONS. THE REPRESENTATIONS
AND WARRANTIES SET FORTH IN THIS SECTION 4 ARE THE ONLY REPRESENTATIONS AND
WARRANTIES MADE BY BUYER. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL
WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL BUYER BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
5. MISCELLANEOUS.
5.1 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior agreements, arrangements and
undertakings, whether written or oral, relating to matters provided for
herein. There are no provisions, undertakings, representations or
warranties relative to the subject matter of this Agreement not expressly
set forth herein.
5.2 EXPENSES. Except as otherwise specifically provided in this
Agreement, all costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and accountants,
incurred in connection with this Agreement and the transaction contemplated
hereby shall be paid by the party incurring such costs and expenses,
whether or not the Closing shall have occurred.
5.3 NOTICES. Any notice, demand, claim, notice of claim, request
or communication required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally by facsimile transmission or sent by first
class or certified mail, postage prepaid to the following addresses,
If to the Seller:
R.R. Donnelley & Sons Company
77 West Wacker Drive
Chicago, Il 60601-1696
Attention: General Counsel
Facsimile: (312) 326-7620
If to Buyer:
c/o Cendant Corporation
9 West 57th Street
New York, New York 10019
Attention: Eric J. Bock, Esq.
Facsimile: (212) 413-1922
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10038
Attention: David Fox, Esq.
Facsimile: (212) 735-2000
or to such other address as any party may request by notifying in writing
all of the other parties to this Agreement in accordance with this Section
5.3.
Any such notice shall be deemed to have been received on the date
of personal delivery, the date set forth on the postal service return
receipt, the date of delivery shown on the records of the overnight courier
or the date shown on the facsimile confirmation, as applicable.
5.4 benefit and assignment. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. There shall be no assignment of any
interest under this Agreement by any party except that Buyer may assign its
rights hereunder to any wholly owned subsidiary of Buyer; provided,
however, that no such assignment shall relieve the assignor of its
obligations under this Agreement. Nothing herein, express or implied, is
intended to or shall confer upon any other person any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
5.5 waiver. Any waiver of any provision of this Agreement shall
be valid only if set forth in an instrument in writing signed by the party
to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of
the same term or condition, or a waiver of any other term or condition, of
this Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any such rights.
5.6 AMENDMENT. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, Seller and
Buyer.
5.7 RELEASE OF CLAIMS. Seller hereby fully and unconditionally
releases from any and all claims, actions, causes of actions, lawsuits,
damages, liabilities, costs, losses, expenses, assessments, sums of money,
promises and demands of any nature whatsoever of Seller against Buyer and
each of its respective officers, directors, employees or agents which are
related to or arise out of (a) any act taken or omitted to be taken in
connection with or in anticipation of the transactions contemplated hereby
or (b) any act taken or omitted to be taken by Buyer in connection with the
transactions contemplated hereby.
5.8 SEVERABILITY. Any provision of this Agreement that is held by
a court of competent jurisdiction to violate applicable law shall be
limited or nullified only to the extent necessary to bring the Agreement
within the requirements of such law.
5.9 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and shall in no way be construed
to define, limit, describe, explain, modify, amplify, or add to the
interpretation, construction or meaning of any provision of, or scope or
intent of, this Agreement nor in any way affect this Agreement.
5.10 COUNTERPARTS. This Agreement may be signed in counterparts
and all signed copies of this Agreement will together constitute one
original of this Agreement. This Agreement shall become effective when each
party hereto shall have received counterparts thereof signed by all the
other parties hereto.
5.11 GOVERNING LAW. This Agreement shall be governed by, enforced
under and construed in accordance with, the laws of the State of New York,
without giving effect to any choice of law provision or rule thereof. The
parties submit to the exclusive jurisdiction of the courts of the State of
New York and of the United States of America in each case located in the
County of New York for any litigation arising out of or relating to the
Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
CENDANT MEMBERSHIP SERVICES
HOLDINGS, INC.
/s/ Eric J. Bock
---------------------------------
Name: Eric J. Bock
Title: Senior Vice President
R.R. DONNELLEY AND SONS COMPANY
/s/ Michael Winkel
---------------------------------
Name: Michael Winkel
Title: EVP Strategy & Planning
Exhibit 3
STOCK PURCHASE AGREEMENT (this
"Agreement"), dated as of November 24, 2000, by
and among CHATHAM STREET HOLDINGS, LLC, a Delaware
limited liability company (the "Seller"), CENDANT
CORPORATION, a Delaware corporation ("Cendant"),
CENDANT FINANCE HOLDING CORPORATION, a Delaware
corporation and an affiliate of Cendant ("Cendant
Finance" and, collectively with Cendant the
"Buyer"), with respect to Section 6 hereof only,
WMC FINANCE CO., a Delaware corporation ("WMC"),
and with respect to Section 8 hereof only, APOLLO
INVESTMENT FUND III, L.P. "Apollo").
WHEREAS, the parties hereto deem it desirable and in their
respective best interests to enter into this Agreement for Seller to sell
to Buyer (a) 2,626,712 shares (the "WMC Common Shares") of Class A Common
Stock (the "WMC Common Stock") of WMC, (b) 1,561,000 shares (the "Move.com
Common Shares") of the class of Cendant's common stock designated as
Move.com Common Stock (the "Move.com Common Stock"), (c) a warrant to
purchase 780,500 shares of Move.com Common Stock for a purchase price of
$64.08 per share and (d) a warrant to purchase 780,500 shares of Move.com
Common Stock for a purchase price of $128.16 per share (the warrants
referred to in (c) and (d), the "Warrants" and, collectively with the WMC
Common Stock and the Move.com Common Stock, the "Transferred Securities")
and for Buyer to sell to Seller 2,606,342 shares (the "WMC Preferred
Shares") of Series E Cumulative Senior Preferred Stock of WMC (the "WMC
Preferred Stock"); and
WHEREAS, the parties hereto deem it desirable and in their
respective best interests for Seller, in connection with the sale of the
Transferred Securities, to assign to Buyer all of its right, title and
interest as a holder of the Move.com Common Shares and the Warrants
pursuant to the Registration Rights Agreement, dated as of March 29, 2000
(the "Move.com Registration Rights Agreement").
NOW THEREFORE, the parties hereto hereby agree as follows:
1. SALES OF TRANSFERRED SECURITIES.
(a) In consideration of the payment as described in Section 1(b)
hereof, the delivery by Cendant Finance of the WMC Preferred Shares held by
Cendant Finance as described in Section 1(c) hereof and the agreement by
Cendant to make payments, if any, following the consummation of a Homestore
Transaction as described in Section 1(d) hereof, the Seller agrees, at the
Closing, to sell, assign, transfer and convey to Buyer without
representation or warranty (other than as expressly provided herein), all of
its right, title and interest in and to (i) the Transferred Securities and
as a holder of the Move.com Common Shares and the Warrants under the
Move.com Registration Rights Agreement, free and clear of all liens, claims,
charges and encumbrances whatsoever, and with no restrictions on the voting
rights of the Transferred Securities and (ii) the 2,626,712 WMC Common
Shares, free and clear of all liens claims, charges and encumbrances
whatsoever, and with no a restrictions on the voting rights of the WMC
Common Shares.
(b) Cendant hereby agrees, at the Closing, to pay to Seller $75.1
million (the "Initial Payment Amount") payable in consideration for the
conveyance of the securities set forth in Sections 1(a)(i) and (ii). The
Initial Payment Amount shall be paid in cash at the Closing by wire transfer
of immediately available funds to accounts designated by Seller.
(c) Cendant Finance hereby agrees, at the Closing, to sell,
assign, transfer and convey to Seller without representation or warranty
(other than as expressly provided herein), in consideration of the
conveyance of the securities set forth in Sections 1(a)(i) and (ii), all of
its right, title and interest in the 2,606,342 WMC Preferred Shares owned of
record and beneficially by Cendant Finance, free and clear of all liens,
claims, charges and encumbrances whatsoever, and with no restrictions on the
voting rights thereof. At the Closing, Cendant Finance shall deliver to
Seller certificates representing all of such WMC Preferred Shares, duly
endorsed for transfer to Seller or its designee. Cendant Finance hereby
waives compliance with any of the procedures relating to a redemption of the
WMC Preferred Shares contained in the Certificate of Designations relating
to the WMC Preferred Shares filed with the Secretary of State of Delaware on
March 9, 2000.
(d) If a Homestore Transaction shall be consummated at any time on
or prior to the second anniversary of the date hereof, Cendant shall pay to
Seller an additional amount equal to $15.0 million (the "Homestore
Transaction Amount"), payable by Cendant, in consideration for the
conveyance of the securities set forth in Sections 1(a)(i) and (ii), within
ninety (90) days after the consummation of such Homestore Transaction (the
date on which such payment is made, the "Homestore Payment Date"); provided,
however, that at Cendant's option, up to 100% of such Homestore Transaction
Amount shall be payable by delivering to Seller a number of Marketable
Securities (as defined below), the Proceeds (as defined in Section 5 below)
of which shall be equal to the Homestore Transaction Amount minus the actual
cash payment made by Cendant on the Homestore Payment Date. The cash portion
of the Homestore Transaction Amount shall be payable in immediately
available funds on the Homestore Payment Date. The Marketable Securities (if
any) delivered by Cendant pursuant to this Section shall be delivered
simultaneously with the sale of such Marketable Securities pursuant to
Section 5 hereof. For purposes of this Agreement, securities shall only be
"Marketable Securities" if (i) they are fully-paid and non- assessable
shares, free and clear of all liens, charges or encumbrances whatsoever, and
with no restrictions on the voting rights thereof of (a) the class of
Cendant's common stock designated as Cendant Common Stock ("Cendant Common
Stock" and/or (b) common stock of Homestore.com, Inc. ("Homestore Common
Stock"), (ii) the offer and sale of such securities to Seller on the
Homestore Payment Date has been registered under the Securities Act of 1933,
as amended (the "Securities Act"), pursuant to an effective registration
statement, (iii) such securities shall be capable of being resold publicly
by Seller immediately after the delivery thereof pursuant to this Agreement
in compliance with Federal and state securities laws and (iv) securities of
the same class thereof are listed for trading, and trading thereon is not
suspended, on the New York Stock Exchange, in the case of Cendant Common
Stock, or the Nasdaq National Market, in the case of Homestore Common Stock
(as the case may be), on the date of sale thereof by Cendant as set forth in
Section 5 below. For purposes hereof, a "Homestore Transaction" shall mean
any transaction between Move.com, Inc., a Delaware corporation ("Move.com"),
and/or Cendant, on the one hand, and Homestore.com, Inc., on the other hand,
which results in (x) the sale of all or substantially all of the assets of
Move.com or any of its subsidiaries in one or a series of related
transactions, whether by merger, consolidation, sale of assets or otherwise,
(y) a merger, consolidation, sale of securities of Move.com or other
transaction or series of related transactions, as a result of which either
(1) any person or "group" (as defined in Rules 13d-1 and 13d-5 under the
Securities Exchange Act of 1934, as amended) becomes the beneficial owner of
securities representing at least thirty-five percent (35%) of the
outstanding Move.com Common Stock, the outstanding equity securities of
Move.com or the outstanding voting securities of Move.com or (2) the holders
of the voting securities of Move.com issued and outstanding prior to such
transaction or series of related transactions cease to hold at least
sixty-five percent (65%) fo the issued and outstanding common stock, equity
securities and voting securities of the surviving entity immediately
following such transaction or series of related transactions (in each case,
assuming the conversion of all convertible securities and the exercise of
all options, warrants and other rights held by such beneficial owner) or (z)
the directors of Move.com as of the date hereof together with directors
approved by a majority of the directors in office at the time of election of
any new directors of Move.com shall cease to constitute a majority of the
total number of directors of Move.com.
(e) Upon the Closing, (i) Cendant shall record on its books and
records the transfer of the Move.com Common Shares and the Warrants from
Seller to Buyer and (ii) WMC shall record on its books and records the
transfer of (A) the WMC Common Shares from Seller to Buyer and (B) the WMC
Preferred Shares from Buyer to Seller.
2. CLOSING. The closing (the "Closing") shall take place
simultaneously with the execution and delivery of this Agreement (the
"Closing Date"), at the offices of O'Sullivan Graev & Karabell, LLP, 30
Rockefeller Plaza, New York, New York 10112.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyer as follows:
(a) CORPORATE AUTHORIZATION. Seller has all requisite power and
authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby, and the execution, delivery and
performance by Seller of this Agreement have been duly authored by all
requisite action by Seller. This Agreement has been duly executed and
delivered by Seller and, assuming due execution by Cendant and Cendant
Finance, this Agreement constitutes a valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws and subject to general principles of
equity.
(b) EXPERIENCE; ACCESS TO INFORMATION. Seller is an accredited
investor within the meaning of Regulation D promulgated by the Securities
and Exchange Commission and, by virtue of its experience in evaluating and
investing in private placement transactions of securities in companies
similar to Cendant, Seller is capable of evaluating the merits and risks of
its investment in Cendant, and has the capacity to protect its own
interests. Seller acknowledges that Cendant does not make any representation
or warranty as to the future profitability, success or business prospects of
Cendant.
(c) INVESTMENT. Seller has not been formed solely for the purpose
of making this investment and is acquiring the Cendant Common Stock (if any)
for investment for its own account, not as a nominee or agent, and not with
the view to, or for resale in connection with, any distribution of any part
thereof, except pursuant to an effective registration statement pursuant to
the Securities Act. Seller understands that the Cendant Common Stock to be
acquired by it have not been registered under the Securities Act, or
applicable state and other securities laws by reason of a specific exemption
from the registration provisions of the Securities Act and applicable state
and other securities laws, the availability of which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy
of Seller's representations as expressed herein.
(d) VALID TITLE. Seller has valid title to the WMC Common Stock
and the Transferred Securities and there are no liens, charges or
encumbrances in respect of the WMC Common Stock or the Transferred
Securities. Seller has all rights under the Move.com Registration Rights
Agreement in connection with the Transferred Securities and has not assigned
any of such rights thereunder to any other Person.
(e) NO ADDITIONAL REPRESENTATIONS. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY REPRESENTATIONS AND
WARRANTIES MADE BY THE SELLER. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL
WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL THE SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Cendant and Cendant
Finance jointly and severally represent and warrant to Seller as of the date
hereof as follows:
(a) CORPORATE AUTHORIZATION. Each of Cendant and Cendant Finance
has all requisite power and authority to execute, deliver and perform this
Agreement and the transactions contemplated hereby, and the execution,
delivery and performance by each of Cendant and Cendant Finance of this
Agreement have been duly authorized by all requisite action by each of
Cendant and Cendant Finance. This Agreement has been duly executed and
delivered by each of Cendant and Cendant Finance and, assuming due execution
by WMC and Seller, this Agreement constitutes a valid and binding obligation
of each of Cendant and Cendant Finance, enforceable against each of Cendant
and Cendant Finance in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws and subject to general principles of equity.
(b) EXPERIENCE; ACCESS TO INFORMATION. Buyer is an accredited
investor within the meaning of Regulation D promulgated by the Securities
and Exchange Commission and, by virtue of its experience in evaluating and
investing in private placement transactions of securities in companies
similar to WMC, Buyer is capable of evaluating the merits and risks of its
investment in WMC, and has the capacity to protect its own interests. Buyer
acknowledges that WMC and Seller do not make any representation or warranty
as to the future profitability, success or business prospects of WMC. Buyer
is currently a stockholder of WMC, has had access to WMC's senior
management, has had an opportunity to ask questions and receive answers from
WMC and its senior management regarding matters relevant to WMC and an
investment therein and has had the opportunity to obtain any and all
information and conduct such due diligence review as it has deemed
appropriate.
(c) INVESTMENT. Cendant Finance has not been formed solely for the
purpose of making this investment and is acquiring the WMC Common Shares for
investment for its own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution of any part
thereof. Cendant Finance understands that the WMC Common Shares to be
acquired by it have not been registered under the Securities Act, or
applicable state and other securities laws by reason of a specific exemption
from the registration provisions of the Securities Act and applicable state
and other securities laws, the availability of which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy
of Cendant's and Cendant Finance's representations as expressed herein.
(d) VALID TITLE. Cendant Finance has valid title to all of the WMC
Preferred Shares purchased by Buyer on March 9, 2000 (or issued in
connection with any payment of an in-kind dividend thereon since such date)
and there are no liens, charges or encumbrances in respect of the WMC
Preferred Shares.
5. SALES OF MARKETABLE SECURITIES. In the event that Cendant
elects to pay a portion of the Homestore Transaction Amount by delivering
Marketable Securities to Seller pursuant to Section 1(d) hereof, Cendant
shall cause such Marketable Securities to be sold on Seller's behalf on the
Homestore Payment Date or as soon as possible thereafter through a broker
selected by Cendant on the Homestore Payment Date. The Proceeds of the sale
of such Marketable Securities shall be paid to Seller simultaneously with
the settlement of such sale transaction. As used in this Agreement, the
"Proceeds" of any sale of Marketable Securities by Seller hereunder shall be
equal to the cash proceeds, net of all underwriters', sales or brokers'
commissions and discounts and all other fees and expenses relating to or
arising out of the transactions contemplated hereby, including without
limitation, all registration expenses, in each case, that are incurred by
Seller and are not paid by Cendant.
6. REPURCHASES OF WMC COMMON STOCK BY WMC. WMC represents that the
WMC Common Stock being delivered to Buyer at the Closing constitutes no more
than 19.99% of the shares of WMC Common Stock outstanding as of the Closing
Date. WMC agrees that, for so long as Buyer owns any shares of WMC Common
Stock, WMC shall not, without the prior written consent of Buyer,
repurchase, redeem, reclassify, cancel or otherwise reduce the number of its
outstanding shares of capital stock if the effect of such repurchase,
redemption, reclassification, cancellation or other reduction would be to
cause Buyer to own more than 19.99% of the outstanding shares of WMC Common
Stock.
7. PUBLIC ANNOUNCEMENTS. Buyer and Seller hereby covenant and
agree to consult with each other before issuing, and provide each other the
opportunity to review and comment upon, any press release or other public
statement or disclosure with respect to the transactions contemplated by
this Agreement.
8. INDEMNIFICATION OF BUYER BY APOLLO. Apollo shall indemnify,
defend and hold harmless Buyer and any of its directors, officers, agents
and affiliates (the "Buyer Indemnified Parties") from and against any and
all losses, damages and liabilities (including reasonable attorneys' fees
and expenses) suffered by any of the Buyer Indemnified Parties as a result
of, arising out of, or incurred with respect to Buyer's ownership of the WMC
Common Shares (which, for the avoidance of doubt, shall exclude the loss of
the value of the WMC Common Shares) other than those losses, damages and
liabilities as a result of, arising out of, or incurred with respect to any
material misstatement by any Buyer Indemnified Party in any filing or
submission to any governmental authority or any document sent to Buyer's
stockholders.
9. MISCELLANEOUS. (a) Governing Law. All questions concerning the
construction, interpretation and validity of this Agreement shall be
governed by and construed and enforced in accordance with the internal law
of the State of New York, without giving effect to any choice or conflict of
law provision or rule (whether in the State of New York or any other
jurisdiction) that would cause the application of the law of any
jurisdiction other than the State of New York.
(b) SUBMISSION TO JURISDICTION. Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any court of the State of New York or Federal
court of the United States of America sitting in the Sate of New York, and
any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such court of the State of New
York or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT IN ANY COURT OF THE STATE OF NEW YORK OR
FEDERAL COURT SITTING IN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT.
(c) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together when delivered shall
constitute one and the same agreement.
(d) COMPLETE AGREEMENT. This Agreement and the instruments or
agreements referred to herein contains the complete agreement among the
parties and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral which may have
related to the subject matter hereof in any way.
(e) AMENDMENTS. This Agreement may only be amended in a writing
executed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
CHATHAM STREET HOLDINGS, LLC
By: /s/ Marc E. Becker
---------------------------------------
Name: Marc E. Becker
Title: Vice President
CENDANT CORPORATION
By: /s/ Eric J. Bock
---------------------------------------
Name: Eric J. Bock
Title: Senior Vice President - Law
CENDANT FINANCE HOLDING CORPORATION
By: /s/ Eric J. Bock
---------------------------------------
Name: Eric J. Bock
Title: Senior Vice President - Law
WMC FINANCE CO.
(with respect to Section 6 only)
By: /s/ Scott McAfee
---------------------------------------
Name: Scott McAfee
Title:
APOLLO INVESTMENT FUND III, L.P.
(with respect to Section 8 only)
By: Apollo Advisors II, L.P.,
its general partner
By: Apollo Capital Management II, Inc.
its general partner
By: /s/ Josh Harris
-----------------------------------------
Name: Josh Harris
Title: Vice President
AMENDMENT NO. 1, dated as of March 29,
2001 (this "Amendment") to the STOCK PURCHASE
AGREEMENT, dated as of November 24, 2000, by and
among CHATHAM STREET HOLDINGS, LLC, a Delaware
limited liability company, CENDANT CORPORATION, a
Delaware corporation, CENDANT FINANCE HOLDING
CORPORATION, a Delaware corporation and an
affiliate of Cendant Corporation, with respect to
Section 6 thereof only, WMC FlNANCE CO., a Delaware
corporation, and, with respect to Section 8 thereof
only, APOLLO INVESTMENT FUND III, L.P. (the
"Original Agreement", as amended, this
"Agreement").
Preamble
--------
WHEREAS, Section 9(e) of the Original Agreement allows the
amendment of the Original Agreement by a writing executed by each of the
parties thereto; and
WHEREAS, the undersigned constitute each of the parties to the
Original Agreement and have determined that it would be in their respective
best interests to amend the Original Agreement on the terms and conditions
set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties to this Amendment
hereby agree as follows:
Section 1. CAPITALIZED TERMS. Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Original
Agreement.
Section 2. AMENDMENTS TO THE ORIGINAL AGREEMENT. The Original
Agreement is hereby amended as follows:
(a) Section 1 of the Original Agreement is hereby amended by
deleting Section 1(b) in its entirety and substituting the following
language in lieu thereof:
"Cendant hereby agrees, at the Closing, to pay to Seller $75.1
million (the "Initial Payment Amount"), payable in consideration
for the conveyance of the securities set forth in Sections 1(a)(i)
and (ii). The Initial Payment Amount shall be paid in cash at the
Closing by wire transfer of immediately available funds to
accounts designated by Seller. Cendant hereby agrees to pay
Seller, on March 29, 2001, an additional amount of $5.0 million
(the "Additional Payment Amount"), payable in consideration for
the conveyance of the securities set forth in Sections 1(a)(i) and
(ii). The Additional Payment Amount shall be paid in cash on March
29, 2001 by wire transfer of immediately available funds to
accounts designated by the Seller."
(b) The first sentence of Section 1(d) of the Original Agreement
is hereby amended by deleting "$15.0 million" and replacing it with "$10.0
million".
Section 3. ENTIRE AGREEMENT. Except as modified by this Amendment,
the Original Agreement shall remain in full force and effect, enforceable in
accordance with its terms. This Amendment is not a consent to any waiver or
modification of any other terms or conditions of the Agreement or any of the
instruments or documents referred to in the Agreement and shall not
prejudice any right or rights which the parties thereto may now or hereafter
have under or in connection with the Agreement or any of the instruments or
documents referred to therein. The Original Agreement and this Amendment
contain all of the agreements between the parties with respect to the
subject matter thereof. The parties to this Amendment hereby acknowledge
that nothing contained herein shall modify or otherwise alter the
obligations of WMC Finance Co. pursuant to the Original Agreement.
Section 4. EFFECTIVENESS. This Amendment shall become effective on
the date each of the parties hereto shall have executed a copy hereof
(whether the same or different copies).
Section 5. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute one
agreement.
Section 6. GOVERNING LAW. All questions concerning the
construction, interpretation and validity of this Amendment shall be
governed by and construed and enforced in accordance with the internal law
of the State of New York, without giving effect to any choice or conflict of
law provision or rule (whether in the State of New York or any other
jurisdiction) that would cause the application of the law of any
jurisdiction other than the State of New York.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
CHATHAM STREET HOLDINGS, LLC
By: /s/ Marc E. Becker
------------------------
Name: Marc E. Becker
Title: Vice President
CENDANT CORPORATION
By: /s/ Samuel L. Katz
-------------------------
Name: Samuel L. Katz
Title: Senior Executive Vice President
CENDANT FINANCE HOLDING CORPORATION
By: /s/ Samuel L. Katz
-------------------------
Name: Samuel L. Katz
Title: Senior Executive Vice President
WMC FINANCE CO.
By: /s/ Scott A. McAfee
--------------------------
Name: Scott A. McAfee
Title: President and CEO
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.,
its general partner
By: Apollo Capital Management II, Inc.,
its general partner
By: /s/ Josh Harris
--------------------------
Name: Josh Harris
Title: Vice President
Exhibit 4
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of June 5,
2001, by and among Liberty Digital, Inc., a Delaware corporation ("LDIG"),
LDIG Move, Inc., a Delaware corporation and a wholly owned subsidiary of
LDIG (the "Seller"), Cendant Corporation, a Delaware corporation
("Cendant"), Cendant Membership Services Holdings, Inc., a Delaware
corporation and a wholly owned subsidiary of Cendant ("CMS").
WHEREAS, LDIG and Cendant are parties to a Purchase Agreement,
dated as of March 24, 2000 (the "Purchase Agreement") pursuant to which
1,598,030 shares (the "Tracking Stock Shares") of Cendant Corporation
common stock designated as Move.com Tracking Stock, par value $0.01 per
share, were issued and sold to Seller, as assignee of LDIG;
WHEREAS, pursuant to Section 4.10 of the Purchase Agreement, LDIG
and Cendant are to exchange on June 30, 2001 the Tracking Stock Shares for
$50 million of the common stock, par value $.01 per share, of Cendant
("Cendant Common Stock");
WHEREAS, the parties hereto deem it desirable and in their
respective best interests to enter into this Agreement in satisfaction of
their respective obligations under Section 4.10 of the Purchase Agreement.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. SALES OF TRANSFERRED SECURITIES.
(a) At the Closing, (i) Seller shall sell, assign, transfer and
convey to Cendant, without representation or warranty (other than as
expressly provided herein), all of its right, title and interest in and to
the Tracking Stock Shares, free and clear of all Liens (as defined herein),
other than Liens imposed as a result of actions by Cendant or its
affiliates (as the term "affiliates" is defined in Rule 12b-2 under the
Exchange Act, provided that LDIG and its affiliates shall not be deemed
affiliates of Cendant and its affiliates) and (ii) Cendant shall, and shall
cause CMS to, sell, assign, transfer and convey to Seller, without
representation or warranty (other than as expressly provided herein), all
of its right, title and interest in and to 1,164,048 shares (the "Homestore
Shares") of common stock, par value $.001 per share ("Homestore Common
Stock"), of Homestore.com, Inc. ("Homestore"), free and clear of all Liens,
other than Liens imposed as a result of actions by Seller or its
affiliates. The consideration to Seller for the sale of the Tracking Stock
Shares shall include Cendant's obligation to pay to Seller the Adjustment
Amount under the circumstances set forth in Section 1(b). The parties
acknowledge and agree that the exchange of (x) the Tracking Stock Shares
for (y) the Homestore Shares, together with Cendant's payment of the
Adjustment Amount, if required, shall constitute satisfaction of the
parties respective obligations under Section 4.10 of the Purchase
Agreement.
(b) In the event the Proceeds (as defined herein) from the sale
of the Homestore Shares are less than $50 million, Cendant shall, subject
to the terms of this Agreement, pay and deliver to Seller the Adjustment
Amount (as defined herein) in accordance with the terms of this Agreement.
The Adjustment Amount shall be payable, at Cendant's option (the exercise
of which shall be set forth in a written notice to Seller delivered on the
first business day following the Determination Date (as defined herein)),
in (i) cash or (ii) a number of shares (the "Cendant Shares") of Cendant
Common Stock, equal to (x) the Adjustment Amount divided by (y) the average
of the per share closing prices of Cendant Common Stock on the New York
Stock Exchange, Inc. (the "NYSE"), for each trading day during the 10
consecutive trading days immediately preceding the Determination Date (such
per share price and number of shares to be appropriately adjusted in the
event of any stock split, dividend, combination, recapitalization or
similar event (or the record date thereof), occurring during such 10-day
period). The "Adjustment Amount" will be equal to $50 million less the
aggregate Proceeds of the sale of all of the Homestore Shares. The
"Determination Date" shall be the date on which all Homestore Shares
delivered to Seller as provided herein have been sold or otherwise disposed
of by Seller. For purposes of this Agreement, all of the Homestore Shares
shall be deemed to have been sold or otherwise disposed of upon the
broker's execution of the trade relating to the last Homestore Share held
in the Seller Account (as defined herein), and not the date of settlement
of such trade. Seller shall cause the Bank (as defined herein) to provide
notice to Seller and Cendant as to the occurrence of the Determination
Date. For purposes of this Agreement, the term "business day" shall mean
any day other than Saturday, Sunday, a holiday, a bank holiday or a day in
which the NYSE is closed for business, and shall consist of the time period
from 12:00 a.m. through 12:00 midnight Eastern time and the term "close of
business" shall mean the close of business in New York City.
(c) Prior to the Closing Date, Seller shall open a brokerage
account (the "Seller Account") with Goldman Sachs & Co. (the "Bank"). At
the Closing, Cendant shall, and shall cause CMS to, transfer the Homestore
Shares to Seller and such shares shall be deposited in the Seller Account.
Seller agrees to instruct the Bank to sell all Homestore Shares delivered
to the Seller Account on or before the close of trading on the fifth (5th)
trading day following (but not including) the Closing Date (which fifth
(5th) trading day will be extended by the number of days, if any, that
sales of Homestore Common Stock are suspended from trading on the Nasdaq
Stock Market) in accordance with written instructions mutually agreed upon
by the parties. Seller shall instruct Bank to deliver on the Determination
Date to Seller and Cendant a written report setting forth the Proceeds of
the sale of the Homestore Shares. As used in this Agreement, the "Proceeds"
shall be equal to the gross cash proceeds received by Seller from the sale
of the Homestore Shares, without deduction of any sales or brokers'
commissions, fees and discounts.
(d) In the event that Cendant elects to pay the Adjustment Amount
in cash pursuant to Section 1(b) hereof, Cendant shall pay to Seller,
within two (2) business days of the Determination Date, such amount by wire
transfer of immediately available funds to an account designated by Seller.
In the event that Cendant elects to pay the Adjustment Amount by delivering
the Cendant Shares to Seller pursuant to Section 1(b) hereof, Cendant shall
deliver such Cendant Shares on or before the earlier of (i) the effective
date of the Cendant Registration Statement or (ii) the third business day
following the Determination Date to one or more accounts designated by the
Seller in writing.
2. CLOSING. The closing (the "Closing") shall take place at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New
York, New York 10036, simultaneously with the execution and delivery of
this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF LDIG AND SELLER. LDIG and
Seller jointly and severally represent and warrant to each of Cendant and
CMS as follows:
(a) ORGANIZATION. Each of LDIG and Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power and authority to
carry on its business substantially as it is now being conducted.
(b) CORPORATE AUTHORIZATION. Each of LDIG and Seller has all
requisite power and authority to execute, deliver and perform this
Agreement and the transactions contemplated hereby, and the execution,
delivery and performance by each of LDIG and Seller of this Agreement have
been duly authorized by all requisite corporate action by each of LDIG and
Seller. This Agreement has been duly executed and delivered by LDIG and
Seller and, assuming due execution by Cendant and CMS, this Agreement
constitutes a legal and binding obligation of each of LDIG and Seller,
enforceable against each of LDIG and Seller in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws relating to or affecting
creditors' rights generally, and to general principles of equity (whether
considered in a proceeding in equity or at law).
(c) EXPERIENCE; ACCESS TO INFORMATION. In connection with any
issuance of Cendant Shares to it in connection with the payment of the
Adjustment Amount, each of LDIG and Seller represents and warrants to
Cendant and CMS at the time of such issuance that (i) it is an accredited
investor within the meaning of Regulation D promulgated by the Securities
and Exchange Commission ("SEC") and, (ii) by virtue of its experience in
evaluating and investing in private placement transactions of securities in
companies similar to Cendant, it is capable of evaluating the merits and
risks of its investment in Cendant, and has the capacity to protect its own
interests; LDIG and Seller each acknowledges that neither Cendant nor CMS
has made any representation or warranty as to the future profitability,
success or business prospects of Cendant.
(d) VALID TITLE. The Tracking Stock Shares are owned by Seller
free and clear of any liens, claims, security interests, encumbrances,
restrictions on transfer (other than restrictions imposed under federal or
state securities laws) or voting (collectively, "Liens"), other than Liens
imposed as a result of actions by Cendant or its affiliates. At the
Closing, Cendant will receive good title to the Tracking Stock Shares.
(e) REQUIRED APPROVALS; NOTICES AND CONSENTS. Except as described
herein, no consent or approval of, other action by, or any notice to, any
governmental body or agency, domestic or foreign, or any third party is
required in connection with the execution and delivery by LDIG and Seller
of this Agreement or the consummation by LDIG and Seller of the
transactions contemplated hereby.
(f) NO ADDITIONAL REPRESENTATIONS. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY REPRESENTATIONS AND
WARRANTIES MADE BY LDIG AND SELLER. EXCEPT AS SPECIFICALLY SET FORTH
HEREIN, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND
EXCLUDED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL LDIG OR SELLER BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES.
4. REPRESENTATIONS AND WARRANTIES OF CENDANT AND CMS. Cendant and
CMS jointly and severally represent and warrant to Seller and LDIG as of
the date hereof as follows:
(a) ORGANIZATION. Each of Cendant and CMS is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power and authority to
carry on its business substantially as it is now being conducted.
(b) CORPORATE AUTHORIZATION. Each of Cendant and CMS has all
requisite power and authority to execute, deliver and perform this
Agreement and the transactions contemplated hereby, and the execution,
delivery and performance by each of Cendant and CMS of this Agreement have
been duly authorized by all requisite action by each of Cendant and CMS.
The board of directors of Cendant has authorized the issuance of the
Cendant Shares in connection with the payment of the Adjustment Amount.
This Agreement has been duly executed and delivered by each of Cendant and
CMS and, assuming due execution by Seller and LDIG, this Agreement
constitutes a legal and binding obligation of each of Cendant and CMS,
enforceable against each of Cendant and CMS in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws relating to or affecting
creditors' rights generally, and to general principles of equity (whether
considered in a proceeding in equity or at law).
(c) VALIDITY OF SHARES. (i) CENDANT SHARES. The Cendant Shares,
when issued, sold, and delivered to Seller in accordance with the terms of
this Agreement, (A) will be duly and validly issued, fully paid,
non-assessable and will be free of any Liens other than Liens imposed as a
result of actions by Seller or its affiliates, (B) the offer and sale of
such securities to Seller is not required to be registered under the
Securities Act of 1933, as amended (the "Securities Act"), and (C)
securities of the same class as the Cendant Shares are listed for trading,
and trading thereon is not suspended, on the NYSE. Upon delivery to Seller,
Cendant will pass valid title to the Cendant Shares and there are no Liens
in respect of the Cendant Shares, other than Liens resulting from any
action(s) by Seller or its affiliates.
(ii) CENDANT REGISTRATION STATEMENT. Cendant filed with the SEC
on April 27, 2001 a Registration Statement on Form S-3 to register under
the Securities Act the resale by Seller of the Cendant Shares (the "Cendant
Registration Statement"), and the Cendant Registration Statement has not
been amended or supplemented since the date of filing. The SEC has notified
Cendant that it does not intend to review the Cendant Registration
Statement and that, subject to filing an amendment disclosing the exact
number of Cendant Shares and providing to the SEC a written notice
requesting that the Cendant Registration Statement be declared effective
under the Securities Act, Cendant knows of no reason why the Cendant
Registration Statement would not be declared effective promptly following
the filing of such amendment and the making of such written request. As of
the effective date of the Cendant Registration Statement, (A) the resale of
the Cendant Shares by Seller will be duly registered under the Securities
Act pursuant to the Cendant Registration Statement and no stop order will
be issued or threatened with respect to such registration statement and no
person will have initiated or threatened to initiate any proceeding for
that purpose, (B) the information contained in the Cendant Registration
Statement will be true and accurate in all material respects, and will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under
which they were made, (C) the Cendant Shares may be resold by Seller
without restriction other than as set forth herein and in compliance with
the plan of distribution set forth in the prospectus included as part of
the Cendant Registration Statement and customary prospectus delivery
requirements (to the extent applicable), and (D) the Cendant Shares shall
be listed for trading, and trading thereon shall not be suspended, on the
NYSE. As of the date hereof, (W) the SEC has not requested any amendment or
supplements to the Cendant Registration Statement other than a request to
specify the exact number of Cendant Shares being registered for resale, (X)
no stop order has been issued or threatened with respect to the Cendant
Registration Statement and no person has initiated or threatened to
initiate any proceeding for that purpose, (Y) the information contained in
the Cendant Registration Statement is true and accurate in all material
respects, and does not include any untrue statement of material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances under which they were made, and (Z) the Cendant Shares may be
resold by Seller immediately after the Cendant Registration Statement has
been declared effective by the SEC without restriction other than as set
forth herein and in compliance with the plan of distribution set forth in
the prospectus included as part of the Cendant Registration Statement and
customary prospectus delivery requirements (to the extent applicable).
(iii) HOMESTORE SHARES. The Homestore Shares, when sold and
delivered to Seller in accordance with the terms of this Agreement, (A)
have been duly and validly issued, and are fully paid, and non-assessable,
(B) have been offered and sold to Seller pursuant to an effective
registration statement registering such shares under the Securities Act,
(C) may be resold publicly by Seller on The Nasdaq Stock Market immediately
after the delivery thereof pursuant to this Agreement without registration
under the Securities Act or any state securities laws or delivery of a
prospectus relating to such shares, and (D) securities of the same class as
the Homestore Shares are listed for trading, and trading thereon is not
suspended, on The Nasdaq Stock Market. Upon delivery to Seller, CMS will
pass valid title to the Homestore Shares and there are no Liens in respect
of the Homestore Shares, other than Liens resulting from any action(s) of
Seller or its affiliates. Seller will take the Homestore Shares free and
clear of any obligations owed to Homestore and neither Seller nor LDIG
shall be deemed a "selling stockholder" as such term is used in the
registration statement in respect of the Homestore Shares.
(d) SEC REPORTS. Since January 1, 2001, Cendant has filed all
required reports, schedules, forms, registration statements and other
documents, including exhibits and all other information incorporated
therein (the "Cendant SEC Documents"), with the SEC. As of their respective
dates, the Cendant SEC Documents complied in all material respects with the
requirements of the Securities Act, or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to such Cendant
SEC Documents, and none of the Cendant SEC Documents when filed (as amended
and restated and as supplemented by subsequently filed Cendant SEC
Documents) contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) REQUIRED APPROVALS; NOTICES AND CONSENTS. Except as described
herein, no consent or approval of, other action by, or any notice to, any
governmental body or agency, domestic or foreign, or any third party is
required in connection with the execution and delivery by Cendant or CMS of
this Agreement or the consummation by Cendant or CMS of the transaction
contemplated hereby.
(f) NO ADDITIONAL REPRESENTATIONS. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 4 ARE THE ONLY REPRESENTATIONS AND
WARRANTIES MADE BY CENDANT AND CMS. EXCEPT AS SPECIFICALLY SET FORTH
HEREIN, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND
EXCLUDED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL CENDANT OR CMS BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES.
5. POST-CLOSING COVENANTS. In the event Cendant elects to deliver
the Cendant Shares in payment of the Adjustment Amount, then following the
Closing, (a) Cendant shall:
(i) promptly prepare and file with the Commission such
amendments and supplements to the Cendant Registration Statement
relating to the Cendant Shares and the prospectus used in connection
therewith as may be necessary to (x) have the Cendant Registration
Statement declared effective by the SEC as promptly as practicable
after the Determination Date and (y) keep the Cendant Registration
Statement effective and to continue to comply with the provisions of
the Securities Act with respect to the disposition of all Cendant
Shares until such time as all Cendant Shares have been disposed of in
accordance with the intended methods of disposition set forth in the
Cendant Registration Statement;
(ii) furnish to Seller such number of conformed copies of
the Cendant Registration Statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number
of copies of the prospectus contained in the Cendant Registration
Statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities
Act, and such other documents, as Seller may reasonably request in
order to facilitate the public sale or other disposition of the
Cendant Shares;
(iii) use its reasonable efforts to register or qualify all
Cendant Shares and other securities covered by the Cendant
Registration Statement under such other securities laws or blue sky
laws of such jurisdictions as Seller shall reasonably request, to keep
such registrations or qualifications in effect for so long as the
Cendant Registration Statement remains in effect, and take any other
action which may be reasonably necessary or advisable to consummate
the disposition in such jurisdictions of the Cendant Shares, except
that Cendant shall not for any such purpose be required to qualify
generally to do business as a foreign corporation or dealer in any
jurisdiction wherein it would not but for the requirements of this
Section 5 be obligated to be so qualified, to subject itself to
taxation in any such jurisdiction, to conform its capitalization or
the composition of its assets at the time to the securities or blue
sky laws of such jurisdiction or to consent to general service of
process in any such jurisdiction;
(iv) notify Seller promptly and confirm such advice in
writing promptly thereafter:
(A) when any prospectus supplement or post-effective
amendment to the Cendant Registration Statement has been filed,
and, with respect to any post-effective amendment, when the same
has become effective;
(B) of any request by the Commission for amendments or
supplements to the Cendant Registration Statement or the
prospectus or for additional information;
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Cendant Registration
Statement or the initiation of any proceedings by any person for
that purpose;
(D) if at any time the representations and warranties
of Cendant contained herein relating to the Cendant Registration
Statement cease to be true and correct; and
(E) of the receipt by Cendant of any notification with
respect to the suspension of the qualification of any Cendant
Shares for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for
such purpose;
(v) notify Seller, at any time when a prospectus relating to
the Cendant Registration Statement is required to be delivered under
the Securities Act, upon Cendant's discovery that, or upon the
happening of any event as a result of which, the prospectus included
in the Cendant Registration Statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and as soon as practicable prepare and furnish to
Seller, a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made;
(vi) use its reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of the Cendant Registration
Statement at the earliest possible moment;
(vii) cooperate with Seller and each broker participating in
the disposition of the Cendant Shares and their respective counsel in
connection with any filings required to be made with the NYSE;
(viii) during the period when a prospectus is required to be
delivered under the Securities Act, promptly file all documents
required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act;
(ix) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months, but
not more than eighteen months, beginning with Cendant's first full
calendar quarter after the effective date of the Cendant Registration
Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder; and
(x) not amend or modify the plan of distribution set forth
in the prospectus included as a part of the Cendant Registration
Statement as filed with the SEC on April 27, 2001 or any of the
information relating to Seller or LDIG therein without the prior
written consent of LDIG; and
(b) Seller shall furnish Cendant in writing such information
regarding Seller and the distribution of the Cendant Shares as Cendant may
from time to time reasonably request in writing.
(c) Cendant will not file any amendment or any prospectus
supplement to the Cendant Registration Statement (excluding documents
incorporated by reference which constitute required reports under the
Exchange Act) to which Seller shall reasonably object, provided that
Cendant may file such documents in a form required by law or upon the
advice of its counsel.
6. STOP TRANSFER ORDERS, LEGENDS. The stock certificates
representing the Cendant Shares shall bear legends and be subject to stop
transfer orders in accordance with the following legend (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. SUCH SHARES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE
COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
Upon request of Seller following the Cendant Registration
Statement being declared effective, Cendant shall cause its transfer agent
to promptly remove the legend set forth above from the certificate(s)
evidencing the Cendant Shares or issue to Seller new certificates therefor
free of such legend.
7. PUBLIC ANNOUNCEMENTS. Except as otherwise agreed to by the
parties hereto, no party shall issue any report, statement or press release
or otherwise make any public statements with respect to this Agreement and
the transactions contemplated hereby, except as in the reasonable judgement
of such party may be required by law or in connection with its obligations
as a publicly-held, exchange-listed company, in which case the parties will
use their reasonable best efforts to reach mutual agreement as to the
language of any such report, statement or press release.
8. MATERIAL DEVELOPMENTS. Cendant may suspend the use of the
Cendant Registration Statement for sales of the Cendant Shares for a period
of time, not to exceed 90 days in any 12 month period, if (x) Cendant
determines that the continued use of the Cendant Registration Statement
would require Cendant to disclose a material financing, acquisition or
other corporate development of Cendant or any of its affiliates and Cendant
shall have determined that such disclosure is not in the best interests of
Cendant and shall have advised Seller in writing of such suspension and (y)
Cendant has simultaneously suspended sales of Cendant Common Stock under
all other then outstanding registration statements for the resale or sale
of Cendant Common Stock and/or suspended filing of any such registration
statements as a result of such event. The period of suspension of sales of
Cendant Shares by Seller shall not exceed the period during which sales by
other selling stockholders of Cendant Common Stock are similarly suspended.
9. REPURCHASE OBLIGATIONS. Notwithstanding the foregoing, in the
event (i) the Cendant Registration Statement is not declared effective by
the SEC prior to the close of business on the third business days following
the Determination Date or (ii) Cendant suspends sales of Cendant Shares
under the Cendant Registration Statement pursuant to Section 8 or
otherwise, (x) at any time during the two (2) trading days following (but
not including) the effective date of the Cendant Registration Statement
(such two day period, the "Initial Period"), or (y) for a period of three
(3) trading day (whether consecutively or in the aggregate) during the ten
(10) trading days immediately succeeding the end of the Initial Period,
then Cendant will, promptly offer in writing to repurchase all Cendant
Shares then owned by Seller at the per share price used for purposes of
determining the Adjustment Amount pursuant to Section 1(b) hereof payable
in cash, and if such offer is accepted in writing by Seller within two (2)
business days of delivery thereof, repurchase such shares within three (3)
business days of such election by Seller.
10. MISCELLANEOUS. (a) ENTIRE AGREEMENT. This Agreement
constitutes the entire agreement of the parties relating to the subject
matter hereof and supersedes other prior agreements and understandings
between the parties both oral and written regarding such subject matter.
(b) SEVERABILITY. Any provision of this Agreement that is held by
a court of competent jurisdiction to violate applicable law shall be
limited or nullified only to the extent necessary to bring the Agreement
within the requirements of such law.
(c) NOTICES. Any notice required or permitted by this Agreement
must be in writing and must be sent by facsimile, by nationally recognized
commercial overnight courier, or mailed by United States registered or
certified mail, addressed to the other party at the address below or to
such other address for notice (or facsimile number, in the case of a notice
by facsimile) as a party gives the other party written notice of in
accordance with this Section 10(c). Any such notice will effective as of
the date of receipt.
(i) if to Cendant, to:
Cendant Corporation
9 West 57th Street
37th Floor
New York, New York 10019
Fax: (212) 413-1922
Attention: Eric J. Bock
Senior Vice President, Legal
(ii) if to Seller or LDIG, to:
Liberty Digital Inc.
12312 W. Olympic Blvd.
Los Angeles, CA 90064
Fax: (310) 209-3606
Attention: Mark D. Rozells
Exec. Vice President and Chief Financial Officer
with a copy (which shall not constitute effective notice) to:
Baker Botts, L.L.P.
599 Lexington Avenue
New York, New York 10022
Fax: (212) 705-5125
Attention: Frederick H. McGrath
(d) GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by, enforced under and construed in accordance with the laws of the State
of New York, without giving effect to any choice or conflict of law
provision or rule thereof. Each of the parties hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America in each
case located in the County of New York for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such
courts) and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in
Section 10(c) (or to such other address for notice that such party has
given the other party written notice of in accordance with Section 10(c))
shall be effective service of process for any litigation brought against it
in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any
litigation arising out of this Agreement or the transactions contemplated
hereby in the courts of the State of New York or of the United States of
America in each case located in the County of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such litigation brought in any such court has been
brought in an inconvenient forum.
(e) DESCRIPTIVE HEADINGS. The descriptive headings herein are way
be construed to define, limit, describe, explain, modify, amplify, or add
to the interpretation, construction or meaning of any provision of, or
scope or intent of, this Agreement nor in any way affect this Agreement.
(f) COUNTERPARTS. This Agreement may be signed in counterparts
and all signed copies of this Agreement will together constitute one
original of this Agreement. This Agreement shall become effective when each
party hereto shall have received counterparts thereof signed by all the
other parties hereto.
(g) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and permitted assigns.
[signatures follow]
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
LIBERTY DIGITAL, INC.
By: /s/ Mark D. Rozells
----------------------------------------
Name: Mark D. Rozells
Title: Executive Vice President and
Chief Financial Officer
LDIG MOVE, INC.
By: /s/ Mark D. Rozells
----------------------------------------
Name: Mark D. Rozells
Title:
CENDANT CORPORATION
By: /s/ Eric J. Bock
----------------------------------------
Name: Eric J. Bock
Title: Senior Vice President, Legal
CENDANT MEMBERSHIP SERVICES
HOLDINGS, INC.
By: /s/ Eric J. Bock
----------------------------------------
Name: Eric J. Bock
Title:
Exhibit 5
EXCHANGE AGREEMENT
AGREEMENT, dated as of March 28, 2001, by and among Cendant
Membership Services Holdings, Inc., a Delaware corporation ("Buyer"), Joseph A.
Preis ("Preis"), and John P. McWeeny ("McWeeny" and together with Preis, the
"Sellers").
WHEREAS, Preis is the owner of 81,761 shares ("the Preis
Shares") of Cendant Corporation common stock designated as Move.com
Tracking Stock, par value $0.01 per share ("Move.com Stock"), and McWeeny
is the owner of 15,751 shares of Move.com Stock (the "McWeeny Shares" and
together with the Preis Shares, the "Tracking Stock Shares");
WHEREAS, Buyer is a party to an Agreement and Plan of
Reorganization, dated as of October 26, 2000, by and among Homestore.com,
Inc., ("Homestore"), Metal Acquisition Corp., WW Acquisition Corp.,
Move.com, Inc. ("Move.com"), Welcome Wagon International Inc., Buyer and
Cendant Corporation, a Delaware corporation ("Parent"), pursuant to which
each outstanding share of common stock of Move.com, par value $.01 per
share, was converted into the right to receive .7284 shares (the "Exchange
Ratio") of common stock of Homestore.com, Inc., par value $0.001 per share
("Homestore Common Stock"); and
WHEREAS, the parties desire to exchange Tracking Stock
Shares for shares of Homestore Common Stock at the Exchange Ratio
(substituting Tracking Stock Shares for shares of common stock of Move.com
in the calculation), on the terms and conditions provided for herein.
NOW, THEREFORE, in consideration of the provisions
contained herein, the parties hereto agree as follows:
1. EXCHANGE OF TRACKING STOCK SHARES FOR
HOMESTORE SHARES.
1.1 Exchange of Shares. On the terms and subject to the
conditions contained herein, Buyer agrees to exchange with the Sellers and
the Sellers agree to exchange with Buyer (i) 59,555 shares of Homestore
Common Stock (the "Preis Homestore Shares") in exchange for the Preis
Shares, and (ii) 11,473 shares of Homestore Common Stock (the "McWeeny
Homestore Shares" and, together with the Preis Homestore Shares, the
"Homestore Shares") in exchange for the McWeeny Shares. Pursuant to a
Registration Rights Agreement, dated as of October 26, 2000 and effective
as of February 16, 2000, by and between Homestore and Parent (the
"Registration Rights Agreement"), Homestore is required to file a
registration statement on Form S-3 no later than May 17, 2001 for a public
offering of the Homestore Shares (the "Shelf Registration").
1.2 Delivery of Shares. (a) At the Closing each of the
Sellers shall deliver to Buyer validly issued certificates representing the
Tracking Stock Shares duly endorsed in blank or accompanied by stock powers
duly executed in blank, with all necessary stock transfer stamps affixed.
(b) At the Closing Buyer shall (i) deliver to Preis a
validly issued certificate representing the Preis Homestore Shares duly
endorsed in blank or accompanied by stock powers duly executed in blank,
with all necessary stock transfer stamps affixed and (ii) deliver to
McWeeny a validly issued certificate representing the McWeeny Homestore
Shares duly endorsed in blank or accompanied by stock powers duly executed
in blank, with all necessary stock transfer stamps affixed.
2. THE CLOSING. Upon the terms and subject to the
conditions of this Agreement, it is intended that the closing of the
transactions contemplated by this Agreement (the "Closing") shall take
place on the date of execution of this Agreement at the offices of Skadden,
Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York
10036, at 10:00 a.m. (local time); provided, however, if any of the
conditions set forth in this Agreement shall not have been satisfied or
waived as of the date of this Agreement, then the Closing shall take place
on the third business day after satisfaction of all the conditions provided
for in Section 5 hereof, or at such other place and time as the parties
hereto shall agree in writing (the time and date of such closing being
referred to herein as the "Closing Date"). The parties hereto agree to use
their best efforts to have the Closing occur as soon as practicable
consistent with the provisions of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
Each of the Sellers jointly and severally represent and warrant to Buyer as
follows:
3.1 Authorization. Each Seller has full power and
authority to enter into and to perform its obligation under this Agreement
in accordance with its terms.
3.2 Binding Agreement. This Agreement has been duly and
validly executed and delivered on behalf of each Seller and, assuming due
authorization, execution and delivery by Buyer, constitutes the legal and
binding obligation of each of the Sellers enforceable against the Sellers
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, and to
general equity principles (whether considered in a proceeding in equity or
at law).
3.3 Required Approvals, Notices and Consents. Except as
described herein or in Schedule 3.3 hereof, no consent or approval of,
other action by, or any notice to, any governmental body or agency,
domestic or foreign, or any third party is required in connection with the
execution and delivery by each of the Sellers of this Agreement or the
consummation by each of the Sellers of the transaction contemplated hereby.
3.4 Restricted Securities. Until the Shelf Registration
is declared effective by the Securities and Exchange Commission pursuant to
the Registration Rights Agreement (which may or may not occur by May 17,
2001), each Seller understands that (a) the Homestore Shares to be received
by such Seller hereunder are characterized as "restricted securities" under
the federal securities laws inasmuch as such securities are being acquired
from Buyer in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances
and (b) the certificate(s) representing the Homestore Shares shall bear the
following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A WRITTEN
OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE ISSUER IN FORM
AND SUBSTANCE, THAT SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933.
The Sellers must request that Homestore remove the legend
set forth above from the certificates evidencing the Homestore Shares or
issue to such holder new certificates therefor free of such legend in
connection with the Shelf Registration.
3.5 Suitability Standards.
(a) Each Seller is acquiring the Homestore Shares
for investment purposes only and solely for his
own accounts and not with a view to, or for
resale in connection with, the distribution or
disposition thereof, except for such
distributions or dispositions which are effected
in compliance with the Securities Act;
(b) Each Seller understand that the Homestore Shares
have not been registered under the Securities
Act or under any state securities or "blue sky"
laws;
(c) Each Seller will not directly or indirectly
offer, sell, transfer, assign, pledge,
hypothecate or otherwise dispose of, or solicit
any offers to purchase or otherwise acquire or
take a pledge of, any of the Homestore Shares,
except in accordance with the Securities Act and
all applicable state securities or "blue sky"
laws;
(d) The financial situation of each Seller is such
that he can afford to bear the economic risk of
holding the Homestore Shares for an indefinite
period of time and suffer complete loss of his
investment in the Homestore Shares;
(e) Each Seller has such knowledge and experience in
financial and business matters that he is
capable of evaluating the merits and risks
relating to his investment in the Homestore
Shares;
(f) Each Seller acknowledge that the Homestore
Shares must be held indefinitely and each Seller
must continue to bear the economic risk of his
investments in the Homestore Shares until the
Homestore Shares are subsequently registered
under the Securities Act or an exemption from
such registration is available;
(g) Each Seller understands that the Homestore
Shares represent a speculative investment which
involves a high degree of risk of loss of his
investment therein;
(h) In making his decision to receive the Homestore
Shares under this Agreement, each Seller has
relied upon independent investigations made by
his and, to the extent believed by him to be
appropriate, his representatives, including his
own professional, tax and other advisors;
(i) In making his decision to receive the Homestore
Shares under this Agreement, each Seller has not
received or relied upon any information relating
the Homestore from Buyer and each Seller has
relied solely upon the public filings of
Homestore to evaluate the risks associated with
ownership of the Homestore Shares; and
(j) All information that each Seller has provided to
Buyer concerning himself and his financial
position and the financial position of Preis'
spouse is true, complete and correct as of the
date of this Agreement.
3.6 Fees and Commissions. No agent, broker, investment
banker, person or firm acting on behalf of or under the authority of either
Seller is or will be entitled to any broker's or finder's fee or any other
commission directly or indirectly in connection with the transactions
contemplated herein. Each Seller agrees to indemnify and hold harmless
Buyer from liability for any compensation to any intermediary retained or
otherwise authorized to act by, or on behalf of, such Seller and the fees
and expenses of defending against such liability or alleged liability.
3.7 Transfer Instructions. Each Seller agrees that
Homestore may provide for appropriate transfer instructions to implement
the provisions of Section 3.4 hereof.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer
represents and warrants to each of the Sellers as follows:
4.1 Organization and Standing. Buyer is a corporation
duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation.
4.2 Binding Agreement. Buyer has all requisite corporate
power and authority to enter into, execute and deliver this Agreement, to
carry out its obligations hereunder and to consummate the transaction
contemplated hereby. This Agreement has been duly and validly authorized,
executed and delivered by Buyer and, assuming due authorization, execution
and delivery by each of the Sellers, constitutes the legal and binding
obligation of Buyer enforceable against Buyer in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, and to general equity principles (whether
considered in a proceeding in equity or at law).
4.3 Fees and Commissions. No agent, broker, investment
banker, person or firm acting on behalf of or under the authority of Buyer
is or will be entitled to any broker's or finder's fee or any other
commission directly or indirectly in connection with the transactions
contemplated herein.
4.4 Required Approvals, Notices and Consents. Except as
described herein or in Schedule 4.4 hereof, no consent or approval of,
other action by, or any notice to, any governmental body or agency,
domestic or foreign, or any third party is required in connection with the
execution and delivery by Buyer of this Agreement or the consummation by
Buyer of the transaction contemplated hereby.
5. CONDITIONS PRECEDENT. To the extent that the date of
this Agreement is not also the date of the Closing the following shall
apply: The obligations of each party hereunder are subject to the
fulfillment on or prior to the Closing as follows:
5.1 Representations, Warranties and Agreements. The
representations and warranties of the other party hereto shall be true and
correct in all material respects on the Closing Date as though made on and
as of such date and the other party shall have performed all other
obligations and agreements contained in this Agreement to be performed
prior to the Closing.
6. MISCELLANEOUS.
6.1 Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior agreements, arrangements and
undertakings, whether written or oral, relating to matters provided for
herein. There are no provisions, undertakings, representations or
warranties relative to the subject matter of this Agreement not expressly
set forth herein.
6.2 Expenses. Except as otherwise specifically provided
in this Agreement, all costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and accountants,
incurred in connection with this Agreement and the transaction contemplated
hereby shall be paid by the party incurring such costs and expenses,
whether or not the Closing shall have occurred.
6.3 Notices. Any notice, demand, claim, notice of claim,
request or communication required or permitted to be given under the
provisions of this Agreement shall be in writing and shall be deemed to
have been duly given if delivered personally by facsimile transmission or
sent by first class or certified mail, postage prepaid to the following
addresses,
If to Preis:
Joseph A. Preis
c/o MetroRent, Inc.
2021 Fillmore Street
San Francisco, California 94115
Facsimile: (415) 563-0383
With a copy to
Dudnick Detwiler Rivin & Stikker LLP
351 California Street, 15th Floor
San Francisco, California 94104
Attention: Jeffrey B. Detwiler, Esq.
Facsimile: (415) 982-1401
If to McWeeny:
John P. McWeeny
c/o MetroRent, Inc.
2021 Fillmore Street
San Francisco, California 94115
Facsimile: (415) 563-0383
with a copy to:
Dudnick Detwiler Rivin & Stikker LLP
351 California Street, 15th Floor
San Francisco, California 94104
Attention: Jeffrey B. Detwiler, Esq.
Facsimile: (415) 982-1401
If to Buyer:
c/o Cendant Corporation
9 West 57th Street
New York, New York 10019
Attention: Eric J. Bock, Esq.
Facsimile: (212) 413-1922
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10038
Attention: David Fox, Esq.
Facsimile: (212) 735-2000
or to such other address as any party may request by notifying in writing
all of the other parties to this Agreement in accordance with this Section
6.3.
Any such notice shall be deemed to have been received on
the date of personal delivery, the date set forth on the postal service
return receipt, the date of delivery shown on the records of the overnight
courier or the date shown on the facsimile confirmation, as applicable.
6.4 Benefit and Assignment. This Agreement will be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. There shall be no assignment
of any interest under this Agreement by any party except that Buyer may
assign its rights hereunder to any wholly owned subsidiary of Buyer;
provided, however, that no such assignment shall relieve the assignor of
its obligations under this Agreement. Nothing herein, express or implied,
is intended to or shall confer upon any other person any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
6.5 Waiver. Any waiver of any provision of this Agreement
shall be valid only if set forth in an instrument in writing signed by the
party to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of
the same term or condition, or a waiver of any other term or condition, of
this Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any such rights.
6.6 Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, the
Sellers and Buyer.
6.7 Release of Claims. The Sellers hereby fully and
unconditionally releases from any and all claims, actions, causes of
actions, lawsuits, damages, liabilities, costs, losses, expenses,
assessments, sums of money, promises and demands of any nature whatsoever
of the Sellers against Buyer and each of its respective officers,
directors, employees or agents which are related to or arise out of (a) any
act taken or omitted to be taken in connection with or in anticipation of
the transactions contemplated hereby or (b) any act taken or omitted to be
taken by Buyer in connection with the transactions contemplated hereby;
provided that the foregoing shall in no event operate as a release of
claims, actions, causes of action, lawsuits, damages, liabilities, costs,
losses, expenses, assessments, sums of money, promises or demands of any
nature whatsoever that in any way relate to or arise out of or in
connection with that certain Asset Purchase Agreement among Parent,
Move.com, Sellers and others dated as of October 29, 1999, as amended,
those certain Employment Agreements between Rent Net, Inc. and each Seller
dated December 17, 1999, that certain Escrow Agreement among Move.com, Bank
of San Francisco, Sellers and others dated as of December 17, 1999, and
those certain Stock Option Agreements between Move.com and each Seller
dated as of January 13, 2000.
6.8 Construction of this Agreement. The language used in
this Agreement shall be deemed to be the language chosen by the parties
hereto to express their mutual agreement, and this Agreement shall not be
deemed to have been prepared by any single party hereto. The headings of
the sections and subsections of this Agreement are inserted as a matter of
convenience and for reference purposes only and in no respect define, limit
or describe the scope of this Agreement or the intent of any section or
subsection. This Agreement may be executed in one or more counterparts and
by the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
6.9 Governing Law. This Agreement shall be governed by,
enforced under and construed in accordance with, the laws of the State of
New York, without giving effect to any choice of law provision or rule
thereof. The parties submit to the exclusive jurisdiction of the courts of
the State of New York and of the United States of America in each case
located in the County of New York for any litigation arising out of or
relating to the Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, this Agreement has been duly executed
by the parties hereto as of the date first above written.
CENDANT MEMBERSHIP SERVICES HOLDINGS, INC.
/s/ Eric J. Bock
-------------------------------------------
Name: Eric J. Bock
Title: Senior Vice President & Secretary
JOSEPH A. PREIS
/s/ Joseph A. Preis
--------------------------------------------
JOHN P. MCWEENY
/s/ John P. McWeeny
--------------------------------------------
Exhibit 6
EXCHANGE AGREEMENT
AGREEMENT, dated as of March 28, 2001, by and among Cendant
Membership Services Holdings, Inc., a Delaware corporation ("Buyer"),
Richard Henkin ("Richard"), and Sonia Henkin ("Sonia" and together with
Richard, the "Sellers").
WHEREAS, the Sellers own of 6,358 shares ("Tracking Stock
Shares") of Cendant Corporation common stock designated as Move.com
Tracking Stock, par value $0.01 per share ("Move.com Stock");
WHEREAS, Buyer is a party to an Agreement and Plan of
Reorganization, dated as of October 26, 2000, by and among Homestore.com,
Inc., ("Homestore"), Metal Acquisition Corp., WW Acquisition Corp.,
Move.com, Inc. ("Move.com"), Welcome Wagon International Inc., Buyer and
Cendant Corporation, a Delaware corporation ("Parent"), pursuant to which
each outstanding share of common stock of Move.com, par value $.01 per
share, was converted into the right to receive .7284 shares (the "Exchange
Ratio") of common stock of Homestore.com, Inc., par value $0.001 per share
("Homestore Common Stock"); and
WHEREAS, the parties desire to exchange Tracking Stock Shares for
shares of Homestore Common Stock at the Exchange Ratio (substituting
Tracking Stock Shares for shares of common stock of Move.com in the
calculation), on the terms and conditions provided for herein.
NOW, THEREFORE, in consideration of the provisions and the mutual
consents contained herein, the parties hereto agree as follows:
1. EXCHANGE OF TRACKING STOCK SHARES FOR HOMESTORE SHARES.
1.1 EXCHANGE OF SHARES. On the terms and subject to the
conditions contained herein, Buyer agrees to exchange with the Sellers and
the Sellers agree to exchange with Buyer 4,631 shares of Homestore Common
Stock (the "Homestore Shares") in exchange for the Tracking Stock Shares.
Pursuant to a Registration Rights Agreement, dated as of October 26, 2000
and effective as of February 16, 2000, by and between Homestore and Parent
(the "Registration Rights Agreement"), Homestore is required to file a
registration statement on Form S-3 no later than May 17, 2001 for a public
offering of the Homestore Shares (the "Shelf Registration").
1.2 DELIVERY OF SHARES. (a) At the Closing each of the Sellers
shall deliver to Buyer a validly issued certificate representing the
Tracking Stock Shares duly endorsed in blank or accompanied by stock powers
duly executed in blank, with all necessary stock transfer stamps affixed.
(b) At the Closing Buyer shall deliver to the Sellers a validly
issued certificate representing the Homestore Shares duly endorsed in blank
or accompanied by stock powers duly executed in blank, with all necessary
stock transfer stamps affixed.
2. THE CLOSING. Upon the terms and subject to the conditions of
this Agreement, it is intended that the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place on the date
of execution of this Agreement at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, Four Times Square, New York, New York 10036, at 10:00
a.m. (local time); provided, however, if any of the conditions set forth in
this Agreement shall not have been satisfied or waived as of the date of
this Agreement, then the Closing shall take place on the third business day
after satisfaction of all the conditions provided for in Section 5 hereof,
or at such other place and time as the parties hereto shall agree in
writing (the time and date of such closing being referred to herein as the
"Closing Date"). The parties hereto agree to use their best efforts to have
the Closing occur as soon as practicable consistent with the provisions of
this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the
Sellers jointly and severally represent and warrant to Buyer as follows:
3.1 AUTHORIZATION. Each Seller has full power and authority to
enter into and to perform its obligation under this Agreement in accordance
with its terms.
3.2 BINDING AGREEMENT. This Agreement has been duly and validly
executed and delivered on behalf of each Seller and, assuming due
authorization, execution and delivery by Buyer, constitutes the legal and
binding obligation of each of the Sellers enforceable against the Sellers
in accordance with its terms subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, to
general equity principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
3.3 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as described
herein or in Schedule 3.4 hereof, no consent or approval of, other action
by, or any notice to, any governmental body or agency, domestic or foreign,
or any third party is required in connection with the execution and
delivery by each of the Sellers of this Agreement or the consummation of
the transaction contemplated hereby.
3.4 RESTRICTED SECURITIES. Until the Shelf Registration is
declared effective by the Securities and Exchange Commission pursuant to
the Registration Rights Agreement (which may or may not occur by May 17,
2001), each Seller understands that (a) the Homestore Shares to be received
by such Seller hereunder are characterized as "restricted securities" under
the federal securities laws inasmuch as such securities are being acquired
from Buyer in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances
and (b) the certificate(s) representing the Homestore Shares shall bear the
following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A WRITTEN
OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE ISSUER IN FORM
AND SUBSTANCE, THAT SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND VOTING CONTAINED IN
STOCKHOLDER AGREEMENT WHICH MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST OF THE HOLDER OR RECORD OF THIS SECURITY TO THE SECRETARY
OF THE CORPORATION AT THE PRINCIPAL OFFICES OF THE CORPORATION.
The Sellers must request that Homestore remove the legend set
forth above from the certificates evidencing the Homestore Shares or issue
to such holder new certificates therefor free of such legend in connection
with the Shelf Registration.
3.5 SUITABILITY STANDARDS.
(a) Each Seller is acquiring the Homestore Shares for investment
purposes only and solely for his own accounts and not with a
view to, or for resale in connection with, the distribution
or disposition thereof, except for such distributions or
dispositions which are effected in compliance with the
Securities Act;
(b) Each Seller understand that the Homestore Shares have not
been registered under the Securities Act or under any state
securities or "blue sky" laws;
(c) Each Seller will not directly or indirectly offer, sell,
transfer, assign, pledge, hypothecate or otherwise dispose
of, or solicit any offers to purchase or otherwise acquire
or take a pledge of, any of the Homestore Shares, except in
accordance with the Securities Act and all applicable state
securities or "blue sky" laws;
(d) The financial situation of each Seller is such that he can
afford to bear the economic risk of holding the Homestore
Shares for an indefinite period of time and suffer complete
loss of his investment in the Homestore Shares;
(e) Each Seller has such knowledge and experience in financial
and business matters that he is capable of evaluating the
merits and risks relating to his investment in the Homestore
Shares;
(f) Each Seller acknowledge that the Homestore Shares must be
held indefinitely and each Seller must continue to bear the
economic risk of his investments in the Homestore Shares
until the Homestore Shares are subsequently registered under
the Securities Act or an exemption from such registration is
available;
(g) Each Seller understands that the Homestore Shares represent
a speculative investment which involves a high degree of
risk of loss of his investment therein;
(h) In making his decision to receive the Homestore Shares under
this Agreement, each Seller has relied upon independent
investigations made by his and, to the extent believed by
him to be appropriate, his representatives, including his
own professional, tax and other advisors;
(i) In making his decision to receive the Homestore Shares under
this Agreement, each Seller has not received or relied upon
any information relating the Homestore from Buyer and each
Seller has relied solely upon the public filings of
Homestore to evaluate the risks associated with ownership of
the Homestore Shares; and
(j) All information that each Seller has provided to Buyer
concerning himself and his financial position is true,
complete and correct as of the date of this Agreement.
3.6 FEES AND COMMISSIONS. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of either Seller
is or will be entitled to any broker's or finder's fee or any other
commission directly or indirectly in connection with the transactions
contemplated herein. Each Seller agrees to indemnify and hold harmless
Buyer from liability for any compensation to any intermediary retained or
otherwise authorized to act by, or on behalf of, such Seller and the fees
and expenses of defending against such liability or alleged liability.
3.7 TRANSFER INSTRUCTIONS. Each Seller agrees that Homestore may
provide for appropriate transfer instructions to implement the provisions
of Section 3.4 hereof.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to each of the Sellers as follows:
4.1 ORGANIZATION AND STANDING. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
4.2 BINDING AGREEMENT. Buyer has all requisite corporate power
and authority to enter into, execute and deliver this Agreement, to carry
out its obligations hereunder and to consummate the transaction
contemplated hereby. This Agreement has been duly and validly authorized,
executed and delivered by Buyer and, assuming due authorization, execution
and delivery by each of the Sellers, constitutes the legal and binding
obligation of Buyer enforceable against Buyer in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, to general equity principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
4.3 FEES AND COMMISSIONS. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of Buyer is or
will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated
herein.
4.4 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as described
herein or in Schedule 4.4 hereof, no consent or approval of, other action
by, or any notice to, any governmental body or agency, domestic or foreign,
or any third party is required in connection with the execution and
delivery by the Buyer of this Agreement or the consummation of the
transaction contemplated hereby.
5. CONDITIONS PRECEDENT. To the extent that the date of this
Agreement is not also the date of the Closing the following shall apply:
The obligations of each party hereunder are subject to the fulfillment on
or prior to the Closing as follows:
5.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations and warranties of the other party hereto shall be true and
correct in all material respects on the date of the Closing Date as though
made on and as of such date and the other party shall have performed all
other obligations and agreements contained in this Agreement to be
performed prior to the Closing.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior agreements, arrangements and
undertakings, whether written or oral, relating to matters provided for
herein. There are no provisions, undertakings, representations or
warranties relative to the subject matter of this Agreement not expressly
set forth herein.
6.2 EXPENSES. Except as otherwise specifically provided in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transaction contemplated hereby
shall be paid by the party incurring such costs and expenses, whether or
not the Closing shall have occurred.
6.3 NOTICES. Any notice, demand, claim, notice of claim, request
or communication required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally by facsimile transmission or sent by first
class or certified mail, postage prepaid to the following addresses,
If to the Sellers:
Homehunters
1038 North Fairfax Avenue
West Hollywood, California 90046
Attention: Richard Henkin
Facsimile: (323) 848-8763
If to Buyer:
c/o Cendant Corporation
9 West 57th Street
New York, New York 10019
Attention: Eric J. Bock, Esq.
Facsimile: (212) 413-1922
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10038
Attention: David Fox, Esq.
Facsimile: (212) 735-2000
or to such other address as any party may request by notifying in writing all
of the other parties to this Agreement in accordance with this Section 6.3
Any such notice shall be deemed to have been received on the date
of personal delivery, the date set forth on the postal service return
receipt, the date of delivery shown on the records of the overnight courier
or the date shown on the facsimile confirmation, as applicable.
6.4 BENEFIT AND ASSIGNMENT. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. There shall be no assignment of any
interest under this Agreement by any party except that Buyer may assign its
rights hereunder to any wholly owned subsidiary of Buyer; provided,
however, that no such assignment shall relieve the assignor of its
obligations under this Agreement. Nothing herein, express or implied, is
intended to or shall confer upon any other person any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
6.5 WAIVER. Any waiver of any provision of this Agreement shall
be valid only if set forth in an instrument in writing signed by the party
to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of
the same term or condition, or a waiver of any other term or condition, of
this Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any such rights.
6.6 AMENDMENT. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, the Sellers
and Buyer.
6.7 RELEASE OF CLAIMS. The Sellers hereby fully and
unconditionally releases from any and all claims, actions, causes of
actions, lawsuits, damages, liabilities, costs, losses, expenses,
assessments, sums of money, promises and demands of any nature whatsoever
of the Sellers against Buyer and each of its respective officers,
directors, employees or agents which are related to or arise out of (a) any
act taken or omitted to be taken in connection with or in anticipation of
the transactions contemplated hereby or (b) any act taken or omitted to be
taken by Buyer in connection with the transactions contemplated hereby.
6.8 CONSTRUCTION OF THIS AGREEMENT. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto
to express their mutual agreement, and this Agreement shall not be deemed
to have been prepared by any single party hereto. The headings of the
sections and subsections of this Agreement are inserted as a matter of
convenience and for reference purposes only and in no respect define, limit
or describe the scope of this Agreement or the intent of any section or
subsection. This Agreement may be executed in one or more counterparts and
by the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
6.9 GOVERNING LAW. This Agreement shall be governed by, enforced
under and construed in accordance with, the laws of the State of New York,
without giving effect to any choice of law provision or rule thereof. The
parties submit to the exclusive jurisdiction of the courts of the State of
New York and of the United States of America in each case located in the
County of New York for any litigation arising out of or relating to the
Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
CENDANT MEMBERSHIP SERVICES HOLDINGS, INC.
/s/ Eric J. Bock
--------------------------------------------
Name: Eric J. Bock
Title: Senior Vice President & Secretary
RICHARD HENKIN
/s/ Richard Henkin
--------------------------------------------
SONIA HENKIN
/s/ Sonia Henkin
--------------------------------------------
Exhibit 7
DEVELOPMENT AGREEMENT
DEVELOPMENT AGREEMENT, dated as of March 30, 2001 (this
"Agreement"), by and between Cendant Internet Group, Inc., a Delaware
corporation ("CIG"), and Travel Portal, Inc., a Delaware corporation (the
"Company").
WHEREAS, in connection with the execution of this Agreement, the
Company and CIG are entering into a Transaction Agreement (the "Transaction
Agreement"); and
WHEREAS, in connection with the transactions contemplated by the
Transaction Agreement, CIG has agreed to advance funds and shares of common
stock ("Homestore Common Stock") of Homestore.com, Inc. ("Homestore") to
the Company solely for the Company's use in researching and developing
Internet-related products and systems.
NOW, THEREFORE, in consideration of the foregoing and the
covenants and agreements set forth herein, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Advance. (a) Subject to the terms and conditions of this
Agreement, as soon as practicable after the execution of this Agreement,
CIG shall advance, or cause one or more of its subsidiaries to advance, to
the Company (i) $45,000,000 in cash, payable by wire transfer of
immediately available funds to one or more accounts designated by the
Company for such purpose and (ii) 1,500,000 shares of Homestore Common
Stock (which shares have a fair market value of $33,656,250 (collectively,
the "Advance"). The parties hereto agree that the Company shall use the
Advance solely for the purpose of researching and developing
Internet-related products and systems.
(b) The certificate representing the shares of Homestore Common
Stock delivered as part of the Advance, and any certificates subsequently
issued with respect thereto or in substitution therefor (including any
shares issued or issuable in respect of any such shares upon any stock
split stock dividend, recapitalization, or similar event), shall bear the
following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A WRITTEN
OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE ISSUER IN FORM
AND SUBSTANCE, THAT SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND VOTING CONTAINED IN
STOCKHOLDER AGREEMENT WHICH MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST OF THE HOLDER OF RECORD OF THIS SECURITY TO THE SECRETARY
OF THE CORPORATION AT THE PRINCIPAL OFFICES OF THE CORPORATION."
2. Interest. Commencing on the first day of the first consecutive
twelve month period in which the Company's EBITDA (calculated as set forth
in Section 3(a)(i) below) equals or exceeds $20,000,000, interest shall
accrue on the outstanding unpaid amount of the Advance at an annual rate
equal to Eighteen Percent (18%). Interest shall be payable only upon
repayment of the Advance in accordance with Section 3 hereof. Interest
shall be payable in cash. Any payments made by the Company hereunder shall
be applied first to any accrued and unpaid interest and second to the
principal amount of the Advance.
3. Repayment. (a) The Company agrees to repay to CIG the
$78,656,250 Advance, in full and with interest as set forth in Section 2
hereof (the "Repayment"), upon the earliest of the following events to
occur:
(i) 90 days following the Company achieving earnings before
income taxes, depreciation and amortization (exclusive of any
income or losses resulting from the ownership and/or any sale of
the Homestore Common Stock being advanced to the Company
hereunder) ("EBITDA") of at least $20,000,000 for any consecutive
twelve months (as reflected in the consolidated income statements
of the Company prepared in accordance with generally accepted
accounting principles (except for the absence of footnotes)) (the
"EBITDA Target"), provided however, that the Company shall not be
required to make the Repayment unless the Company achieves the
EBITDA Target during the 5-year period from April 1, 2001 to March
31, 2006; or
(ii) the consummation of a Change of Control (as defined
below) of the Company in a transaction which values (as determined
in good faith by the Board of Directors) the Company, its assets
or its equity securities at $100,000,000 or more (exclusive of any
value attributable to the Homestore Common Stock owned by the
Company at the time of Change of Control), provided, however, that
in the event of such a Change of Control of the Company,
notwithstanding anything else in this Section 3, the Company shall
be required to apply 66.7% of the dollar value of the
consideration received by the Company in connection with such
Change of Control in excess of $100,000,000 to the Repayment,
until such time as the Advance is repaid in full with interest as
set forth in Section 2 hereof; and any remaining unpaid amount of
the Advance after giving effect to such Repayment shall continue
to be outstanding pursuant to the terms of this Agreement.
Schedule 3(ii), attached hereto, sets forth some examples as to
how this Section 3(ii) would be applied in certain hypothetical
situations.
(b) The Company shall make the Repayment within five (5)
business days of the date on which the Repayment becomes due pursuant to
subsection (a) above and shall make the Repayment by wire transfer of
immediately available funds to one or more accounts designated by CIG for
such purpose.
(c) For purposes of this Agreement:
"Change of Control" of the Company means the occurrence of
any of the following with respect to the Company: (i) there shall be
consummated (A) any consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation, or pursuant to
which shares of the Company's Common Stock would be converted in whole or
in part into cash, securities or other property, other than a consolidation
or merger of the Company in which the holders of the Company's Common Stock
immediately prior to the consolidation or merger own 70% or more of the
common stock of the surviving corporation immediately after such
consolidation or merger, (B) any consolidation or merger of the Company in
which the Company is the continuing or surviving corporation, other than
any such consolidation or merger in which the holders of the Company's
Common Stock immediately prior to the consolidation or merger, hold at
least 70% of the voting equity of the continuing or surviving corporation
immediately after such merger or consolidation or (C) any sale, lease,
exchange or transfer (in one transaction or a series of related
transactions) of 30% or more in value of the assets of the Company (based
on the fair market value of such assets at the time of sale), and other
than through the Put Right as that term is defined herein or (ii) any
Person (as defined below), other than the Company or a subsidiary thereof,
any employee benefit plan sponsored by the Company or a subsidiary thereof,
Cendant Corporation, a Delaware corporation (or any of its subsidiaries) or
the Hospitality Technology Trust shall become the beneficial owner (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of securities of the Company representing at least 30% of the
combined voting stock of the Company as a result of a tender or exchange
offer, open market purchases, privately negotiated purchases or otherwise..
"Person" means an individual or a corporation, association,
partnership, limited liability company, joint venture, business, trust or
any other entity or organization, including a government or any subdivision
or agency thereof.
4. Right to Call Homestore Common Stock. (a) At any time after the
date hereof, CIG shall have the right (the "Call Right"), but not the
obligation, to purchase in whole, or in part, any shares of Homestore
Common Stock owned by the Company (the "Call Shares"). CIG shall exercise
the Call Right by delivering written notice (the "Call Notice") to the
Company indicating the number of Call Shares it desires to purchase and the
date and time fixed for the consummation of such sale (the "Call Closing"),
which date shall not be more than ten business days following the date of
delivery of the Call Notice. The price per Call Share payable to the
Company pursuant to a valid exercise of the Call Right (the "Call Price Per
Share") shall equal the fair market value of such Homestore Common Stock
(based on the closing trading price per share of the Homestore Common Stock
on the day immediately prior to the date of exercise).
(b) At the Call Closing, the Company shall deliver to CIG
(or a subsidiary of CIG designated by CIG) the certificate representing the
Call Shares duly endorsed, free and clear of any liens, pledges, charges,
claims, security interests or other encumbrances ("Liens"), against
delivery of the Call Price Per Share for each of the Call Shares by wire
transfer to an account designated by the Company for such purpose or by
certified or bank check.
5. Right to Put Homestore Common Stock. (a) The Company shall only
dispose of the Homestore Common Stock as follows: At any time after
September 1, 2001, the Company shall have the right (the " Put Right"), but
not the obligation, to require CIG to purchase all, but not less than all,
the shares of Homestore Common Stock owned by the Company. The Put Right
shall be exercisable by the Company by delivering written notice (the " Put
Notice") to CIG indicating the Company's intent to exercise the Put Right.
The date and time fixed for the consummation of such sale (the " Put
Closing") shall be determined by CIG upon receipt of a Put Notice, which
date shall be not more than sixty days after the date of a Put Notice. The
price per share of Common Stock payable to the Company pursuant to a valid
exercise of the Put Right (the " Put Price Per Share") shall equal the fair
market value of such Homestore Common Stock (based on the closing trading
price per share of the Homestore Common Stock on the day immediately prior
to the date of exercise).
(b) The Company shall be bound at all times by the
provisions in that certain Stockholders Agreement by and between Homestore
and CIG dated as of October 26, 2001 (the "Homestore Stockholders
Agreement"), including, but not limited to, the following: Company shall
not, directly or indirectly, sell, transfer, pledge, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, transfer the economic
risk of ownership of, or otherwise dispose of (each, a "Transfer"), any
Voting Stock or Non-Voting Convertible Securities. Any attempted Transfer
not in compliance with Section 1.2 of the Homestore Stockholders Agreement
shall be null and void ab initio.
(c) At the Put Closing, the Company shall deliver to the
purchaser certificates representing the shares of Homestore Common Stock to
be so purchased duly endorsed, free and clear of any Liens, against
delivery of the Put Price Per Share for each of such shares of Homestore
Common Stock by wire transfer to an account designated by the Company for
such purpose or by certified or bank check.
6. Representations of the Company.
(a) The Company is aware of Homestore's business affairs and
financial condition and has acquired sufficient information about Homestore
to reach an informed and knowledgeable decision to acquire the shares of
Homestore Common Stock being advanced to it pursuant to this Agreement. The
Company is receiving the shares of Homestore Common Stock for investment
for its own account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the
Securities Act of 1933, as amended (the "Securities Act").
(b) The Company understands that the shares of Homestore
Common Stock being advanced to it pursuant to this Agreement have not been
registered under the Securities Act by reason of a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of its investment intent and other representations as expressed
herein.
(c) The Company further acknowledges and understands that
the shares of Homestore Common Stock being advanced to it pursuant to this
Agreement must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is
available. The Company understands that the certificate evidencing the
shares of Homestore Common Stock being advanced to it hereunder will be
imprinted with the legends referred to in Section 1(b) above which prohibit
the transfer of the securities unless they are registered or Homestore
receives an opinion of counsel, reasonably acceptable to it, to the effect
that such registration is not required.
(d) The Company, by reason of the Company's business or
financial experience has the capacity to protect its own interests in
connection with the receipt of the shares of Homestore Common Stock
constituting the stock portion of the Advance.
(e) The Company is aware of the adoption of Rule 144 by the
Securities and Exchange Commission (the "SEC"), promulgated under the
Securities Act, which permits limited public resale of securities acquired
in a non-public offering subject to the satisfaction of certain conditions
set forth therein, including, among other things, a one-year holding
period, the availability of certain public information about the issuer,
the requirement that the sale be effected through a "broker's transaction"
or in transactions directly with a "market maker" (as defined in Rule 144)
and the number of shares being sold in any three-month period not exceeding
specific limitations.
(f) The Company further acknowledges that in the event all
of the requirements of Rule 144 are not met, some other registration
exemption will be required; and that although Rule 144 is not exclusive,
the staff of the SEC has expressed its opinion that persons proposing to
sell private placement securities other than in a registered offering and
other than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such
offers or sales and that such persons and the brokers who participate in
the transactions do so at their own risk.
7. Agreement With Respect to Homestore Common Stock. The parties
agree that any repurchase by CIG or any of its affiliates of the Homestore
Common Stock being advanced to the Company pursuant to this Agreement shall
be for a price that is no less than the fair market value of such Homestore
Common Stock on the trading day immediately prior to such repurchase.
8. Governing Law. This Agreement shall be governed by, enforced
under and construed in accordance with the laws of the State of New York,
without giving effect to any choice or conflict of law provision or rule
thereof (other than Sections 5-1401 and 5-1402 of the New York General
Obligations Law).
9. Counterparts. This Agreement may be signed in counterparts and
all signed copies of this Agreement will together constitute one original
of this Agreement.
10. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by the Company
(whether by operation of law or otherwise) without the prior written
consent of CIG. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
11. Entire Agreement. This Agreement constitutes the entire
agreement of the parties relating to the subject matter hereof and
supersede all other prior agreements and understandings between the
parties, both oral and written, regarding such subject matter.
IN WITNESS WHEREOF, each of the undersigned has caused
this Agreement to be duly signed as of the date first above written.
CENDANT INTERNET GROUP, INC.
By: /s/ Samuel L. Katz
---------------------------------------
Name: Samuel L. Katz
Title: Chief Executive Officer
TRAVEL PORTAL, INC.
By: /s/ Jacob Stepan
---------------------------------------
Name: Jacob Stepan
Title: Chief Operating Officer
Exhibit 8
March 30, 2001
Homestore.com, Inc.
325 W. Hillcrest Drive, Suite 100
Thousand Oaks, CA 91360
Dear Sirs:
This is to confirm our mutual understanding that Cendant
Corporation is pursuing a transaction in which Cendant Corporation or a
wholly owned subsidiary of Cendant Corporation (together, "Cendant") will
transfer (i) up to $40 million in value on the date of transfer of common
stock, par value $.001 per share ("Travel Portal Stock"), of Homestore.com,
Inc. ("Homestore") from the amount of stock received in consideration for
Homestore's purchase of Move.com, Inc., to Travel Portal, Inc. ("Travel
Portal"), pursuant to a Development Agreement, dated as of March 30, 2001
(the "Development Agreement"), between Cendant and Travel Portal, the
relevant provisions of such agreement which is attached to this letter and
(ii) the Existing Shares to The Cendant Charitable Foundation (the
"Foundation"). Capitalized terms used herein and otherwise defined shall
have the respective meanings set forth in the Stockholder Agreement, dated
as of October 26, 2000 (the "Stockholder Agreement"), between Homestore and
Cendant.
Homestore hereby agrees that notwithstanding any provision to the
contrary in the Stockholder Agreement, or any other agreement between
Homestore and Cendant, (i) Cendant shall be permitted to cause the transfer
of the Travel Portal Stock to Travel Portal pursuant to the Development
Agreement and the Existing Shares to the Foundation, and (ii) Travel Portal
shall only dispose of the Travel Portal Stock through transfer of all or a
portion of such shares to Cendant in accordance with the Development
Agreement at the fair market value of such shares at the date of transfer.
Upon receipt of the shares of Travel Portal Stock or the Existing Shares,
Travel Portal or the Foundation, as the case may be, shall agree to be
bound by the provisions of the Stockholder Agreement with respect to such
shares so acquired to the same extent as if it were a party signatory
thereto. Without limiting the foregoing, the transfer of the shares shall
not result in an increase or decrease of the aggregate number of shares
subject to the transfer and volume limitations set forth in Section 1.2 of
the Stockholders Agreement.
Cendant hereby consents to the placement of the following legend
on the Travel Portal Stock and Foundation shares reflecting the foregoing
agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF SAID ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDER AGREEMENT (A COPY OF WHICH MAY BE OBTAINED UPON
WRITTEN REQUEST FROM THE ISSUER). TRANSFER AND VOTING OF THE
SHARES ARE RESTRICTED BY THE TERMS OF THE STOCKHOLDER AGREEMENT,
AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING
SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND
BY THE APPLICABLE PROVISIONS OF SAID STOCKHOLDER AGREEMENT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
THE TERMS AND CONDITIONS OF THE AGREEMENT BETWEEN CENDANT
CORPORATION AND HOMESTORE.COM, INC. DATED MARCH 30, 2001.
Cendant agrees that all of the terms and conditions of the Development
Agreement as they pertain specifically to the transfer of Travel Portal
Stock by the Travel Portal shall be in the form of Exhibit A hereto and any
remaining provisions pertaining to the Travel Portal Stock do not address
matters governed by the Stockholder Agreement.
Within one week of the date hereof, Cendant shall cause the Foundation to
deliver a letter to Homestore whereby the Foundation acknowledges and
confirms its agreement to the lockup period set forth in the Stockholder
Agreement.
Any the transfer of the Put Right or Call Right described in Exhibit A
below or any amendment to the Development Agreement or any other agreement
concerning the Travel Portal Stock in contravention of this agreement or
the Stockholder Agreement shall be subject to Homestore's prior written
approval.
The parties agree to not disclose the transfer contemplated hereunder or
the terms and conditions of this agreement to any third party, other than
its agents, representatives, advisors, consultants, investment bankers,
accountants and attorneys, unless otherwise required by applicable law,
rule or regulation. Neither party shall make any public statement or press
release or similar announcement regarding this transfer without the other
party's prior written approval.
CENDANT CORPORATION
By:/s/ Eric Bock
------------------------------
Name: Eric Bock
Title:
Acknowledged and Agreed:
HOMESTORE.COM, INC.
By:/s/ David Rosenblatt
-------------------------------
Name: David Rosenblatt
Title:
Exhibit A
1. Right to Put Homestore Common Stock.
(a) The Company shall only dispose of the Homestore Common Stock
as follows: At any time after January 31, 2002 Company shall have the right
(the "Put Right"), but not the obligation, to require Cendant to purchase
all, but not less than all, the shares of Homestore Common Stock owned by
the Company. The Put Right shall be exercisable by the Company by
delivering written notice (the "Put Notice") to Cendant indicating the
Company's intent to exercise the Put Right. The date and time fixed for the
consummation of such sale (the "Put Closing") shall be determined by
Cendant upon receipt of a Put Notice, which date shall be not more than
sixty days after the date of a Put Notice. The price per share of Common
Stock payable to the Company pursuant to a valid exercise of the Put Right
(the "Put Price Per Share") shall equal the fair market value of such
Homestore Common Stock (based on the closing trading price per share of the
Homestore Common Stock on the day immediately prior to the date of
exercise).
(b) The Company shall be bound by all times by the provisions in
that certain Stockholders Agreement by and between Homestore and Cendant
dated as of October 26, 2001, including, but not limited to, the following
restriction: Company shall not, directly or indirectly, sell, transfer,
pledge, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to
purchase, transfer the economic risk of ownership of, or otherwise dispose
of (each, a "Transfer"), any Voting Stock or Non-Voting Convertible
Securities. Any attempted Transfer not in compliance with this Section
shall be null and void ab initio.
(c) At the Put Closing, the Company shall deliver to the purchaser
certificates representing the shares of Homestore Common Stock to be so
purchased duly endorsed, free and clear of any Liens, against delivery of
the Put Price Per Share for each of such shares of Homestore Common Stock
by wire transfer to an account designated by the Company for such purpose
or by certified or bank check.
2. Right to Call Homestore Common Stock.
(a) At any time after the date hereof, Cendant shall have the
right (the "Call Right"), but not the obligation, to purchase in whole, or
in part, any shares of Homestore Common Stock owned by the Company (the
"Call Shares"). Cendant shall exercise the Call Right by delivering written
notice (the "Call Notice") to the Company indicating the number of Call
Shares it desires to purchase and the date and time fixed for the
consummation of such sale (the "Call Closing"), which date shall not be
more than sixty days following the date of delivery of the Call Notice. The
price per Call Share payable to the Company pursuant to a valid exercise of
the Call Right (the "Call Price Per Share") shall equal the fair market
value of such Homestore Common Stock (based on the closing trading price
per share of the Homestore Common Stock on the day immediately prior to the
date of exercise).
(b) At the Call Closing, the Company shall deliver to Cendant (or
a subsidiary of Cendant designated by Cendant) the certificate representing
the Call Shares duly endorsed, free and clear of any liens, pledges,
charges, claims, security interests or other encumbrances ("Liens"),
against delivery of the Call Price Per Share for each of the Call Shares by
wire transfer to an account designated by the Company for such purpose or
by certified or bank check.
3. Agreement with Respect to Homestore Common Stock
The parties agree that any repurchase by Cendant or any of its
affiliates of the Homestore Common Stock being advanced to the Company
pursuant to this Agreement shall be for a price that is no less than the
fair market value of such Homestore Common Stock on the trading day
immediately prior to such repurchase.