EXHIBIT 7E
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of December 15, 1999 (this "Agreement"), by
and between Cendant Corporation, a Delaware corporation ("Cendant"), and the
Xxxx X. Xxxxxx Charitable Remainder Unitrust, a trust formed under the laws of
Colorado (the "Trust"), with Xxxx X. Xxxxxx acting as trustee (the "Trustee").
WHEREAS, the Trust desires to purchase from Cendant, and Cendant desires to
sell to the Trust, 1,000,000 shares (the "Shares") of the common stock, par
value $.01 per share, of Cendant (the "Common Stock").
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE 1
THE PURCHASE
Section 1.1 Purchase and Sale. Upon the terms and subject to the
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conditions of this Agreement, at the Closing (as hereinafter defined), Cendant
will issue to the Trust, and the Trust will purchase from Cendant the Shares in
consideration for which, at the Closing, the Trust will pay to Cendant an amount
equal to $16,687,500 in cash (the "Purchase Price"), payable by wire transfer of
immediately available funds to an account or accounts designated by Cendant in
writing for such purpose prior to the Closing.
Section 1.2 Time and Place of Closing. Upon the terms and subject to
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the conditions of this Agreement, the closing of the transactions contemplated
by this Agreement (the "Closing") will take place at the offices of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
9:00 a.m. (New York City time) on the third business day following the
satisfaction or waiver of the conditions set forth in Article V, unless another
time or date is agreed to by the parties hereto (the "Closing Date").
Section 1.3 Deliveries by Cendant. Subject to the terms and conditions
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hereof, at the Closing, Cendant will deliver the following to the Trust:
(a) A certificate or certificates, duly registered on the stock
books of Cendant in the name of the Trust, representing the Shares; and
(b) The officer's certificate provided for in Section 5.3(c).
Section 1.4 Deliveries by the Trust. Subject to the terms and
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conditions hereof, at the Closing, the Trust will deliver the following to
Cendant:
(a) The Purchase Price, in immediately available funds, in the
manner set forth in Section 1.1 hereof; and
(b) The officer's certificate provided for in Section 5.2(c).
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF CENDANT
Section 2.1 Organization. Cendant is a corporation duly incorporated,
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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.
Section 2.2 Authority. Cendant has the corporate power and authority
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to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all requisite corporate action on the part of Cendant. This
Agreement has been validly executed and delivered by Cendant and (assuming this
Agreement has been duly authorized, executed and delivered by the Trust)
constitutes a valid and binding agreement of Cendant, enforceable against
Cendant in accordance with its terms, except that (a) such enforcement may be
subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other laws, now or hereafter in effect, relating to or limiting
creditors' rights generally and (b) enforcement of this Agreement, including,
among other things, the remedy of specific performance and injunctive and other
forms of equitable relief, may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
Section 2.3 The Shares. The Shares have been duly and validly
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authorized and, when a certificate evidencing the Shares is issued and delivered
against payment of the Purchase Price in accordance with the terms of this
Agreement, the Shares shall be duly and validly issued, fully paid and non-
assessable. Delivery of the certificate(s) for the Shares will pass valid title
to the Shares, free and clear of any claim, lien, charge, security interest,
encumbrance, restriction on transfer or voting or other defect in title
whatsoever ("Liens"), other than Liens resulting from any action(s) relating to
the Trust. As of the Closing, the sale of the Shares to the Trust will be
registered under an effective shelf registration statement filed by Cendant with
the Securities and Exchange Commission (the "SEC").
Section 2.4 Capitalization. The authorized capital of Cendant consists
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of 2,000,000,000 shares of Common Stock and 10,000,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock"). As of October 26, 1999,
there were 711,025,187 shares of Common Stock issued and outstanding and no
shares of Preferred Stock issued and outstanding.
Section 2.5 Consents and Approvals; No Violations. Neither the
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execution and delivery of this Agreement by Cendant, nor the consummation by
Cendant of the transactions contemplated hereby or thereby will (a) conflict
with or result in any breach of any provision of the amended and restated
certificate of incorporation (the "Cendant Charter") or amended and restated by-
laws of Cendant, (b) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, or require any
consent under, any indenture, license, contract, agreement or other instrument
or obligation to which the Cendant is a party, (c) violate any order, writ,
injunction, decree or award rendered by any Governmental Entity (as hereinafter
defined) or any statute, rule or regulation (collectively, "Laws" and,
individually, a "Law") applicable to Cendant, or (d) require any filing with, or
the obtaining of any permit, authorization, consent or approval of, any
governmental or regulatory authority or court, domestic or foreign (a
"Governmental Entity"), except in the case of clauses (c) and (d) of this
Section 2.5, for the applicable requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act").
Section 2.6 SEC Reports. Since January 1, 1999, Cendant has filed all
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required reports, schedules, forms, statements and other documents, including
exhibits and all other information incorporated therein (the "SEC Documents"),
with
the SEC. As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, as the case may be,
and the rules and regulations of the SEC promulgated thereunder applicable to
such SEC Documents, and none of the SEC Documents when filed (as amended and
restated and as supplemented by subsequently filed 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.
Section 2.7 Shareholder Vote. The delivery and sale of the Shares will
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not require any vote of Cendant's shareholders pursuant to the terms of the
Cendant Charter or the rules of the New York Stock Exchange (the "NYSE").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF the Trust
Section 3.1 Formation; Authority Relative to this Agreement. The Trust
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is duly formed, validly existing and in good standing under the laws of the
State of Colorado. The Trustee has the requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby on behalf of the Trust. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all requisite action on the part of the Trust. This
Agreement has been duly and validly executed and delivered by the Trustee on
behalf of the Trust and (assuming this Agreement has been duly authorized,
executed and delivered by Cendant) constitutes a valid and binding agreement of
the Trust, enforceable against the Trust in accordance with its terms, except
that (a) such enforcement may be subject to any bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other laws, now or hereafter
in effect, relating to or limiting creditors' rights generally and (b)
enforcement of this Agreement, including, among other things, the remedy of
specific performance and injunctive and other forms of equitable relief, may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
Section 3.2 Consents and Approvals; No Violations. Neither the
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execution and delivery of this Agreement by the Trust, nor the consummation by
the Trust of the transactions contemplated hereby will (a) conflict with or
result in any breach of any provision of the organizational documents of the
Trust, (b) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, or require any consent under, any indenture, license,
contract, agreement or other instrument or obligation to which the Trust is a
party, (c) violate any order, writ, injunction, decree or award rendered by any
Governmental Entity or Law applicable to the Trust, or (d) require any filing
with, or the obtaining of any permit, authorization, consent or approval of, any
Governmental Entity, except in the case of clauses (c) and (d) of this Section
3.3, for the applicable requirements of the HSR Act.
Section 3.3 Trust Acknowledgment. The Trust has conducted its own
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independent investigation, review and analysis of Cendant. In entering into this
Agreement, the Trust acknowledges that it has relied solely upon the
aforementioned investigation, review and analysis, and, other than with respect
to the representations and warranties made in Article II of this Agreement, the
Trust acknowledges that none of Cendant, or any of its directors, officers,
employees, affiliates, controlling persons, agents, advisors or representatives
makes or has made any representation or warranty, either express or implied.
ARTICLE 4
COVENANTS
Section 4.1 Consents; Cooperation. Each of Cendant and the Trust shall
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cooperate, and use its best efforts, to prepare and file all necessary materials
with the appropriate Governmental Entities pursuant to the HSR Act within five
business days of the date of this Agreement. Each party covenants to (x) furnish
the other party with such necessary or appropriate information and reasonable
assistance as such other party may reasonably request in connection with its
preparation of necessary filings and submission pursuant to the HSR Act and (y)
use its commercially reasonable efforts to comply as promptly as possible with
requests for additional information issued by applicable Governmental Entities
pursuant to the HSR Act.
Section 4.2 Public Announcements. Prior to the Closing, except as
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otherwise agreed to by the parties, the parties shall not 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 judgment of a 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. Upon execution hereof and upon the Closing, Cendant
and the Trust will consult with each other with respect to the issuance of a
joint report, statement or press release with respect to this Agreement and the
transactions contemplated hereby.
ARTICLE 5
CONDITIONS AND TERMINATION
Section 5.1 Conditions to Each Party's Obligations to Consummate the
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Transactions Under this Agreement. The respective obligations of each party to
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consummate the transactions contemplated hereby is subject to the satisfaction
at or prior to the Closing of the following conditions:
(a) Any waiting periods applicable to the transactions
contemplated by this Agreement under the HSR Act shall have expired or been
terminated; and
(b) Neither Cendant nor the Trust shall be subject to any order,
decree or injunction of a court of competent jurisdiction, and no statute, rule
or regulation shall have been enacted, promulgated or issued, which enjoins or
prohibits the consummation of any of the transactions contemplated by this
Agreement.
Section 5.2 Conditions to Cendant's Obligations to Consummate the
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Transactions Under this Agreement. The obligation of Cendant to consummate
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the transactions contemplated hereby are further subject to the satisfaction or
waiver of the following conditions:
(a) The representations and warranties of the Trust contained in
this Agreement shall be true and correct at and as of the Closing Date in all
material respects as though such representations and warranties were made at and
as of such date (except to the extent expressly made as of an earlier date, in
which case, as of such date).
(b) The Trust shall have performed and complied in all material
respects with all agreements and obligations required by this Agreement to be
performed or complied with by it on or prior to the Closing; and
(c) The Trustee shall have delivered to Cendant on behalf
of the Trust a certificate to the effect that each of the conditions specified
above in Sections 5.2(a) and (b) is satisfied.
Section 5.3 Conditions to the Trust's Obligations to Consummate the
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Transactions Under this Agreement. The obligation of the Trust to consumate
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the transactions contemplated hereby are further subject to satisfaction or
waiver of the following conditions:
(a) The representations and warranties of Cendant contained in
this Agreement shall be true and correct at and as of the Closing Date in all
material respects as though such representations and warranties were made at and
as of such date (except to the extent expressly made as of an earlier date, in
which case, as of such date);
(b) Cendant shall have performed and complied in all material
respects with all agreements and obligations required by this Agreement to be
performed or complied with by it on or prior to the Closing;
(c) Cendant shall have delivered to the Trust an officer's
certificate to the effect that each of the conditions specified above in
Sections 5.3(a) and (b) is satisfied;
(d) The Shares shall have been approved for listing on the NYSE,
subject only to official notice of issuance;
(e) The sale of the Shares to the Trust shall have been
registered under an effective shelf registration statement filed by Cendant with
the SEC; and
(f) All of the conditions in Section 5.3 of the Purchase
Agreement, dated as of December 16, 1999, by and between Cendant and Liberty
Media Corporation, shall have been satisfied or waived.
ARTICLE 6
TERMINATION
Section 6.1 Termination. This Agreement may be terminated and the
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transactions contemplated hereby may be abandoned at any time prior to the
Closing Date:
(a) by mutual agreement of the parties; or
(b) by Cendant or the Trust at any time after 60 days from the
date of this Agreement if the Closing shall not have occurred by such date;
provided, however, that the right to terminate this Agreement under this Section
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6.1(b) shall not be available to a party, if it has breached any of its
representations, warranties or covenants hereunder in any material respect and
such breach has been the cause of or resulted in the failure of the Closing to
occur on or before such date.
Section 6.2 Procedure for and Effect of Termination. In the event of
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termination of this Agreement and the abandonment of the transactions
contemplated hereby by the parties pursuant to Section 6.1 hereof, written
notice thereof shall be given by a party so terminating to the other party and
this Agreement shall forthwith terminate and shall become null and void and of
no further effect, and the transactions contemplated hereby shall be abandoned
without further action by Cendant or the Trust. If this Agreement is terminated
pursuant to Section 6.1 hereof:
(a) all filings, applications and other submissions made
pursuant hereto shall, to the extent practicable, be withdrawn from the
Governmental Entity to which made; and
(b) there shall be no liability or obligation hereunder on the
part of Cendant or the Trust or any of their respective directors, officers,
employees, affiliates, controlling persons, agents or representatives, except
that Cendant or the Trust, as the case may be, may have liability to the other
party if the basis of termination is a breach by Cendant or the Trust, as the
case may be, of one or more of the provisions of this Agreement, and except that
the obligations provided for in this Section 6.2 shall survive any such
termination.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Entire Agreement. This Agreement constitutes the entire
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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.
Section 7.2 Severability. Any provision of this Agreement that is held
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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.
Section 7.3 Notices. Any notice required or permitted by this Agreement
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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
8.3. Any such notice will be effective as of the date of receipt:
(a) if to Cendant, to
Cendant Corporation
0 Xxxx 00/xx/ Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000/23
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxx, Esq.
(b) if to the Trust, to
Xxxx X. Xxxxxx Charitable Trust
c/o Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Fax: (000) 000-0000
Attention: General Counsel
Section 7.4 Governing Law; Jurisdiction. This Agreement shall be
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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 7.3 (or to such
other address for notice that such party has given the other party written
notice of in accordance with Section 7.3) 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.
Section 7.5 Descriptive Headings. The descriptive headings herein are
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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.
Section 7.6 Counterparts. This Agreement may be signed in counterparts
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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.
Section 7.7 Assignment. Neither this Agreement nor any of the rights,
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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 assigns.
Section 7.8 Definition of "Shares." As used in this Agreement, the
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term "Shares" includes (a) all dividends (other than ordinary cash dividends
with a record date prior to the Closing) and distributions declared by Cendant
on the Shares subsequent to the date hereof and prior to the Closing and (b)
shall be appropriately adjusted to give effect to any subdivision, combination
or reclassification of the Shares effected prior to the Closing.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly signed as of the date first above written.
CENDANT CORPORATION
By: /s/
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Name:
Title:
XXXX X. XXXXXX CHARITABLE
REMAINDER UNITRUST
By: /s/
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Name: Xxxx X. Xxxxxx
Title: Trustee
