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 Xxxx.xxx 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 Xxxxxxxxx.xxx, 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 Xxxxxxx Xxxxx & 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, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, 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
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxx
Senior Vice President, Legal
(ii) if to Seller or LDIG, to:
Liberty Digital Inc.
00000 X. Xxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Exec. Vice President and Chief Financial Officer
with a copy (which shall not constitute effective notice) to:
Xxxxx Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxxx X. XxXxxxx
(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/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
LDIG MOVE, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title:
CENDANT CORPORATION
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President, Legal
CENDANT MEMBERSHIP SERVICES
HOLDINGS, INC.
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title:
