EXHIBIT 7(F)
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of November 16, 2000 (this "Agreement"),
by and among Cendant Corporation, a Delaware corporation ("Cendant"), Cendant
Stock Corporation, a Delaware corporation and a wholly owned subsidiary of
Cendant ("Seller") and Liberty CNDT, Inc., a Delaware corporation ("Liberty
CNDT").
WHEREAS, Liberty CNDT desires to purchase from Seller, and Seller
desires to sell to Liberty CNDT, 2,346,515 shares (the "Shares") of the common
stock, par value $.01 per share, of Cendant designated CD common stock (the
"Common Stock"), in exchange for the surrender of a Warrant, issued by Cendant
to Liberty CNDT on February 7, 2000 and providing for the purchase of 28,956,000
shares of Common Stock at an exercise price of $23.00 per share (the "Warrant");
and
WHEREAS, Cendant has agreed, in consideration of the purchase of the
Shares by Liberty CNDT from Seller, which is a wholly owned subsidiary of
Cendant, to prepare and file with the Securities and Exchange Commission (the
"Commission"), and cause to become effective, a Registration Statement on Form
S-3 that permits the resale of the Shares by Liberty CNDT or its transferee in
the public market.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
THE PURCHASE
Section 1.1 Purchase and Sale. Upon the terms and subject to the
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conditions of this Agreement, on the date hereof Seller is selling and
delivering to Liberty CNDT, and Liberty CNDT is purchasing from Seller, the
Shares, in consideration for which Liberty CNDT is delivering the Warrant to
Seller.
Section 1.2 Deliveries by the Parties. Subject to the terms and
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conditions hereof, Seller is delivering to Liberty CNDT a certificate, duly
registered on the stock books of Cendant, in the name of "Liberty CNDT, Inc.,"
representing the Shares, against receipt from Liberty CNDT of the Warrant.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER AND CENDANT
Seller and Cendant represent and warrant to Liberty CNDT as follows:
Section 2.1 Organization. Each of Seller and Cendant is a
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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.
Section 2.2 Authority. Each of Seller and Cendant has the corporate
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power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by the Board of Directors of each
of Seller and Cendant and by all other requisite corporate action on the part of
each of Seller and Cendant. This Agreement has been validly executed and
delivered by each of Seller and Cendant and (assuming this Agreement has been
duly authorized, executed and delivered by Liberty CNDT) constitutes a valid and
binding agreement of each of Seller and Cendant, enforceable against Seller and
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 issued to Seller and, upon delivery to Liberty CNDT (or its
permitted assignee) against the delivery and surrender of the Warrant, 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 Liberty CNDT.
Section 2.4 Capitalization. The authorized capital of Cendant
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consists of 2,500,000,000 shares of Common Stock comprised of 2,000,000,000
shares designated as CD stock, 500,000,000 shares designated as Xxxx.xxx stock
and 10,000,000 shares of preferred stock, par value $.01 per share (the
"Preferred Stock"). As of October 31, 2000, there were 782,958,489 shares of
Common Stock issued and outstanding, 3,742,286 shares of Xxxx.xxx stock issued
and outstanding (excluding Cendant's 22,500,000 notional interest) 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 Seller or Cendant, nor the
consummation by Seller or Cendant of the transactions contemplated hereby or
thereby will (a) conflict with or result in any breach of any provision of the
certificate of incorporation or by-laws, as amended, of Seller or 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 Seller or 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 Seller or 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").
Section 2.6 SEC Reports. Since January 1, 2000, Cendant has filed
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all required reports, schedules, forms, statements and other documents,
including exhibits and all other information incorporated therein (the "SEC
Documents"), with the Commission. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, as the case may be, and the rules and
regulations of the Commission 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. At the time the
Cendant Registration Statement (as defined in Annex A) is declared effective
under the Securities Act, the prospectus included as part thereof will not
contain any untrue statement of a material fact or omit 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; provided, however, that no representation or warranty is made herein
with respect to any information included in or omitted from the Cendant
Registration Statement or the related prospectus in reliance upon or in
conformity with written information furnished to Cendant by Liberty CNDT or any
other Holder (as defined in Annex A) for use in the preparation of the Cendant
Registration Statement.
Section 2.7 Shareholder Vote. The delivery and sale of the Shares
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will not require any vote of Cendant's shareholders pursuant to the terms of the
certificate of incorporation, as amended, of Cendant or the rules of the New
York Stock Exchange (the "NYSE").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LIBERTY CNDT
Liberty CNDT represents and warrants to Seller and Cendant as follows:
Section 3.1 Organization. Liberty CNDT is a corporation duly
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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. Liberty CNDT is a wholly
owned subsidiary of Liberty Media Corporation, a Delaware corporation
("Liberty").
Section 3.2 Authority Relative to this Agreement. Liberty CNDT has
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the corporate power and authority 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 Liberty CNDT. This Agreement has been duly and validly executed and delivered
by Liberty CNDT and (assuming this Agreement has been duly
authorized, executed and delivered by Seller and Cendant) constitutes a valid
and binding agreement of Liberty CNDT, enforceable against Liberty CNDT 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 3.3 Consents and Approvals; No Violations. Neither the
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execution and delivery of this Agreement by Liberty CNDT, nor the consummation
by Liberty CNDT of the transactions contemplated hereby will (a) conflict with
or result in any breach of any provision of the certificate of incorporation or
by-laws (or similar organizational documents) of Liberty CNDT, (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 Liberty CNDT
is a party, (c) violate any order, writ, injunction, decree or award rendered by
any Governmental Entity or Law applicable to Liberty CNDT, or (d) require any
filing with, or the obtaining of any permit, authorization, consent or approval
of, any Governmental Entity.
Section 3.4 Liberty CNDT Acknowledgment. Liberty CNDT has conducted
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its own independent investigation, review and analysis of Cendant. In entering
into this Agreement, Liberty CNDT 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, Liberty CNDT 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 IV
COVENANTS
Section 4.1 Preparation and Filing of Registration Statement.
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Subject to the terms and conditions of Annex A hereto, Cendant shall, as
promptly as practicable after the date hereof, prepare and file the Cendant
Registration Statement with the Commission and use its commercially reasonable
securities efforts to cause the Cendant Registration Statement to become and
remain effective under the Securities Act. The rights and obligations of the
parties with respect to the registration and resale of the Shares are as set
forth in Annex A hereto, which is hereby incorporated into this Agreement by
reference thereto.
Section 4.2 Public Announcements. Cendant and Liberty CNDT will
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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.
Section 4.3 Retention of Warrant. Seller shall retain sole
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possession of the Warrant during the period commencing with its receipt thereof
pursuant to the Agreement and
ending with the Expiration Date (as such term is defined in the Warrant), and
during such period Seller shall not cancel or otherwise terminate the Warrant
(other than in connection with the exercise thereof by Seller).
ARTICLE V
MISCELLANEOUS
Section 5.1 Entire Agreement. This Agreement (including Annex A
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hereto, which is incorporated by reference herein) constitutes the entire
agreement of the parties relating to the subject matter hereof and supersedes
other prior agreements and understandings among the parties both oral and
written regarding such subject matter.
Section 5.2 Severability. Any provision of this Agreement that is
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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.
Section 5.3 Notices. Any notice required or permitted by this
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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 8.3. Any such notice will be effective as of the date of receipt:
(a) if to Seller or Cendant, to it at
Candant Corporation
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000/23
Attention: General Counsel
(b) if to Liberty CNDT (or its transferee), to it at
c/o Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Fax: (000) 000-0000
Attention: General Counsel
Section 5.4 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 5.5 Descriptive Headings. The descriptive headings herein
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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.
Section 5.6 Counterparts. This Agreement may be signed in counter-
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parts 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 5.7 Assignment. Neither this Agreement nor any of the
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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, except that Liberty CNDT may transfer the
Shares (or any portion thereof) to another direct or indirect wholly owned
subsidiary of Liberty. 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.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly signed as of the date first above written.
CENDANT STOCK CORPORATION
By: ___________________________________
Name:
Title:
CENDANT CORPORATION
By: ___________________________________
Name:
Title:
LIBERTY CNDT, INC.
By: __________________________________
Name:
Title:
