Exhibit 10.12
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of March 29, 2000 (this "Agreement")
between Cendant Corporation, a Delaware corporation (the "Company"), and Chatham
Street Holdings, LLC (the "Investor").
WHEREAS, the Investor desires to purchase from the Company, and the
Company desires to sell to the Investor an aggregate of 1,561,000 shares of a
tracking stock associated with the Company's real estate internet businesses
(the "Common Stock").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. PURCHASE OF SUBSCRIPTION SHARES. Upon the terms and subject to
conditions herein set forth, the Investor hereby subscribes for and agrees to
purchase, and the Company agrees to issue and sell, 1,561,000 shares of Common
Stock at a purchase price of $16.02 per share (the shares of Common Stock
subscribed for pursuant to this Agreement being collectively referred to herein
as the "Subscription Shares"). The total purchase price payable by the Investor
shall be paid in full in immediately available funds at the Closing (as defined
in Section 2 below).
2. CLOSING. (a) The closing (the "Closing") of the purchase
provided for in Section 1 shall take place as soon as practicable following the
satisfaction of the conditions set forth in Section 7 herein at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
The date and time of the Closing is referred to as the "Closing Date".
(b) At the Closing, the Company will deliver to the Investor
a certificate or certificates evidencing the number of Subscription Shares
purchased by the Investor, registered in the Investor's name and bearing legends
substantially in the form set forth in the Registration Rights Agreement
attached hereto as Exhibit A (the "Registration Rights Agreement"), against
delivery by the Investor to the Company of the purchase price provided for in
Section 1.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants that:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The authorized capital stock of Xxxx.xxx, Inc. consists
of (i) 37,000,000 shares of voting common stock, of which 22,500,000 shares were
issued and outstanding (all of which were held by Cendant) as of Xxxxx 0, 0000,
(xx) 12,500,000 shares of non-voting common stock, of which 48,750 shares of
were issued and outstanding as of March 6, 2000, and (iii) 5,000,000 shares of
preferred stock, none of which were outstand ing as of March 6, 2000. Except for
options to acquire 4,984,680 shares of Xxxx.xxx, Inc. common stock and except as
provided herein, as of March 6, 2000, there were no outstand ing options,
warrants, calls, rights, commitments, agreements of any kind to which the
Company is bound relating to the sale, issuance or voting of, or the granting of
rights to acquire, any shares of Common Stock. When the certificates evidencing
the Subscription Shares have been delivered against payment therefor as provided
in this Agreement, the Subscription Shares will be duly authorized, validly
issued, fully paid and non-assessable.
(c) The Company has the corporate power and authority to
execute, deliver and perform this Agreement and the Registration Rights
Agreement (together, the "Company Agreements") and to consummate the
transactions contemplated thereby. The execution, delivery and performance of
the Company Agreements and the consummation of the transactions contemplated
thereby have been duly authorized by all necessary corporate action on the part
of the Company. Each of the Company Agreements has been duly authorized,
executed and delivered by the Company and is a valid and binding obligation of
the Company, assuming the due execution and delivery by the other parties
thereto, enforceable against the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors rights generally.
(d) There are no actions, suits, claims or proceedings
pending or, to the knowledge of the Company, threatened against the Company
which seek to prevent the consummation of the transactions contemplated by the
Company Agreements.
(e) Neither the execution and delivery by the Company of the
Company Agreements nor the performance by the Company of any of its obligations
thereunder, nor the consummation of the transactions contemplated thereby, will
conflict with the Certificate of Incorporation or By-laws of the Company, or
conflict with or result in a breach or violation of, or constitute default under
any material agreement to which the Company or any of its subsidiaries is bound
or to which any of their property or assets may be subject, or any applicable
law, rule, regulation, judgment, order or decree of any government, governmental
instrumentality or agency or arbitrator or court having jurisdic tion over the
Company or its subsidiaries or any of their property or assets. No order,
license, consent, authorization or approval of, or exemption by, or notice to or
registration with any federal, state, municipal or other governmental agency is
necessary (except as otherwise set forth in the Company Agreements) to authorize
the execution, delivery and performance by the Company of the Company
Agreements.
2
(f) None of the Company or any affiliate of the Company or
any person acting on their behalf has (i) engaged, in connection with the
issuance of the Subscription Shares, in any form of general solicitation or
general advertising (as those terms are used within the meaning of Regulation D
under the Securities Act) or (ii) solicited offers for, or offered or sold, the
Subscription Shares by means of any form of general solicitation or general
advertising (as those terms are used within the meaning of Regulation D under
the Securities Act).
(g) The Company acknowledges the Investor is entering into
this Agreement in reliance upon the Company's representations and warranties
herein.
4. PURCHASE FOR INVESTMENT; OTHER REPRESENTATIONS AND WARRANTIES OF
THE INVESTOR. The Investor represents and warrants that:
(a) Each of the Company Agreements has been duly authorized,
executed and delivered by the Investor and is a valid and binding obligation of
the Investor, assuming the due execution and delivery by the other parties
thereto, enforceable against the Investor in accordance with its terms, except
as enforceability may be limited by bank ruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors rights generally.
(b) The Investor acknowledges its understanding that the
offering and sale of the Subscription Shares to be purchased pursuant hereto by
such Investor are intended to be exempt from registration under the Securities
Act of 1933, as amended (the "Securities Act"). In furtherance thereof, the
Investor represents and warrants to the Company that:
(i) The Investor is an accredited investor within
the meaning of Regulation D promulgated under the Securities Act
("Regulation D") and, if there should be any change in such status prior
to the Closing Date, the Investor will immediately inform the Company of
such change;
(ii) The Investor: (A) has the financial ability to
bear the economic risk of its investment in the Subscription Shares to
be purchased pursuant hereto, (B) can bear a total loss of its
investment therein at this time, (C) has no need for liquidity with
respect to its investment therein, (D) has adequate means for providing
for its current needs and contingencies; and (E) has such knowledge,
experience and skill in evaluat ing and investing in issues of equity
securities, including securities of new and speculative issuers, based
on actual participation in financial, invest ment and business matters,
such that it is capable of evaluating the merits and risks of an
investment in the Company and the suitability of the Subscription
Shares as an investment for itself; and
3
(iii) The Investor has been given the opportunity to
conduct a due diligence review of the Company concerning the terms and
conditions of the offering of the Subscription Shares to be purchased by
the Investor and other matters pertaining to an investment in the
Subscription Shares, in order for the Investor to evaluate the merits
and risks of an investment in the Subscription Shares to be purchased
by the Investor to the extent the Company possesses such information or
can acquire it without unreasonable effort or expense; it being
understood, however, that the Investor's performance of due diligence
will not preclude the Investor from asserting claims that the Investor
may have against the Company in respect of its reliance upon statements
made by the Company in its filings with the Securities and Exchange
Commission.
(c) The Investor has been advised that the Subscription
Shares have not been registered under the Securities Act, or any state
securities or blue sky laws, and therefore cannot be resold unless they are
registered under such laws or unless an exemption from registration thereunder
is available. The Investor is purchasing the Subscription Shares for its own
account for investment, and not with a view to, or for resale in connection
with, the distribution thereof, and has no present intention of distributing or
reselling any thereof. In making the foregoing representations, the Investor is
aware that it must bear, and represents that the Investor is able to bear, the
economic risk of such investment for an indefinite period of time.
(d) The Investor is aware of and familiar with the
restrictions imposed on the transfer of any Subscription Shares, including,
without limitation, the restrictions contained in the Registration Rights
Agreement, and the rights of the Company under the Registration Rights Agreement
in connection with transfers of shares of Common Stock.
(e) The Investor acknowledges that the Company is entering
into this Agreement in reliance upon the Investor's representations and
warranties herein.
5. DELIVERY OF LEGAL OPINION. The Company agrees to use reasonable
efforts to cause to be delivered to the Investor on the Closing Date an opinion
of counsel to the Company covering the matters set forth in Exhibit A hereto.
6. CONDITIONS TO OBLIGATIONS OF THE INVESTORS. The Investor's
obligations hereunder are subject to the fulfillment, prior to or at the
Closing Date, of the following condition, unless waived in writing by the
Investor:
(a) The representations and warranties made by the Company
in Section 3 shall be true and correct in all material respects at and as of the
Closing Date.
4
(b) The Company shall have entered into the Registration
Rights Agreement.
(c) The Investor shall have received an opinion of counsel
to the Company covering the matters set forth in Exhibit A hereto.
7. CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's
obligations hereunder are subject to the fulfillment, prior to or at the Closing
Date, unless waived in writing by the Company, of each of the following
conditions:
(a) The representations and warranties made by each of the
Investors in Section 4 shall be true and correct in all material respects at and
as of the Closing Date.
(b) The Company shall have entered into the Registration
Rights Agreement.
8. CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective
obligations of each of the parties hereunder are subject to the fulfillment,
prior to or at the Closing Date, unless waived in writing by each of the other
parties hereto, of the following conditions:
(a) No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction
preventing consum mation of the transactions contemplated hereby shall be in
effect.
(b) Any applicable waiting period (and any extension
thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "Xxxx-Xxxxx-Xxxxxx Act"), relating to the transactions
contemplated by this Agreement shall have been terminated or shall have expired.
(c) The Subscription Shares shall have been approved for
listing, subject to notice of issuance, on the principal securities exchange, if
any, on which the Common Stock is then listed.
9. TRANSFERS. (a) Except as otherwise permitted by this Section 9,
each certificate or other instrument evidencing any Subscription Shares
(including each such certificate or other instrument issued upon the transfer of
any Subscription Shares) shall be stamped or otherwise imprinted with a legend
in substantially the following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be transferred
in the absence of such registration or an exemption therefrom under such
Act."
5
The shares represented by this certificate may be transferred only in
compliance with the conditions specified in the Subscription Agreement,
dated as of March 29, 2000, between Cendant Corporation and the investor
named therein, a counterpart of which has been placed on file with the
issuer at its principal place of business."
(b) Prior to any transfer of any shares of Common Stock
which are not registered under an effective registration statement under the
Securities Act ("Restricted Securities"), the holder thereof will give written
notice to the Company of such holder's intention to effect such transfer and to
comply in all other respects with this Section 9(b). Each such notice (i) shall
describe the manner and circumstances of the proposed transfer in sufficient
detail to enable counsel to render the opinions referred to below, and (ii)
shall designate counsel for the holder giving such notice (who may be in house
counsel for such holder). The holder giving such notice will submit a copy
thereof to the counsel designated in such notice and the Company will promptly
submit a copy thereof to its counsel. The following provisions shall then apply:
(x) If (A) in the opinion of such counsel for the holder the
proposed transfer may be effected without registration of such
Restricted Securities under the Securities Act, and (B) counsel for
the Company shall not have rendered an opinion within 15 days
after the receipt by the Company of such written notice that
such registration is required, such holder shall thereupon be
entitled to transfer such Restricted Securities in accordance
with the terms of the notice delivered by such holder to the
Company. Each certificate, if any, issued upon or in connection
with such transfer shall bear the appropriate restrictive legend
set forth in Section 9(a), unless in the opinion of counsel to
the holder such legend is no longer required to insure
compliance with the Securities Act.
(y) If in the opinion of either or both of such counsel the
proposed transfer may not legally be effected without
registration of such Restricted Securities under the Securities
Act (such opinion or opinions to state the basis of the legal
conclusions reached therein), the Company will promptly so
notify the holder thereof and thereafter such holder shall not
be entitled to transfer such Restricted Securities until receipt
of a further notice from the Company under clause (x) above or
until registration of such Restricted Securities under the
Securities Act has become effective.
Notwithstanding anything herein to the contrary, no transfer of shares
of Common Stock by the Investor (other than transfers which are
registered pursuant to an effective registration statement under the
Securities Act or sold in brokers' transactions exempt from registration
pursuant to Rule 144 under the Securities Act) shall be made to a person
who is, or is an affiliate of, a direct competitor of any of the
businesses conducted by Xxxx.xxx, Inc. For
6
purposes of this Agreement, the term "affiliate" shall mean any person
that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with the person
specified; provided that the ownership of less than five percent of any
class of outstanding equity securities of a company shall not, without
more, give rise to affiliate status.
(c) Any purported transfer of shares of Common Stock without
compliance with the applicable provisions of this Agreement shall be void and of
no effect, and the Company shall not transfer any such shares of Common Stock on
its books or recognize the purported transferee as a stockholder of the Company
for any purpose, until the applicable provisions of this Agreement have been
complied with.
10. EXPENSES. All reasonable costs and reasonable expenses incurred
by Apollo, including the reasonable fees and reasonable expenses of one counsel
to Apollo, in connection with this Agreement and the transactions contemplated
hereby shall be borne by the Company; provided that in no event shall the
Company's obligation pursuant to this Section 10 extend to expenses in excess of
the amount of any required Xxxx-Xxxxx-Xxxxxx Act filing fee plus $25,000.
11. SURVIVAL; SUCCESSORS AND ASSIGNS. All agreements,
representations and warranties made herein and in the certificates delivered
pursuant hereto shall survive the execution and delivery of this Agreement, the
delivery to the Investor of the Subscription Shares to be purchased pursuant
hereto and the payment therefor and, notwithstanding any investigation
heretofore and hereafter made by or on behalf of a party hereto, shall continue
in full force and effect. The rights and obligations of the Investor under this
Agreement shall not be assignable by such Investor without the prior written
consent of the Company, provided that any Investor may assign this Agreement to
the same extent and in the same manner as such Investor may transfer
Subscription Shares in accordance with the Registra tion Rights Agreement.
Nothing herein expressed or implied is intended to confer upon any person, other
than the parties hereto or their respective permitted assignees, successors,
heirs and legal representatives, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
12. AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement of
the Company and the Investor.
13. WAIVER OF COMPLIANCE; CONSENTS. The failure of any of the
parties to comply with any obligation, covenant, agreement or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver. Any such waiver or failure
to insist upon strict compliance with such
7
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
14. NOTICES. Any notice, request or other document to be given
hereun der to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex, telecopy or
certified or registered mail, postage prepaid addressed to:
If to the Company, addressed to:
Cendant Corporation
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx
If to the Investor, addressed to:
Apollo Advisors II, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
X'Xxxxxxxx, Graev & Karabell
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxxxx
Xxxx Xxxxx
or to such other address as any party shall have specified by written notice
given to the other parties in the manner specified above.
15. ENTIRE AGREEMENT. This Agreement, and the other agreements
referred to herein or expressly contemplated hereby, embody the entire agreement
and understanding between the Investor and the Company with respect to the
purchase of Subscription Shares by the Investor and supersede all prior oral or
written agreements,
8
memoranda, understandings and undertakings among the parties hereto relating to
the subject matter hereof.
16. CONSTRUCTION. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to the
principles of conflicts of laws thereof other than Sections 5-1401 and 5-1402 of
the New York General Obligations Law. The section headings contained in this
Agreement are for reference purposes and shall not affect in any way the meaning
or interpretation of this Agreement. Each party irrevocably consents to the
service of any and all process in any action or proceeding arising out of or
relating to this Agreement by the mailing of copies of such process to each
party at its address specified herein. The parties hereto irrevocably submit to
the non-exclusive jurisdiction of any court of competent jurisdiction in the
State of New York or of the United States of America for the Southern District
of New York over any dispute arising out of or relating to this Agreement or any
agreement or instrument contem plated hereby or entered into in connection
herewith or any of the transactions contemplated hereby or thereby. Each party
hereby irrevocably agrees that all claims in respect of such dispute or
proceeding may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of venue of any
such dispute brought in such court or any defense of inconvenient forum in
connection therewith.
17. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
9
IN WITNESS HEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
CENDANT CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: SVP
INVESTOR:
CHATHAM STREET HOLDINGS, LLC
By: /s/ Xxxxxxx X. Weinir
------------------------------------
Name: Xxxxxxx X. Weinir
Title: Vice President
10
