Exhibit 10.9
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of March 28, 2000 (this
"Agreement"), by and between Cendant Corporation, a Delaware corporation
("Cendant"), and NRT Incorporated. a Delaware corporation ("NRT").
WHEREAS, Cendant has created a network of websites which offer
a wide selection of quality relocation, real estate and home-related products
and services primarily through a new internet portal at XXX.XXXX.XXX (the
"Xxxx.xxx Group");
WHEREAS, the shareholders of Cendant have approved a proposal
to create a new series of Cendant common stock, par value $.01 per share,
intended to track the performance of Xxxx.xxx Group (the "Xxxx.xxx Stock"); and
WHEREAS, NRT desires to purchase from Cendant, and Cendant
desires to sell to NRT, 319,591 shares (the "Shares") of Xxxx.xxx Stock.
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
conditions of this Agreement, at the Closing (as hereinafter defined), Cendant
will issue to NRT, and NRT will purchase from Cendant, the Shares, in
consideration for which, at the Closing, NRT will pay to Cendant an amount equal
to ten million dollars ($10,000,000) in cash (the "Cash Consideration"). Upon
the Closing, NRT shall pay the Cash Consideration to Cendant by wire transfer of
immediately available funds to an account or accounts designated by Cendant in
writing for such purpose prior to the Closing and delivery of Shares.
Section 1.2 TIME AND PLACE OF CLOSING. Upon the terms and subject to
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, 0 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
hereof, at the Closing, Cendant will deliver the following to NRT:
(a) A certificate or certificates, duly registered on the
stock books of Cendant in the name of NRT,
representing the Shares;
(b) A Registration Rights Agreement (as hereinafter
defined) duly executed by Cendant; and
(c) The officer's certificate provided for in Section
5.3(c).
Section 1.4 DELIVERIES BY NRT. Subject to the terms and conditions
hereof, at the Closing, NRT will deliver the following to Cendant:
(a) The Cash Consideration, in immediately available
funds, in the manner set forth in Section 1.1 hereof;
(b) The officer's certificate provided for in Section
5.2(c).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CENDANT
Section 2.1 ORGANIZATION. Cendant 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.
Section 2.2 AUTHORITY. Cendant has the corporate 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 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
NRT) 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
2
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. Upon issuance, the Shares will be duly and
validly 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 NRT.
Section 2.4 CAPITALIZATION. The authorized capital of Cendant consists
of 2,000,000,000 shares of common stock, par value $.01 per share (the "Common
Stock"); 500,000,000 shares of Xxxx.xxx Stock; and 10,000,000 shares of
preferred stock, par value $.01 per share (the "Preferred Stock"). As of January
24, 2000, there were 704,560,494 shares of Common Stock issued and outstanding
and no shares of Preferred Stock or Xxxx.xxx Stock issued and outstanding.
Section 2.5 CONSENTS AND APPROVALS; NO VIOLATIONS. Neither the
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").
3
Section 2.6 SEC REPORTS. Since January 1, 1999, Cendant has filed all
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 (the "Securities Act"), 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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NRT
Section 3.1 ORGANIZATION. NRT 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.
Section 3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. NRT has 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 NRT. This
Agreement has been duly and validly executed and delivered by NRT and (assuming
this Agreement has been duly authorized, executed and delivered by Cendant)
constitutes a valid and binding agreement of NRT, enforceable against NRT 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.
4
Section 3.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Neither the
execution and delivery of this Agreement by NRT, nor the consummation by NRT 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 NRT, (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 NRT is a party, (c) violate any
order, writ, injunction, decree or award rendered by any Governmental Entity or
Law applicable to NRT, 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 3.4 NRT ACKNOWLEDGMENT. NRT has conducted its own independent
investigation, review and analysis of Cendant and Xxxx.xxx Group. In entering
into this Agreement, NRT 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, NRT
acknowledges that none of Xxxx.xxx Group, 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.
Section 3.9 INVESTMENT REPRESENTATIONS. NRT understands that the Shares
have not been registered under the Securities Act. NRT also understands that the
shares are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon NRT's representations
contained in the Agreement. NRT hereby represents and warrants as follows:
(a) NRT BEARS ECONOMIC RISK. NRT has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to Cendant and Xxxx.xxx Group so that it is capable of
evaluating the merits and risks of its investment in Cendant and Xxxx.xxx Group
and has the capacity to protect its own interests. NRT must bear the economic
risk of this investment indefinitely unless the Shares are registered pursuant
to the Securities Act or an exemption from registration is available. NRT also
understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow NRT
5
to transfer all or any portion of the Shares under the circumstances in the
amounts or at the times NRT might propose.
(b) ACQUISITION FOR OWN ACCOUNT. NRT is acquiring the Shares
for NRT's own account for investment only and not with a view towards their
distribution.
(c) NRT CAN PROTECT ITS INTEREST. NRT represents the by reason
of its, or of its management's, business or financial experience, NRT has the
capacity to protect its own interests in connection with the transactions
contemplated in this Agreement. Further, NRT is aware of no publication of any
advertisement in connection with the transactions contemplated in the Agreement.
(d) ACCREDITED INVESTOR. NRT represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(e) RULE 144. NRT acknowledges and agrees that the Shares must
be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. NRT has been
advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things: the availability of certain current public information about
Cendant, the resale occurring not less than one year after a party has purchased
and paid for the security to be sold, the sale being through an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934, as amended) and the
number of shares being sold during any three-month period not exceeding
specified limitation
6
ARTICLE IV
COVENANTS
Section 4.1 CONSENTS; COOPERATION. Each of Cendant and NRT shall
cooperate, and use its best efforts, to prepare and file all necessary materials
with the appropriate Governmental Entities pursuant to the HSR Act within ten
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
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 NRT 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.
Section 4.3 REGISTRATION RIGHTS AGREEMENT. At the Closing, Cendant and
NRT shall enter into a registration rights agreement, substantially in the form
attached hereto as Exhibit A relating to the Shares (the "Registration Rights
Agreement").
ARTICLE V
CONDITIONS AND TERMINATION
Section 5.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO CONSUMMATE THE
TRANSACTIONS UNDER THIS AGREEMENT. The respective obligations of each party to
consummate the transactions contemplated hereby is subject to the satisfaction
at or prior to the Closing of the following conditions:
7
(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 NRT 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
TRANSACTIONS UNDER THIS AGREEMENT. The obligation of Cendant to consummate the
transactions contemplated hereby are further subject to the satisfaction or
waiver of the following conditions:
(a) The representations and warranties of NRT 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) NRT 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) NRT shall have delivered to Cendant an officer's 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 NRT'S OBLIGATIONS TO CONSUMMATE THE
TRANSACTIONS UNDER THIS AGREEMENT. The obligation of NRT to consummate 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);
8
(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; and
(c) Cendant shall have delivered to NRT an officer's certificate
to the effect that each of the conditions specified above in
Sections 5.3(a) and (b) is satisfied.
ARTICLE VI
TERMINATION
Section 6.1 TERMINATION. This Agreement may be terminated and the
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 NRT at any time after 90 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 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
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 NRT. 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
9
(b) there shall be no liability or obligation hereunder on the
part of Cendant or NRT or any of their respective directors,
officers, employees, affiliates, controlling persons, agents
or representatives, except that Cendant or NRT, as the case
may be, may have liability to the other party if the basis of
termination is a breach by Cendant or NRT, 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 VII
MISCELLANEOUS
Section 7.1 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.
Section 7.2 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.
Section 7.3 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
7.3. Any such notice will be effective as of the date of receipt:
10
(a) if to Cendant, to
Cendant Corporation
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000/23
Attention: Xxxx X. Xxxx
Senior Vice President, Legal
(b) if to NRT, to
NRT Incorporated
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President &
General Counsel
Section 7.4 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 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.
11
Section 7.5 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and shall in no way be construed to
define, limit, describe, explain, modify, amplify, or add to the interpretation,
construction or meaning of any provision of, or scope or intent of, this
Agreement nor in any way affect this Agreement.
Section 7.6 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.
Section 7.7 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, except that NRT may cause the Shares to be sold to,
and registered in the name of, a wholly owned direct or indirect subsidiary of
NRT. 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 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.
12
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/ Xxxxx Xxxxxxx
--------------------------
Name:
Title:
NRT INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name:
Title:
