EXHIBIT 7(E)
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of November 16, 2000 (this "Agreement"),
by and between Cendant Corporation, a Delaware corporation ("Cendant"), and
Liberty CNDT, Inc., a Delaware corporation ("Liberty CNDT") and a wholly owned
subsidiary of Liberty Media Corporation.
WHEREAS, Liberty CNDT desires to purchase from Cendant, and Cendant
desires to sell to Liberty CNDT, 4,051,864 shares (the "Shares") of the common
stock, par value $.01 per share, of Cendant designated CD common stock (the
"Common Stock"), for $12.34 per share or an aggregate of $50 million in cash.
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, Cendant is issuing and
delivering to Liberty CNDT, and Liberty CNDT is purchasing from Cendant, the
Shares, in consideration for which Liberty CNDT is conveying to Cendant fifty
million dollars ($50,000,000) in cash (the "Purchase Price"). Liberty CNDT shall
pay the Purchase Price to Cendant by wire transfer of immediately available
funds to an account or accounts previously designated by Cendant in writing for
such purpose.
Section 1.2 Deliveries. Subject to the terms and conditions hereof,
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Cendant is delivering to Liberty CNDT a certificate or certificates, 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 Purchase
Price, in immediately available funds, in the manner set forth in Section 1.1
hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CENDANT
Cendant represents and warrants to Liberty CNDT as follows:
Section 2.1 Organization. Cendant 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.
Section 2.2 Authority. Cendant has the corporate power and authority
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to execute and deliver this Agreement and to consummate the transactions
contemplated hereby 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
Liberty CNDT) constitutes a valid and binding agreement of Cendant, enforceable
against Cendant in accordance with its terms, except that (a) such enforcement
may be subject to any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other laws, now or hereafter in effect, relating to or
limiting creditors' rights generally and (b) enforcement of this Agreement,
including, among other things, the remedy of specific performance and injunctive
and other forms of equitable relief, may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
Section 2.3 The Shares. The Shares have been duly and validly
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authorized and, when a certificate evidencing the Shares is issued and delivered
against payment of the Purchase Price in accordance with the terms of this
Agreement, the Shares shall be duly and validly issued, fully paid and non-
assessable. Delivery of the certificate(s) for the Shares will pass valid title
to the Shares, free and clear of any claim, lien, charge, security interest,
encumbrance, restriction on transfer or voting or other defect in title
whatsoever ("Liens"), other than Liens resulting from any action(s) relating to
Liberty CNDT. The sale of the Shares to Liberty CNDT has been registered under
an effective shelf registration statement (Reg No. 333-49405) filed by Cendant
with the Securities and Exchange Commission (the "SEC"), and such registration
statement is available for such purpose under applicable Law (as defined below).
The Shares have been approved for listing on the New York Stock Exchange (the
"NYSE").
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 common
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 CD
Common Stock issued and outstanding, 3,742,286 shares of Xxxx.xxx common stock
issued and outstanding (excluding Cendant's 22,500,000 share 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 Cendant, nor the consummation by
Cendant of the transactions contemplated hereby (a) conflicts with or results 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").
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 SEC. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Securities Act of
1933, as amended, or the Securities Exchange Act of 1934, as amended, as the
case may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such SEC Documents, and none of the SEC Documents when filed (as
amended and restated and as supplemented by subsequently filed SEC Documents)
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Section 2.7 Shareholder Vote. The delivery and sale of the Shares
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does not require any vote of Cendant's shareholders pursuant to the terms of the
Cendant Charter or the rules of the NYSE.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LIBERTY CNDT
Liberty CNDT represents and warrants to 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.
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 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 (a) conflicts 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
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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
MISCELLANEOUS
Section 4.1 Entire Agreement. This Agreement constitutes the entire
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agreement of the parties relating to the subject matter hereof and supersedes
other prior agreements and understandings between the parties both oral and
written regarding such subject matter.
Section 4.2 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 4.3 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 4.3. Any such notice will be effective as of the date of receipt:
(a) if to Cendant, to
Cendant Corporation
9 West 00/xx/ Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000/23
Attention: General Counsel
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(b) if to Liberty CNDT, to
Liberty CNDT, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Fax: (000) 000-0000
Attention: General Counsel
Section 4.4 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 4.3 (or to such
other address for notice that such party has given the other party written
notice of in accordance with Section 4.3) 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 4.5 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 4.6 Counterparts. This Agreement may be signed in
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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 4.7 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
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other party, except that Liberty CNDT may cause the Shares to be registered in
the name of a wholly owned direct or indirect subsidiary of Liberty CNDT.
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.
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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: ___________________________________
Name:
Title:
LIBERTY CNDT, Inc.
By: ___________________________________
Name:
Title:
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Annex A
REGISTRATION PROCEDURES FOR
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SHARES OF CENDANT CORPORATION
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This Annex A forms part of the Purchase Agreement, dated as of
November 16, 2000 (the "Purchase Agreement"), among Cendant Corporation
("Cendant"), a Delaware corporation, Cendant Stock Corporation, a Delaware
corporation and a wholly owned subsidiary of Cendant, and Liberty CNDT, Inc., a
Delaware corporation ("Liberty CNDT"). The rights and obligations of Liberty
CNDT, any assignee of Liberty CNDT pursuant to Section 7.7 of the Purchase
Agreement and Cendant with respect to the registration, offer and resale of the
Shares (as defined in the Purchase Agreement) are as set forth on this Annex A.
Section 1. DEFINITIONS; INTERPRETATION.
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1.1 Definitions. As used in this Annex A, the following
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terms have the following meanings:
"Action" has the meaning set forth in Section 3.3.
"Cendant Indemnified Parties" has the meaning set forth in Section 3.2.
"Cendant Registration Statement" means a registration statement on Form
S-3 to be filed by Cendant with the Commission pursuant to Rule 415 under the
Securities Act, so as to permit the offer and subsequent resale of the Shares
from time to time following the effective date of such registration statement.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" has the meaning set forth in Section 2.1.
"NYSE" means the New York Stock Exchange.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization or government or political department or agency
thereof or other entity.
"Registered Shares" means (i) the Shares and (ii) any shares of capital
stock issued with respect to or in exchange for the shares referred to in the
preceding clause (i) by way of a stock dividend or stock split or in connection
with a recapitalization or a merger, consolidation or other reorganization. As
to any particular Registered Shares, such shares shall cease to be Registered
Shares when (i) the Cendant Registration Statement shall have become effective
under the Securities
Act and such Registered Shares shall have been disposed of in accordance with
the Cendant Registration Statement, (ii) such shares shall have been distributed
pursuant to Rule 144 (or any successor provision then in force) under the
Securities Act, (iii) such shares shall have been otherwise transferred, new
certificates or other evidences of ownership for them not bearing a legend
restricting further transfer and not subject to any stop transfer order or other
restrictions on transfer shall have been delivered by Cendant or the transfer
agent for such shares and subsequent disposition of such shares shall not
require registration or qualification under the Securities Act or any state
securities laws then in force, (iii) such shares shall be eligible for sale
pursuant to Rule 144(k) (or any successor provision then in force) or (iv) such
shares shall cease to be outstanding.
"Registration Expenses" means the following expenses incident to
Cendant's performance of its obligations hereunder: (i) registration and filing
fees with the Commission; (ii) fees and expenses of compliance with state
securities or "blue sky" laws (including reasonable fees and disbursements of
"blue sky" counsel); (iii) printing expenses, messenger and delivery expenses;
(iv) fees and expenses incurred in connection with the listing of the Registered
Shares on the NYSE or on such securities exchange or other national market
system on which shares of the same class or series as the Registered Shares may
then be principally traded; and (v) fees and expenses of counsel for Cendant and
of its independent certified public accountants, including the expenses of any
special audits or "cold comfort" letters. The term "Registration Expenses" does
not include, and Cendant shall not be responsible for: (a) brokerage
commissions, underwriting discounts and commissions and transfer taxes
attributable to the sale of any of the Registered Shares; (b) fees and
disbursements of underwriters and underwriters counsel (other than fees and
expenses of such counsel incurred in connection the "blue sky" qualification of
the Registered Shares); (c) fees and disbursements of counsel or of any experts
retained by Liberty CNDT in connection with the registration of the Registered
Shares or the disposition of such securities; or (d) any other out-of-pocket
expenses of Liberty CNDT.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Indemnified Parties" has the meaning set forth in Section 3.1.
All other capitalized terms used herein and not otherwise defined have
the meanings ascribed thereto in the Agreement.
1.2 Interpretation. When a reference is made in this Annex A
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to a Section, such reference shall be to a Section of this Annex A, unless
otherwise clearly indicated. The headings contained in this Annex A are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Schedule or the Agreement. Whenever the word "including"
is used in this Annex A, it shall be deemed to be followed by the words "without
limitation." The use of any gender herein shall be deemed to be or include the
other genders and the use of the singular herein shall be deemed to be or
include the plural (and vice versa), wherever appropriate.
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Section 2. REGISTRATION.
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2.1 Registration Procedures.
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Following the execution by the parties of the Purchase
Agreement, Cendant shall (i) prepare and, as soon as practicable thereafter,
cause to be filed with the Commission the Cendant Registration Statement, and
(ii) use its commercially reasonable efforts to cause the Cendant Registration
Statement to be declared effective at the earliest practicable date and, subject
to the terms of this Annex A, to remain effective for so long as any Registered
Shares remain outstanding. In connection with such registration of the
Registered Shares, Cendant shall:
(i) prepare and file with the Commission such
amendments and supplements to the Cendant Registration
Statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Registered Shares
covered by such registration statement until such time as all
of such Registered Shares have been disposed of in accordance
with the intended methods of disposition thereof as set forth
in such registration statement or no Registered Shares shall
remain outstanding.
(ii) furnish to each holder of Registered Shares (a
"Holder") and any managing underwriter such number of
conformed copies of such registration statement and of each
amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included
in such registration statement, and such other documents as a
Holder or such managing underwriter may reasonably request to
facilitate the disposition of the Registered Shares in
accordance with the intended methods of disposition thereof
as set forth in such registration statement;
(iii) use its commercially reasonable efforts to
register or qualify all the Registered Shares under such
securities or "blue sky" laws of such jurisdictions as the
Holders shall reasonably request (given the intended methods
of distribution), and do any and all other acts and things
which may be reasonably necessary or advisable to enable each
Holder to consummate the disposition in such jurisdictions of
his Registered Shares covered by such registration statement;
provided, however, that in connection therewith Cendant shall
not be required to register or qualify any Registered Shares
under the securities or "blue sky" laws of any jurisdiction
where Cendant would be required (x) to qualify to do business
as a foreign corporation or as a dealer in such jurisdiction,
(y) to conform its capitalization or the composition of its
assets at the time to the securities or "blue sky" laws of
such jurisdiction or (z) to take any action that would
subject it to service of process in suits other than those
arising out of the offer and sale of the Registered Shares
covered by such registration statement or subject itself to
taxation in such jurisdiction;
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(iv) immediately notify each Holder, at any time
when the prospectus included in such registration statement
is required to be delivered pursuant to the Securities Act in
connection with a sale of Registered Securities, of the
happening of any event which comes to the attention of
Cendant and as a result of which such prospectus, as then in
effect, would contain 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, in the
light of the circumstances under which they were made, not
misleading, and, subject to Section 2.4(d), Cendant will
promptly prepare and furnish to each Holder a supplement to
or an amendment of such prospectus so that, as thereafter
delivered to the purchasers of such Registered Shares, such
prospectus will not contain an untrue statement of material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(v) immediately notify each Holder of the
issuance or, to the knowledge of Cendant, threatened issuance
of any stop order by the Commission suspending the
effectiveness of the registration statement or of the receipt
by Cendant of any notification with respect to the suspension
or threatened suspension of the qualification of any
Registered Shares for sale under the securities or blue sky
laws of any jurisdiction, and Cendant shall take all
commercially practicable action necessary (i) to prevent the
entry of any threatened stop order or any threatened
suspension or (ii) to remove any stop order or lift any
suspension once entered;
(vi) otherwise use its commercially reasonable
efforts to comply with all applicable rules and regulations
of the Commission, and make available to its securities
holders as promptly as practicable an earnings statement
covering a period of twelve months beginning after the
effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 promulgated thereunder;
(vii) enter into customary agreements (including an
underwriting agreement containing customary terms and
conditions) and take such other actions as are reasonably
required to facilitate the disposition of such Registered
Shares; and
(viii) use its commercially reasonable efforts to
cause the Registered Shares to be listed on the NYSE or on
such other securities exchange or national market system on
which securities of Cendant of the same class or series as
the Registered Shares are then principally traded.
2.2 Registration Expenses. Cendant will pay all
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Registration Expenses in connection with the registration of Registered Shares
pursuant to Section 2.1. Liberty CNDT will pay, and hold Cendant harmless from,
all other costs and expenses incurred by or on behalf of
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Liberty CNDT or any Holder in connection with an offer and sale or other
disposition of Registered Shares pursuant to this Annex A.
2.3 Preparation; Reasonable Investigation. In connection with
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the preparation and filing of the Cendant Registration Statement, Cendant shall
provide the Holders and their respective attorneys and accountants the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission (other than any
documents incorporated by reference in any prospectus), and each amendment
thereof or supplement thereto, and shall make available and give each of them
such access to its books and records, pertinent corporate documents and such
opportunities to discuss the business of Cendant with its employees as shall be
necessary for the Holders to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act. Cendant shall not file any
registration statement, any prospectus included therein or any amendment thereof
or supplement thereto with the Commission over the reasonable objections of any
counsel for the Holders.
2.4 Certain Covenants. Each Holder shall furnish to Cendant
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such information regarding such Holder, its intended method of distribution of
Registered Shares and such other information as Cendant may from time to time
reasonably request for purposes of preparation of the Cendant Registration
Statement and to maintain the effectiveness of such registration statement.
(a) At least two business days prior to any disposition of
Registered Shares by each Holder, such Holder will orally advise Cendant of the
dates on which such disposition is expected to commence and terminate, the
number of Registered Shares expected to be sold, the method of disposition and
such other information as Cendant may reasonably request in order to supplement
the prospectus contained in the registration statement in accordance with the
rules and regulations of the Commission. Promptly after receiving such advice,
Cendant will, if necessary, (i) prepare a supplement to the prospectus based
upon such advice and file the same with the Commission pursuant to Rule 424(b)
under the Securities Act and (ii), if necessary, qualify the Registered Shares
to be sold under the securities or blue sky laws of such jurisdictions in the
United States as such Holder shall reasonably request (subject to the proviso of
Section 2.1(iii)).
(b) Cendant may postpone the filing or the effectiveness of
the Cendant Registration Statement or suspend the use of the Cendant
Registration Statement for a period of time, not to exceed 120 days in any
12-month period, if Cendant determines that the filing or 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 interest of Cendant (any such determination to be made by resolution of the
Board of Directors of Cendant). Cendant shall promptly notify each Holder at
such time assuch financing, acquisition or other corporate development has been
otherwise publicly disclosed or terminated or counsel to Cendant has determined
that such disclosure is not required due to subsequent events.
(c) Each Holder agrees that, upon receipt of any notice from
Cendant of the happening of any event of the kind described in Section 2.1(iv),
such Holder will forthwith
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discontinue disposition of the Registered Shares pursuant to such registration
statement until receipt of copies of the supplemented or amended prospectus
contemplated by Section 2.1(iv), and, if so directed by Cendant, will deliver to
Cendant all copies of the prospectus covering the Registered Shares in its
possession at the time of receipt of such notice.
(d) Each Holder shall, at any time it is engaged in a
distribution of Registered Shares, comply with all applicable laws, including
Regulation M promulgated under the Exchange Act and (i) will not engage in any
stabilization activity in connection with the securities of Cendant in
contravention of such rules, (ii) will distribute the Registered Shares solely
in the manner described in the Cendant Registration Statement and (iii) will not
bid for or purchase any securities of Cendant or attempt to induce any person to
purchase any securities of Cendant other than as permitted under the Exchange
Act.
(e) Each Holder shall provide such information and materials,
execute all such documents and take all such other actions as Cendant shall
reasonably request in order to permit Cendant to comply with all applicable
requirements of law and to effect the registration of the Registered Shares.
Section 3. INDEMNIFICATION.
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3.1 Indemnification by Cendant. Cendant will indemnify and
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hold harmless each Holder, such holders's directors, officers and partners and
each other Person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act ("Seller Indemnified Parties"), against any
and all losses, claims, damages or liabilities, joint or several, and expenses
to which the Seller Indemnified Parties, or any of them, may become subject,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) or expenses arise out of or are based upon (x)
any untrue statement or alleged untrue statement of any material fact contained
in the Cendant Registration Statement, any preliminary, final or summary
prospectus included therein, or any amendment or supplement thereto, or (y) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
Cendant will reimburse such Seller Indemnified Parties for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending such loss, claim, liability, action or proceeding; provided, that
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Cendant shall not be liable to any Holder, such holder's directors, officers or
partners or any Person, if any, who controls such Holder within the meaning of
the Securities Act or the Exchange Act to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (i) any actual or alleged untrue statement in or any
actual or alleged omission from, the Cendant Registration Statement or amendment
or supplement thereto or any preliminary, final or summary prospectus, in
reliance upon and in conformity with written information furnished by or on
behalf of such Holder to Cendant specifically for use in the preparation
thereof, (ii) any actual or alleged untrue statement of a material fact or any
actual or alleged omission of a material fact required to be stated in any
preliminary prospectus if such Holder sells Registered Shares to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent,
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if Cendant had previously furnished copies thereof to such Holder or its
representatives and such final prospectus, as then amended or supplemented,
corrected any such misstatement or omission or (iii) the use of any preliminary,
final or summary prospectus by or on behalf of such Holder after Cendant has
notified such holder, in accordance with Section 2.1(iv), that such prospectus
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein, in the light of the circumstances under
which they were made, not misleading.
3.2 Indemnification by Holders. Each Holder will indemnify and
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hold harmless Cendant, each of its directors and officers, and each Person, if
any, who controls Cendant within the meaning of the Securities Act or the
Exchange Act (the "Cendant Indemnified Parties"), against any and all losses,
claims, damages or liabilities and expenses to which the Cendant Indemnified
Parties may become subject, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Cendant Registration Statement, any preliminary,
final or summary prospectus included therein, or amendment or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, if the statement or omission was made in reliance upon and in
conformity with written information furnished to Cendant by or on behalf of such
Holders specifically for use in the preparation thereof or (ii) the use of any
prospectus by or on behalf of such Holders after Cendant has notified such
Holders that such prospectus contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein, in light of the
circumstances under which they were made, not misleading. Notwithstanding the
foregoing, no Holder shall be liable under this Section 3.2 for any amounts
exceeding the gross proceeds received by such Holder in connection with the sale
of such Holder's Registered Shares.
3.3 Indemnification Procedures. Any Person that proposes to
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assert the right to be indemnified under this Section 3 shall, promptly after
receipt of notice of any claim, action, suit, proceeding or other litigation
(collectively, an "Action") against such Person in respect of which a claim is
to be made against an indemnifying party under this Section 3, notify such
indemnifying party of the commencement of such Action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party of any such
Action shall not relieve it from any liability that it may have to any
indemnified party otherwise than under this Section 3, except to the extent that
such indemnifying party is prejudiced by such failure to give notice. In case
any such Action shall be brought and notice given to the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, with counsel satisfactory to
the indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any further
legal or other expenses incurred by such indemnified party, except as provided
below and except for the reasonable costs of investigation subsequently incurred
by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ separate counsel and to
participate in (but not control) any such Action, but the fees and expenses of
such counsel shall be the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized by the
indemnifying party, (ii) the indemnified party shall have been advised by its
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counsel in writing that there are legal defenses available to it that are
different from or in addition to those available to the indemnifying parties,
(iii) the indemnified party shall have been advised by its counsel in writing
that there is a conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense of such Action (in which case
the indemnifying party shall not have the right to direct the defense of such
Action on behalf of the indemnified party) or (iv) the indemnifying party shall
not in fact have employed counsel to assume the defense of such Action, in each
of which cases the fees and expenses of such counsel shall be at the expense of
the indemnifying party. An indemnifying party shall not be liable for any
settlement of an Action effected without its written consent (which consent
shall not be unreasonably withheld). No indemnifying party will consent to entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such Action. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of an Action will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such Action.
3.4 Contribution. If recovery is not available under the
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foregoing indemnification provisions, for any reason other than as specified
therein, the parties entitled to indemnification by the terms thereof shall be
entitled to contribution for any and all losses, claims, damages or liabilities,
joint or several, and expenses to which they may become subject, in such
proportion as is appropriate to reflect the relative fault of the parties
entitled to indemnification, on the one hand, and the indemnifying parties, on
the other, in connection with the matter out of which such losses, claims,
damages, liabilities or expenses arise or result from. In determining the amount
of contribution to which the respective parties are entitled, there shall be
considered the parties' relative knowledge and access to information concerning
the matter with respect to which the Action was asserted, the opportunity to
correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. Cendant and each Holder
agrees that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation.
Section 4. RULE 144.
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4.1 Subject to Section 2.4, Cendant hereby covenants to use
its commercially reasonable efforts to file in a timely manner all reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder (or, if at any time
Cendant is not required to file such reports, it will, upon the request of
Holder, make publicly available other information so long as necessary to permit
sales under Rule 144 under the Securities Act), and it will take such further
action as any Holder may reasonably request, all to the extent required from
time to time to enable Cendant to meet the requirements for issuers entitled to
register securities on Form S-3 or any successor form.
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