Exhibit 6
EXCHANGE AGREEMENT
AGREEMENT, dated as of March 28, 2001, by and among Cendant
Membership Services Holdings, Inc., a Delaware corporation ("Buyer"),
Xxxxxxx Xxxxxx ("Xxxxxxx"), and Xxxxx Xxxxxx ("Xxxxx" and together with
Xxxxxxx, the "Sellers").
WHEREAS, the Sellers own of 6,358 shares ("Tracking Stock
Shares") of Cendant Corporation common stock designated as Xxxx.xxx
Tracking Stock, par value $0.01 per share ("Xxxx.xxx Stock");
WHEREAS, Buyer is a party to an Agreement and Plan of
Reorganization, dated as of October 26, 2000, by and among Xxxxxxxxx.xxx,
Inc., ("Homestore"), Metal Acquisition Corp., WW Acquisition Corp.,
Xxxx.xxx, Inc. ("Xxxx.xxx"), Welcome Wagon International Inc., Buyer and
Cendant Corporation, a Delaware corporation ("Parent"), pursuant to which
each outstanding share of common stock of Xxxx.xxx, par value $.01 per
share, was converted into the right to receive .7284 shares (the "Exchange
Ratio") of common stock of Xxxxxxxxx.xxx, Inc., par value $0.001 per share
("Homestore Common Stock"); and
WHEREAS, the parties desire to exchange Tracking Stock Shares for
shares of Homestore Common Stock at the Exchange Ratio (substituting
Tracking Stock Shares for shares of common stock of Xxxx.xxx in the
calculation), on the terms and conditions provided for herein.
NOW, THEREFORE, in consideration of the provisions and the mutual
consents contained herein, the parties hereto agree as follows:
1. EXCHANGE OF TRACKING STOCK SHARES FOR HOMESTORE SHARES.
1.1 EXCHANGE OF SHARES. On the terms and subject to the
conditions contained herein, Buyer agrees to exchange with the Sellers and
the Sellers agree to exchange with Buyer 4,631 shares of Homestore Common
Stock (the "Homestore Shares") in exchange for the Tracking Stock Shares.
Pursuant to a Registration Rights Agreement, dated as of October 26, 2000
and effective as of February 16, 2000, by and between Homestore and Parent
(the "Registration Rights Agreement"), Homestore is required to file a
registration statement on Form S-3 no later than May 17, 2001 for a public
offering of the Homestore Shares (the "Shelf Registration").
1.2 DELIVERY OF SHARES. (a) At the Closing each of the Sellers
shall deliver to Buyer a validly issued certificate representing the
Tracking Stock Shares duly endorsed in blank or accompanied by stock powers
duly executed in blank, with all necessary stock transfer stamps affixed.
(b) At the Closing Buyer shall deliver to the Sellers a validly
issued certificate representing the Homestore Shares duly endorsed in blank
or accompanied by stock powers duly executed in blank, with all necessary
stock transfer stamps affixed.
2. THE CLOSING. Upon the terms and subject to the conditions of
this Agreement, it is intended that the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place on the date
of execution of this Agreement at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m. (local time); provided, however, if any of the conditions set forth in
this Agreement shall not have been satisfied or waived as of the date of
this Agreement, then the Closing shall take place on the third business day
after satisfaction of all the conditions provided for in Section 5 hereof,
or at such other place and time as the parties hereto shall agree in
writing (the time and date of such closing being referred to herein as the
"Closing Date"). The parties hereto agree to use their best efforts to have
the Closing occur as soon as practicable consistent with the provisions of
this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the
Sellers jointly and severally represent and warrant to Buyer as follows:
3.1 AUTHORIZATION. Each Seller has full power and authority to
enter into and to perform its obligation under this Agreement in accordance
with its terms.
3.2 BINDING AGREEMENT. This Agreement has been duly and validly
executed and delivered on behalf of each Seller and, assuming due
authorization, execution and delivery by Buyer, constitutes the legal and
binding obligation of each of the Sellers enforceable against the Sellers
in accordance with its terms subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, to
general equity principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
3.3 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as described
herein or in Schedule 3.4 hereof, no consent or approval of, other action
by, or any notice to, any governmental body or agency, domestic or foreign,
or any third party is required in connection with the execution and
delivery by each of the Sellers of this Agreement or the consummation of
the transaction contemplated hereby.
3.4 RESTRICTED SECURITIES. Until the Shelf Registration is
declared effective by the Securities and Exchange Commission pursuant to
the Registration Rights Agreement (which may or may not occur by May 17,
2001), each Seller understands that (a) the Homestore Shares to be received
by such Seller hereunder are characterized as "restricted securities" under
the federal securities laws inasmuch as such securities are being acquired
from Buyer in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances
and (b) the certificate(s) representing the Homestore Shares shall bear the
following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A WRITTEN
OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE ISSUER IN FORM
AND SUBSTANCE, THAT SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND VOTING CONTAINED IN
STOCKHOLDER AGREEMENT WHICH MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST OF THE HOLDER OR RECORD OF THIS SECURITY TO THE SECRETARY
OF THE CORPORATION AT THE PRINCIPAL OFFICES OF THE CORPORATION.
The Sellers must request that Homestore remove the legend set
forth above from the certificates evidencing the Homestore Shares or issue
to such holder new certificates therefor free of such legend in connection
with the Shelf Registration.
3.5 SUITABILITY STANDARDS.
(a) Each Seller is acquiring the Homestore Shares for investment
purposes only and solely for his own accounts and not with a
view to, or for resale in connection with, the distribution
or disposition thereof, except for such distributions or
dispositions which are effected in compliance with the
Securities Act;
(b) Each Seller understand that the Homestore Shares have not
been registered under the Securities Act or under any state
securities or "blue sky" laws;
(c) Each Seller will not directly or indirectly offer, sell,
transfer, assign, pledge, hypothecate or otherwise dispose
of, or solicit any offers to purchase or otherwise acquire
or take a pledge of, any of the Homestore Shares, except in
accordance with the Securities Act and all applicable state
securities or "blue sky" laws;
(d) The financial situation of each Seller is such that he can
afford to bear the economic risk of holding the Homestore
Shares for an indefinite period of time and suffer complete
loss of his investment in the Homestore Shares;
(e) Each Seller has such knowledge and experience in financial
and business matters that he is capable of evaluating the
merits and risks relating to his investment in the Homestore
Shares;
(f) Each Seller acknowledge that the Homestore Shares must be
held indefinitely and each Seller must continue to bear the
economic risk of his investments in the Homestore Shares
until the Homestore Shares are subsequently registered under
the Securities Act or an exemption from such registration is
available;
(g) Each Seller understands that the Homestore Shares represent
a speculative investment which involves a high degree of
risk of loss of his investment therein;
(h) In making his decision to receive the Homestore Shares under
this Agreement, each Seller has relied upon independent
investigations made by his and, to the extent believed by
him to be appropriate, his representatives, including his
own professional, tax and other advisors;
(i) In making his decision to receive the Homestore Shares under
this Agreement, each Seller has not received or relied upon
any information relating the Homestore from Buyer and each
Seller has relied solely upon the public filings of
Homestore to evaluate the risks associated with ownership of
the Homestore Shares; and
(j) All information that each Seller has provided to Buyer
concerning himself and his financial position is true,
complete and correct as of the date of this Agreement.
3.6 FEES AND COMMISSIONS. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of either Seller
is or will be entitled to any broker's or finder's fee or any other
commission directly or indirectly in connection with the transactions
contemplated herein. Each Seller agrees to indemnify and hold harmless
Buyer from liability for any compensation to any intermediary retained or
otherwise authorized to act by, or on behalf of, such Seller and the fees
and expenses of defending against such liability or alleged liability.
3.7 TRANSFER INSTRUCTIONS. Each Seller agrees that Homestore may
provide for appropriate transfer instructions to implement the provisions
of Section 3.4 hereof.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to each of the Sellers as follows:
4.1 ORGANIZATION AND STANDING. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
4.2 BINDING AGREEMENT. Buyer has all requisite corporate power
and authority to enter into, execute and deliver this Agreement, to carry
out its obligations hereunder and to consummate the transaction
contemplated hereby. This Agreement has been duly and validly authorized,
executed and delivered by Buyer and, assuming due authorization, execution
and delivery by each of the Sellers, constitutes the legal and binding
obligation of Buyer enforceable against Buyer in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, to general equity principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
4.3 FEES AND COMMISSIONS. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of Buyer is or
will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated
herein.
4.4 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as described
herein or in Schedule 4.4 hereof, no consent or approval of, other action
by, or any notice to, any governmental body or agency, domestic or foreign,
or any third party is required in connection with the execution and
delivery by the Buyer of this Agreement or the consummation of the
transaction contemplated hereby.
5. CONDITIONS PRECEDENT. To the extent that the date of this
Agreement is not also the date of the Closing the following shall apply:
The obligations of each party hereunder are subject to the fulfillment on
or prior to the Closing as follows:
5.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations and warranties of the other party hereto shall be true and
correct in all material respects on the date of the Closing Date as though
made on and as of such date and the other party shall have performed all
other obligations and agreements contained in this Agreement to be
performed prior to the Closing.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior agreements, arrangements and
undertakings, whether written or oral, relating to matters provided for
herein. There are no provisions, undertakings, representations or
warranties relative to the subject matter of this Agreement not expressly
set forth herein.
6.2 EXPENSES. Except as otherwise specifically provided in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transaction contemplated hereby
shall be paid by the party incurring such costs and expenses, whether or
not the Closing shall have occurred.
6.3 NOTICES. Any notice, demand, claim, notice of claim, request
or communication required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally by facsimile transmission or sent by first
class or certified mail, postage prepaid to the following addresses,
If to the Sellers:
Homehunters
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
If to Buyer:
c/o Cendant Corporation
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party may request by notifying in writing all
of the other parties to this Agreement in accordance with this Section 6.3
Any such notice shall be deemed to have been received on the date
of personal delivery, the date set forth on the postal service return
receipt, the date of delivery shown on the records of the overnight courier
or the date shown on the facsimile confirmation, as applicable.
6.4 BENEFIT AND ASSIGNMENT. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. There shall be no assignment of any
interest under this Agreement by any party except that Buyer may assign its
rights hereunder to any wholly owned subsidiary of Buyer; provided,
however, that no such assignment shall relieve the assignor of its
obligations under this Agreement. Nothing herein, express or implied, is
intended to or shall confer upon any other person any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
6.5 WAIVER. Any waiver of any provision of this Agreement shall
be valid only if set forth in an instrument in writing signed by the party
to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of
the same term or condition, or a waiver of any other term or condition, of
this Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any such rights.
6.6 AMENDMENT. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, the Sellers
and Buyer.
6.7 RELEASE OF CLAIMS. The Sellers hereby fully and
unconditionally releases from any and all claims, actions, causes of
actions, lawsuits, damages, liabilities, costs, losses, expenses,
assessments, sums of money, promises and demands of any nature whatsoever
of the Sellers against Buyer and each of its respective officers,
directors, employees or agents which are related to or arise out of (a) any
act taken or omitted to be taken in connection with or in anticipation of
the transactions contemplated hereby or (b) any act taken or omitted to be
taken by Buyer in connection with the transactions contemplated hereby.
6.8 CONSTRUCTION OF THIS AGREEMENT. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto
to express their mutual agreement, and this Agreement shall not be deemed
to have been prepared by any single party hereto. The headings of the
sections and subsections of this Agreement are inserted as a matter of
convenience and for reference purposes only and in no respect define, limit
or describe the scope of this Agreement or the intent of any section or
subsection. This Agreement may be executed in one or more counterparts and
by the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
6.9 GOVERNING LAW. 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 of law provision or rule thereof. The
parties 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 the
Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
CENDANT MEMBERSHIP SERVICES HOLDINGS, INC.
/s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President & Secretary
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
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XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
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