EXHIBIT 4.05
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.
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1.1 Exchange of Shares. On the terms and subject to the
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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
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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
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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,
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however, if any of the conditions set forth in this Agreement shall not have
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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
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Sellers jointly and severally represent and warrant to Buyer as follows:
3.1 Authorization. Each Seller has full power and authority to
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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
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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.
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3.3 Required Approvals, Notices and Consents. Except as
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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
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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.
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(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
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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,
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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
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may provide for appropriate transfer instructions to implement the provisions of
Section 3.4 hereof.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
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warrants to each of the Sellers as follows:
4.1 Organization and Standing. Buyer is a corporation duly
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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
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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
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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,
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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
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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
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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
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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.
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6.1 Entire Agreement. This Agreement embodies the entire
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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
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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
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party incurring such costs and expenses, whether or not the Closing shall have
occurred.
6.3 Notices. Any notice, demand, claim, notice of claim,
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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 00/xx/ 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.
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6.4 Benefit and Assignment. This Agreement will be binding upon
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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
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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
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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
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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
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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
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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.
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6.9 Governing Law. This Agreement shall be governed by,
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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.
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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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