Exhibit 10.23
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of June 30, 1999, by and among Avis
Rent A Car, Inc., a Delaware corporation ("the Company"), Avis Fleet Leasing and
Management Corporation, a Texas corporation and a wholly owned subsidiary of the
Company ("Acquiror Sub"), PHH Corporation, a Maryland corporation ("Parent"),
and PHH Holdings Corporation, a Texas corporation and a wholly owned subsidiary
of Parent ("Holdings").
WHEREAS, the Company, Acquiror Sub, Parent and Holdings are parties to the
Agreement and Plan of Merger and Reorganization (the "Merger Agreement"), dated
as of May 22, 1999, as amended by the Amendment to the Agreement and Plan of
Merger and Reorganization, dated as of June 30, 1999, providing for the merger
of the Company and Holdings (the "Merger") pursuant to the Texas Business
Corporation Act, on the terms and subject to the conditions set forth therein;
and
WHEREAS, upon consummation of the Merger, Parent is acquiring 7,200,000
shares of the series A cumulative participating redeemable convertible preferred
stock, par value $0.01 per share (the "Series A Preferred Stock"), of Acquiror
Sub, which shares constitute 100% of the issued and outstanding shares of Series
A Preferred Stock; and
WHEREAS, the Series A Preferred Stock is convertible, under the
circumstances set forth in the Certificate of Designations of the Powers,
Preferences and Special Rights of the Series A Preferred Stock filed with the
Secretary of State of the State of Texas on June 29, 1999, into shares of class
B common stock, par value .01 per share, of the Company (the "Class B Common
Stock");
WHEREAS, until the fifth anniversary of the date of issuance thereof,
Acquiror Sub may pay dividends on the Series A Preferred Stock in shares of
series B cumulative PIK preferred stock, par value $.01 per share, of Acquiror
Sub ("Series B Preferred Stock");
WHEREAS, the Series B Preferred Stock is convertible, under the
circumstances set forth in the Certificate of Designations of the Powers,
Preferences and
Special Rights of the Series B Preferred Stock filed with the Secretary of State
of the State of Texas on __________, 1999, into shares of Class B Common Stock;
WHEREAS, upon the transfer, sale or disposition for value to any person
other than Cendant Corporation, a Delaware corporation and the parent
corporation of Parent ("Cendant"), or any Affiliate of Cendant, each share of
Class B Common Stock shall be exchanged automatically for a share of common
stock, par value $.01 per share, of the Company (the "Common Stock");
WHEREAS, in the event that Holder owns less than twenty percent (20%) of
the total voting power of the outstanding shares of voting stock of the Company,
each share of Class B Common Stock shall be exchangeable, at the option of
Holder, for one share of Common Stock;
WHEREAS, the Common Stock is publically traded on the New York Stock
Exchange;
WHEREAS, as a condition to closing under the Merger Agreement, the
Company, Acquiror Sub, Parent and Holdings are entering into this Agreement to
provide certain registration rights with respect to the shares of Common Stock
issuable to Parent, all in accordance with the terms and conditions set forth
herein; and
WHEREAS, the Board of Directors of the Company has authorized the officers
of the Company to execute and deliver this Agreement in the name and on behalf
of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and as a condition to closing under the Merger Agreement, the
parties to this Agreement hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Holder" means (i) Parent from and after the time at which it becomes
entitled to receive shares of Class B Common Stock upon a conversion of shares
of Series A
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Preferred Stock or Series B Preferred Stock and (ii) any other person that owns
Class B Common Stock or Registrable Securities, including their respective
successors and assigns who acquire such securities, directly or indirectly, from
Parent or such other person. For purposes of this Agreement, the Company may
deem and treat the registered holder of a Registrable Security as the Holder and
absolute owner thereof, and the Company shall not be affected by any notice to
the contrary.
"Registrable Securities" means (a) the Common Stock issuable upon ex
change of any shares of Class B Common Stock hereafter owned by Parent, (b) any
Common Stock acquired by Parent, Cendant, Holdings or any other Affiliate of
Parent in the open market at a time when Parent, Cendant, Holdings or any other
Affiliate of Parent is deemed to be an Affiliate (as such term is defined under
Rule 144 under the Securities Act) of the Company, and (c) any securities issued
or issuable in respect of the Common Stock referred to in clauses (a) and (b)
above, by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, reclassification, merger or
consolidation, and any other securities issued pursuant to any other pro rata
distribution with respect to such Common Stock. For purposes of this Agreement,
a Registrable Security ceases to be a Registrable Security when (x) it has been
effectively registered under the Securities Act and sold or distributed to the
public in accordance with an effective registration statement covering it (and
has not been reacquired in the manner described in clause (b) above), or (y) it
is sold or distributed to the public pursuant to Rule 144 (or any successor or
similar provision) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
2. Demand Registration.
(a) Subject to Section 5 hereof, if at any time any Holder shall request
the Company in writing to register under the Securities Act all or a part of the
Registrable Securities held by such Holder (a "Demand Registration"), the
Company shall use all reasonable efforts to cause to be filed and declared
effective as soon as reasonably practicable (but in no event later than the 45th
day after such Holder's request is made) a registration statement, on such
appropriate form as the Company in its discretion shall determine, providing for
the sale of all such Registrable Securities by such Holder. The Company agrees
to use its best efforts to keep any such
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registration statement continuously effective and usable for resale of
Registrable Securities for so long as the Holder whose Registrable Securities
are included therein shall request. The Company shall be obligated to file
registration statements pursuant to this Section 2(a) until all Registrable
Securities have ceased to be Registrable Securities. Each registration statement
filed pursuant to this Section 2(a) is hereinafter referred to as a "Demand
Registration Statement."
(b) The Company agrees (i) not to effect any public or private sale,
distribution or purchase of any of its securities which are the same as or
similar to the Registrable Securities, including a sale pursuant to Regulation D
under the Securities Act, during the 15-day period prior to, and during the
45-day period beginning on, the closing date of each underwritten offering under
any Demand Registration Statement, and (ii) to use reasonable best efforts to
cause each holder of its securities purchased from the Company, at any time on
or after the date of this Agreement (other than in a registered public offering)
to agree not to effect any public sale or distribution of any such securities
during such period, including a sale pursuant to Rule 144 under the Securities
Act.
(c) The Company may postpone for a reasonable period of time, not to
exceed 30 days, the filing or the effectiveness of any Demand Registration
Statement if the Board of Directors of the Company in good faith determines that
(A) such registration might have a material adverse effect on any plan or
proposal by the Company with respect to any financing, acquisition,
recapitalization, reorganization or other material transaction, or (B) the
Company is in possession of material non-public information that, if publicly
disclosed, could result in a material disruption of a major corporate
development or transaction then pending or in progress or in other material
adverse consequences to the Company.
(d) If at any time any Holder of Registrable Securities to be covered by a
Demand Registration Statement desires to sell Registrable Securities in an
underwritten offering, such Holder shall have the right to select any
nationally recognized investment banking firm(s) to administer the offering,
subject to the approval of the Company, which approval shall not be unreasonably
withheld, and the Company shall enter into underwriting agreements with the
underwriter(s) of such offering, which agreements shall contain such
representations and warranties by the Company, and such other terms, conditions
and indemnities as are at the time customarily contained in underwriting
agreements for similar offerings.
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3. Incidental Registration. Subject to Section 5 hereof and the other
terms and conditions set forth in this Section 3, if the Company proposes at any
time to register any shares of Common Stock (the "Initially Proposed Shares")
under the Securities Act for sale, whether or not for its own account, pursuant
to an underwritten offering, the Company will promptly give written notice to
the Holders of its intention to effect such registration (such notice to
specify, among other things, the proposed offering price, the kind and number of
securities proposed to be registered and the distribution arrangements,
including identification of the underwriter(s)), and the Holders shall be
entitled to include in such registration statement, as a part of such
underwritten offering, such number of shares (the "Holder Shares") to be sold
for the account of the Holders (on the same terms and conditions as the
Initially Proposed Shares) as shall be specified in a request in writing
delivered to the Company within 15 days after the date upon which the Company
gave the aforementioned notice.
The Company's obligations to include Holder Shares in a registration
statement pursuant to this Section 3 is subject to each of the following
limitations, conditions and qualifications:
(i) If, at any time after giving written notice of its intention
to effect a registration of any of its shares of Common Stock
and prior to the effective date of any registration statement
filed in connection with such registration, the Company shall
deter mine for any reason not to register all of such shares,
the Company may, at its election, give written notice of such
determination to the Holders and thereupon it shall be
relieved of its obligation to use any efforts to register any
Holder Shares in connection with such aborted registration.
(ii) If, in the opinion of the managing underwriter(s) of such
offering, the distribution of all or a specified portion of
the Holder Shares would materially interfere with the
registration and sale, in accordance with the intended method
thereof, of the Initially Proposed Shares, then the number of
Holder Shares to be included in such registration statement
shall be reduced to such number, if any, that, in the opinion
of such managing underwriter(s), can be included without such
interference. If, as a result of the cutback provisions of
the preceding sentence, the Holders are not entitled to
include all of the Holder Shares in such registration, such
Holders may elect to
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withdraw their request to include Holder Shares in such
registration (a "Withdrawal Election").
If the Company shall so request in writing, each Holder agrees not to
effect any public or private sale or distribution of any Registrable Securities
(other than the Holder Shares) during the 15-day period prior to and during the
45-day period beginning on, the closing date of any underwritten public offering
of shares of Common Stock made for the Company's own account.
4. Registration Procedures.
(a) Whenever the Company is required to use all reasonable efforts to
effect the registration of any Registrable Securities under the Securities Act
pursuant to the terms and conditions of Section 2(a) or 3 (such Registrable
Securities being hereinafter referred to as "Subject Shares"), the Company will
use all reasonable efforts to effect the registration and sale of the Subject
Shares in accordance with the intended method of disposition thereof. Without
limiting the generality of the foregoing, the Company will as soon as
practicable:
(i) prepare and file with the SEC a registration statement with
respect to the Subject Shares in form and substance
satisfactory to the Holders of the Subject Shares, and use all
reason able efforts to cause such registration statement to
become effective as soon as possible;
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such
registration statement effective for the applicable period and
to comply with the provisions of the Securities Act with
respect to the disposition of all Subject Shares and other
securities covered by such registration statement;
(iii) furnish the Holders covered by such registration statement,
without charge, such number of conformed copies of such
registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus included in such
registration statement (including each preliminary
prospectus), such
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documents incorporated by reference in such registration
statement or prospectus, and such other documents, as such
Holders may reasonably request;
(iv) use all reasonable efforts to register or qualify the Subject
Shares covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the
managing underwriter(s) shall reasonably recommend, and do any
and all other acts and things which may be reasonably
necessary or advisable to enable the Holders to consummate the
disposition in such jurisdictions of the Subject Shares
covered by such registration statement, except that the
Company shall not for any such purpose be required to (A)
qualify generally to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified, (B) subject
itself to taxation in any jurisdiction wherein it is not so
subject, or (C) consent to general service of process in any
such jurisdiction or otherwise take any action that would
subject it to the general jurisdiction of the courts of any
jurisdiction in which it is not so subject;
(v) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC;
(vi) furnish, at the Company's expense, unlegended certificates
representing ownership of the securities being sold in such
denominations as shall be requested and instruct the transfer
agent to release any stop transfer orders with respect to the
Subject Shares being sold;
(vii) notify each Holder at any time when a prospectus relating to
the Subject Shares is required to be delivered under the
Securities Act of the happening of any event as a result of
which the prospectus included in such Registration Statement
contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein
(in the case of the prospectus or any preliminary prospectus,
in light of the circumstances under which they were made) not
misleading, and the company will, as promptly as practicable
thereafter, prepare and file with the SEC and furnish a
supple-
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ment or amendment to such prospectus so that, as thereafter
delivered to the purchasers of Subject Shares such prospectus
will not contain any 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 not misleading;
(viii) enter into customary agreements (including an underwriting
agreement in customary form in the case of an underwritten
offering) and make such representations and warranties to the
sellers and underwriter(s) as in form and substance and scope
are customarily made by issuers to underwriters in
underwritten offerings and take such other actions as the
Holders or the managing underwriter(s) or agent, if any,
reasonably require in order to expedite or facilitate the
disposition of such Subject Shares;
(ix) make available for inspection by the Holders, any underwriter
or agent participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other
similar professional advisor retained by any such Holders or
underwriter (collectively the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as
shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information
reasonably requested by any such Inspector in connection with
such Registration Statement. The Holders agree that Records
and other information which the Company determines, in good
faith, to be confidential and of which determination the
Inspectors are so notified shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in
the Registration Statement, (ii) the release of such Records
is ordered pursuant to a subpoena, court order or regulatory
or agency request or (iii) the information in such Records has
been generally disseminated to the public. Each Holder agrees
that it will, upon learning that disclosure of such Record is
sought in a court of competent jurisdiction or by a
governmental agency, give
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notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential;
(x) obtain for delivery to the Company, the underwriter(s) or
their agent, with copies to the Holders, a "cold comfort"
letter from the Company's independent public accountants in
customary form and covering such matters of the type
customarily covered by "cold comfort" letters as the Holders
or the managing underwriter(s) reasonably request;
(xi) obtain for delivery to the Holders and the underwriter(s) or
their agent an opinion or opinions from counsel for the
Company in customary form and reasonably satisfactory to the
Holder, underwriters or agents and their counsel;
(xii) make available to its security holders earnings statements,
which need not be audited, satisfying the provisions of
Section 11(a) of the Securities Act no later than 90 days
after the end of the 12-month period beginning with the first
month of the Company's first quarter commencing after the
effective date of the Registration Statement, which earnings
statements shall cover said 12-month period;
(xiii) make every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the
effectiveness of such registration statement at the earliest
possible moment;
(xiv) cause the Subject Shares to be registered with or approved by
such other governmental agencies or authorities within the
United States as may be necessary to enable the sellers
thereof or the underwriters(s), if any, to consummate the
disposition of such Subject Shares;
(xv) cooperate with the Holders and the managing underwriter(s), if
any, or any other interested party (including any interested
broker-dealer) in making any filings or submission required to
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be made, and the furnishing of all appropriate information in
connection therewith, with the National Association of
Securities Dealers, Inc. ("NASD");
(xvi) cause its subsidiaries to take action necessary to effect the
registration of the Subject Shares contemplated hereby,
including filing any required financial information;
(xvii) effect the listing of the Subject Shares on the New York Stock
Exchange or such other national securities exchange or
over-the-counter market on which shares of the Common Stock
shall then be listed; and
(xviii) take all other steps necessary to effect the registration of
the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by the Holders and
stated to be specifically for use in the related registration statement,
preliminary prospectus, prospectus or other document incident thereto) all such
information and materials and take all such action as may be required in order
to permit the Company to comply with all applicable requirements of the SEC and
any applicable state securities laws and to obtain any desired acceleration of
the effective date of any registration statement prepared and filed by the
Company pursuant to this Agreement.
(c) The Holders shall, if requested by the Company or the managing
underwriter(s) in connection with any proposed registration and distribution
pursuant to this Agreement, (i) agree to sell the Subject Shares on the basis
provided in any underwriting arrangements entered into in connection therewith
and (ii) complete and execute all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents customary in similar
offerings.
(d) Upon receipt of any notice from the Company that the Company has
become aware that the prospectus (including any preliminary prospectus) included
in any registration statement filed pursuant to Section 2(a) or 3, as then in
effect, contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, the Holders shall forthwith discontinue disposition of
Subject Shares pursuant to the registration statement covering the same until
the Holders' receipt of copies of a
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supplemented or amended prospectus and, if so directed by the Company, deliver
to the Company (at the Company's expense) all copies other than permanent file
copies then in the Holder's possession, of the prospectus covering the Subject
Shares that was in effect prior to such amendment or supplement.
(e) The Holders shall pay all out-of-pocket expenses incurred in
connection with any Demand Registration Statements filed pursuant to Section
2(a) of this Agreement, including, without limitation, all SEC and blue sky
registration and filing fees (including NASD fees), printing expenses, transfer
agents and registrars' fees, underwriting discounts, commissions and expenses
attributable to securities sold for the account of the Holders pursuant to such
registration statement, fees and disbursements of the Company's counsel and
accountants and fees and disbursements of experts used by the Company in
connection with such registration statement. The Company shall pay any such
out-of-pocket expenses incurred in connection with any registration statement
filed pursuant to Section 3 of this Agreement, except that the Holders shall pay
all underwriting discounts, commissions and expenses attributable to the Subject
Shares sold pursuant to any such registration statement.
(f) In connection with any sale of Subject Shares that are registered
pursuant to this Agreement, the Company and the Holders shall enter into an
agreement providing for indemnification of the Holders by the Company, and
indemnification of the Company by the Holders, on terms customary for such
agreements at that time (it being understood that any disputes arising as to
what is customary shall be resolved by counsel to the underwriters).
5. Indemnification.
(a) Indemnification by the Company. The Company will, without limitation
as to time, indemnify and hold harmless, to the fullest extent permitted by law,
each Holder of Registrable Securities registered pursuant to this Agreement, the
officers, directors, agents and employees of each of them, each person who
controls such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors, agents and
employees of any such controlling person, from and against all reasonable and
documented losses, claims, damages, liabilities, costs (including without
limitation the costs of investigation and attorneys' fees) and expenses
(collectively, "Losses'), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any registration
statement, prospectus or form of prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon
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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,
except insofar as the same are based solely upon information furnished in
writing to the Company by such Holder expressly for use therein.
(b) Indemnification by Holders of Registrable Securities. In connection
with any registration statement in which a Holder is participating, such Holder
will furnish to the Company in writing such information as the Company
reasonably requests for use in connection with any registration statement or
prospectus and will indemnify, to the fullest extent permitted by law, the
Company, its officers, directors, agents and employees, each person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act) and the officers, directors, agents and employees of any
such controlling person, from and against all Losses, as incurred, arising out
of or based upon any untrue or alleged untrue statement of a material fact
contained in any registration statement, prospectus or form of prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or based upon 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, to the extent, but only to the extent, that any such
statement or omission is contained in any information furnished in writing to
the Company by such Holder expressly for use therein and was relied upon by the
Company in the preparation thereof. In no event will the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligations.
(c) Conduct of Indemnification Proceedings. If any person shall become
entitled to indemnity hereunder (an "indemnified party"), such indemnified party
shall give prompt notice to the party from which such indemnity is sought (the
"indemnifying party") of any claim or of the commencement of any action or
proceeding with respect to which such indemnified party seeks indemnification or
contribution pursuant hereto; provided, however, that the failure to so notify
the indemnifying party will not relieve the indemnifying party from any
obligation or liability except to the extent that the indemnifying party has
been prejudiced materially by such failure. All reasonable and documented fees
and expenses (including any fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid to
the indemnified party, as incurred, within five calendar days of written notice
thereof to the indemnifying party (regard less of whether it is ultimately
determined that an indemnified party is not entitled to
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indemnification hereunder). The indemnifying party will not consent to entry of
any judgment or enter into any settlement or otherwise seek to terminate any
action or proceeding in which any indemnified party is or could be a party and
as to which indemnification or contribution could be sought by such indemnified
party under this Section 5, unless such judgment, settlement or other
termination includes as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release, in form and substance
satisfactory to the indemnified party, from all liability in respect of such
claim or litigation for which such indemnified party would be entitled to
indemnification hereunder.
(d) Contribution. If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under Section 5(a) or 5(b) hereof in respect
of any Losses or is insufficient to hold such indemnified party harmless, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, will, jointly and severally, contribute to the amount paid or payable by
such indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties,
on the one hand, and such indemnified party, on the other hand, in connection
with the actions, statement or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party or indemnifying parties, on the one hand, and such
indemnified party, on the other hand, will be determined by reference to, among
other things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or related to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses will be deemed to include any reasonable and documented legal or
other fees or expenses incurred by such party in connection with any action or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), an indemnifying party that
is a selling Holder will not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the public
exceed the amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue or
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alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations
contained in this Section 5 will be in addition to any liability that the
indemnifying party or parties may otherwise have to the indemnified party or
parties. The provisions of this Section 5 will survive so long as Registrable
Securities remain outstanding, notwithstanding any transfer of the Registrable
Securities by any Holder thereof or any termination of this Agreement.
6. Notices. Any notice or other communication required or permitted given
hereunder shall be in writing and shall be effective (a) upon hand delivery or
delivery by fax at the address or number designated below (if delivered on a
business day during normal business hours where such notice is to be received),
or the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the third business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
service, fully prepaid, addressed to such address, or upon actual receipt of
such mailing, whichever shall first occur. The addresses for such communications
shall be:
If to the Company or Acquiror Sub, to:
Avis Rent A Car, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
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If to Parent or Holdings, to:
PHH Corporation
c/o Cendant Corporation
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
If to any other Holder, to such name at such address as such
Holder shall have indicated in a written notice delivered to
the other parties to this Agreement.
Any party hereto may from time to time change its address for notices under this
Section 6 by giving at least 10 days' notice of such changes to the other
parties hereto.
7. Waivers. No waiver by any party of any default with respect to any
provision, condition or requirement hereof shall be deemed to be a continuing
waiver in the future thereof or a waiver of any other provision, condition or
requirement hereof; nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter.
8. Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
9. Successors and Assigns; Amendments. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns,
including, without limitation, and without the need for an express assignment,
each subsequent Holder of any Registrable Securities. Except as provided in this
Section 9, neither the Company nor any Holder shall assign this Agreement or any
rights hereunder without the prior written consent of the other parties hereto.
The assignment by a party of this Agreement or any rights hereunder shall not
affect the obligations of such party hereunder. This Agreement may not be
amended except by a written instrument executed by the parties hereto.
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10. No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
11. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Delaware without
regard to the principles of conflicts of laws.
12. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto in respect of the subject matter hereof and supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof.
13. Execution. This Agreement may be executed in two or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
AVIS RENT A CAR, INC.
By:__________________________________
Name:
Title:
AVIS FLEET LEASING AND
MANAGEMENT CORPORATION
By:__________________________________
Name:
Title:
PHH CORPORATION
By:__________________________________
Name:
Title:
PHH HOLDINGS CORPORATION
By:__________________________________
Name:
Title:
17
