{"id":43396,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/exchange-agreement-cendant-membership-service-holdings-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"exchange-agreement-cendant-membership-service-holdings-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/exchange-agreement-cendant-membership-service-holdings-inc.html","title":{"rendered":"Exchange Agreement &#8211; Cendant Membership Service Holdings Inc., Joseph A. Preis and John P. McWeeny"},"content":{"rendered":"<pre>                               EXCHANGE AGREEMENT\n\n          AGREEMENT, dated as of March 28, 2001, by and among Cendant Membership\nServices Holdings, Inc., a Delaware corporation (\"Buyer\"), Joseph A. Preis\n(\"Preis\"), and John P. McWeeny (\"McWeeny\" and together with Preis, the\n\"Sellers\").\n\n          WHEREAS, Preis is the owner of 81,761 shares (\"the Preis Shares\") of\nCendant Corporation common stock designated as Move.com Tracking Stock, par\nvalue $0.01 per share (\"Move.com Stock\"), and McWeeny is the owner of 15,751\nshares of Move.com Stock (the \"McWeeny Shares\" and together with the Preis\nShares, the \"Tracking Stock Shares\");\n\n          WHEREAS, Buyer is a party to an Agreement and Plan of Reorganization,\ndated as of October 26, 2000, by and among Homestore.com, Inc., (\"Homestore\"),\nMetal Acquisition Corp., WW Acquisition Corp., Move.com, Inc. (\"Move.com\"),\nWelcome Wagon International Inc., Buyer and Cendant Corporation, a Delaware\ncorporation (\"Parent\"), pursuant to which each outstanding share of common stock\nof Move.com, par value $.01 per share, was converted into the right to receive\n.7284 shares (the \"Exchange Ratio\") of common stock of Homestore.com, Inc., par\nvalue $0.001 per share (\"Homestore Common Stock\"); and\n\n          WHEREAS, the parties desire to exchange Tracking Stock Shares for\nshares of Homestore Common Stock at the Exchange Ratio (substituting Tracking\nStock Shares for shares of common stock of Move.com in the calculation), on the\nterms and conditions provided for herein.\n\n          NOW, THEREFORE, in consideration of the provisions contained herein,\nthe parties hereto agree as follows:\n\n          1.    EXCHANGE OF TRACKING STOCK SHARES FOR HOMESTORE SHARES.\n                ------------------------------------------------------ \n\n                1.1 Exchange of Shares. On the terms and subject to the\n                    ------------------ \nconditions contained herein, Buyer agrees to exchange with the Sellers and the\nSellers agree to exchange with Buyer (i) 59,555 shares of Homestore Common Stock\n(the \"Preis Homestore Shares\") in exchange for the Preis Shares, and (ii) 11,473\nshares of Homestore Common Stock (the \"McWeeny Homestore Shares\" and, together\nwith the Preis Homestore Shares, the \"Homestore Shares\") in exchange for the\nMcWeeny Shares. Pursuant to a Registration Rights Agreement, dated as of October\n26, 2000 and effective as of February 16, 2000, by and between Homestore \n\n \nand Parent (the \"Registration Rights Agreement\"), Homestore is required to file\na registration statement on Form S-3 no later than May 17, 2001 for a public\noffering of the Homestore Shares (the \"Shelf Registration\").\n\n             1.2 Delivery of Shares. (a) At the Closing each of the Sellers\n                 ------------------\nshall deliver to Buyer validly issued certificates representing the Tracking\nStock Shares duly endorsed in blank or accompanied by stock powers duly executed\nin blank, with all necessary stock transfer stamps affixed.\n\n     (b)  At the Closing Buyer shall (i) deliver to Preis a validly issued\ncertificate representing the Preis Homestore Shares duly endorsed in blank or\naccompanied by stock powers duly executed in blank, with all necessary stock\ntransfer stamps affixed and (ii) deliver to McWeeny a validly issued certificate\nrepresenting the McWeeny Homestore Shares duly endorsed in blank or accompanied\nby stock powers duly executed in blank, with all necessary stock transfer stamps\naffixed.\n\n     2.    THE CLOSING.  Upon the terms and subject to the conditions of this\n           -----------                                                       \nAgreement, it is intended that the closing of  the transactions contemplated by\nthis Agreement (the \"Closing\") shall take place on the date of execution of this\nAgreement at the offices of Skadden, Arps, Slate, Meagher &amp; Flom LLP, Four Times\nSquare, New York, New York 10036, at 10:00 a.m. (local time); provided, however,\n                                                              --------  ------- \nif any of the conditions set forth in this Agreement shall not have been\nsatisfied or waived as of the date of this Agreement, then the Closing shall\ntake place on the third business day after satisfaction of all the conditions\nprovided for in Section 5 hereof, or at such other place and time as the parties\nhereto shall agree in writing (the time and date of such closing being referred\nto herein as the \"Closing Date\").  The parties hereto agree to use their best\nefforts to have the Closing occur as soon as practicable consistent with the\nprovisions of this Agreement.\n\n     3.    REPRESENTATIONS AND WARRANTIES OF THE SELLERS.  Each of the Sellers\n           ---------------------------------------------                      \njointly and severally represent and warrant to Buyer as follows:\n\n           3.1  Authorization. Each Seller has full power and authority to enter\n                -------------    \ninto and to perform its obligation under this Agreement in accordance with its\nterms.\n\n           3.2  Binding Agreement. This Agreement has been duly and validly\n                -----------------\nexecuted and delivered on behalf of each Seller and, assuming due authorization,\nexecution and delivery by Buyer, constitutes the legal and binding\n\n                                       2\n\n \nobligation of each of the Sellers enforceable against the Sellers in accordance\nwith its terms, subject to the effects of bankruptcy, insolvency, fraudulent\nconveyance, reorganization, moratorium and other similar laws relating to or\naffecting creditors' rights generally, and to general equity principles (whether\nconsidered in a proceeding in equity or at law).\n\n             3.3  Required Approvals, Notices and Consents. Except as described\n                  ----------------------------------------\nherein or in Schedule 3.3 hereof, no consent or approval of, other action by, or\nany notice to, any governmental body or agency, domestic or foreign, or any\nthird party is required in connection with the execution and delivery by each of\nthe Sellers of this Agreement or the consummation by each of the Sellers of the\ntransaction contemplated hereby.\n\n             3.4  Restricted Securities. Until the Shelf Registration is\n                  ---------------------\ndeclared effective by the Securities and Exchange Commission pursuant to the\nRegistration Rights Agreement (which may or may not occur by May 17, 2001), each\nSeller understands that (a) the Homestore Shares to be received by such Seller\nhereunder are characterized as \"restricted securities\" under the federal\nsecurities laws inasmuch as such securities are being acquired from Buyer in a\ntransaction not involving a public offering and that under such laws and\napplicable regulations such securities may be resold without registration under\nthe Securities Act only in certain limited circumstances and (b) the\ncertificate(s) representing the Homestore Shares shall bear the following\nlegends:\n\n     THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED\n     UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SHARES REPRESENTED BY\n     THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH\n     REGISTRATION OR A WRITTEN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE\n     ISSUER IN FORM AND SUBSTANCE, THAT SUCH TRANSFER IS EXEMPT FROM THE\n     REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933.\n\n          The Sellers must request that Homestore remove the legend set forth\nabove from the certificates evidencing the Homestore Shares or issue to such\nholder new certificates therefor free of such legend in connection with the\nShelf Registration.\n\n             3.5  Suitability Standards.\n                  ---------------------\n\n                                       3\n\n \n          (a)  Each Seller is acquiring the Homestore Shares for investment\n               purposes only and solely for his own accounts and not with a view\n               to, or for resale in connection with, the distribution or\n               disposition thereof, except for such distributions or\n               dispositions which are effected in compliance with the Securities\n               Act;\n\n          (b)  Each Seller understand that the Homestore Shares have not been\n               registered under the Securities Act or under any state securities\n               or \"blue sky\" laws;\n\n          (c)  Each Seller will not directly or indirectly offer, sell,\n               transfer, assign, pledge, hypothecate or otherwise dispose of, or\n               solicit any offers to purchase or otherwise acquire or take a\n               pledge of, any of the Homestore Shares, except in accordance with\n               the Securities Act and all applicable state securities or \"blue\n               sky\" laws;\n\n          (d)  The financial situation of each Seller is such that he can afford\n               to bear the economic risk of holding the Homestore Shares for an\n               indefinite period of time and suffer complete loss of his\n               investment in the Homestore Shares;\n\n          (e)  Each Seller has such knowledge and experience in financial and\n               business matters that he is capable of evaluating the merits and\n               risks relating to his investment in the Homestore Shares;\n\n          (f)  Each Seller acknowledge that the Homestore Shares must be held\n               indefinitely and each Seller must continue to bear the economic\n               risk of his investments in the Homestore Shares until the\n               Homestore Shares are subsequently registered under the Securities\n               Act or an exemption from such registration is available;\n\n          (g)  Each Seller understands that the Homestore Shares represent a\n               speculative investment which involves a high degree of risk of\n               loss of his investment therein;\n\n          (h)  In making his decision to receive the Homestore Shares under this\n               Agreement, each Seller has relied upon independent investigations\n               made by his and, to the extent believed by him to be appropriate,\n               his representatives, including his own professional, tax and\n               other advisors;\n\n                                       4\n\n \n          (i)  In making his decision to receive the Homestore Shares under this\n               Agreement, each Seller has not received or relied upon any\n               information relating the Homestore from Buyer and each Seller has\n               relied solely upon the public filings of Homestore to evaluate\n               the risks associated with ownership of the Homestore Shares; and\n\n          (j)  All information that each Seller has provided to Buyer concerning\n               himself and his financial position and the financial position of\n               Preis' spouse is true, complete and correct as of the date of\n               this Agreement.\n\n               3.6  Fees and Commissions. No agent, broker, investment banker,\n                    --------------------\nperson or firm acting on behalf of or under the authority of either Seller is or\nwill be entitled to any broker's or finder's fee or any other commission\ndirectly or indirectly in connection with the transactions contemplated herein.\nEach Seller agrees to indemnify and hold harmless Buyer from liability for any\ncompensation to any intermediary retained or otherwise authorized to act by, or\non behalf of, such Seller and the fees and expenses of defending against such\nliability or alleged liability.\n\n               3.7  Transfer Instructions. Each Seller agrees that Homestore may\n                    ---------------------\nprovide for appropriate transfer instructions to implement the provisions of\nSection 3.4 hereof.\n\n          4.   REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and\n               ---------------------------------------\nwarrants to each of the Sellers as follows:\n\n               4.1  Organization and Standing. Buyer is a corporation duly\n                    -------------------------\nincorporated, validly existing and in good standing under the laws of the\njurisdiction of its incorporation.\n\n               4.2  Binding Agreement. Buyer has all requisite corporate power\n                    -----------------\nand authority to enter into, execute and deliver this Agreement, to carry out\nits obligations hereunder and to consummate the transaction contemplated hereby.\nThis Agreement has been duly and validly authorized, executed and delivered by\nBuyer and, assuming due authorization, execution and delivery by each of the\nSellers, constitutes the legal and binding obligation of Buyer enforceable\nagainst Buyer in accordance with its terms, subject to the effects of\nbankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and\nother laws relating to or affecting\n\n                                       5\n\n \ncreditors' rights generally, and to general equity principles (whether\nconsidered in a proceeding in equity or at law).\n\n              4.3 Fees and Commissions. No agent, broker, investment banker,\n                  --------------------\nperson or firm acting on behalf of or under the authority of Buyer is or will be\nentitled to any broker's or finder's fee or any other commission directly or\nindirectly in connection with the transactions contemplated herein.\n\n              4.4  Required Approvals, Notices and Consents. Except as described\n                   ----------------------------------------\nherein or in Schedule 4.4 hereof, no consent or approval of, other action by, or\nany notice to, any governmental body or agency, domestic or foreign, or any\nthird party is required in connection with the execution and delivery by Buyer\nof this Agreement or the consummation by Buyer of the transaction contemplated\nhereby.\n\n        5.    CONDITIONS PRECEDENT. To the extent that the date of this\n              --------------------\nAgreement is not also the date of the Closing the following shall apply: The\nobligations of each party hereunder are subject to the fulfillment on or prior\nto the Closing as follows:\n\n              5.1  Representations, Warranties and Agreements. The\n                   ------------------------------------------\nrepresentations and warranties of the other party hereto shall be true and\ncorrect in all material respects on the Closing Date as though made on and as of\nsuch date and the other party shall have performed all other obligations and\nagreements contained in this Agreement to be performed prior to the Closing.\n\n        6.    MISCELLANEOUS.\n              ------------- \n\n              6.1 Entire Agreement. This Agreement embodies the entire agreement\n                  ----------------\nand understanding of the parties with respect to the subject matter hereof and\nsupersedes any and all prior agreements, arrangements and undertakings, whether\nwritten or oral, relating to matters provided for herein. There are no\nprovisions, undertakings, representations or warranties relative to the subject\nmatter of this Agreement not expressly set forth herein.\n\n              6.2 Expenses.  Except as otherwise specifically provided in this\n                  --------\nAgreement, all costs and expenses, including, without limitation, fees and\ndisbursements of counsel, financial advisors and accountants, incurred in\nconnection with this Agreement and the transaction contemplated hereby shall be\npaid by the party incurring such costs and expenses, whether or not the Closing\nshall have occurred.\n\n                                       6\n\n \n             6.3  Notices. Any notice, demand, claim, notice of claim, request\n                  -------     \nor communication required or permitted to be given under the provisions of this\nAgreement shall be in writing and shall be deemed to have been duly given if\ndelivered personally by facsimile transmission or sent by first class or\ncertified mail, postage prepaid to the following addresses,\n\n          If to Preis:\n\n               Joseph A. Preis\n               c\/o MetroRent, Inc.\n               2021 Fillmore Street\n               San Francisco, California  94115\n               Facsimile:  (415) 563-0383\n\n               With a copy to\n\n               Dudnick Detwiler Rivin &amp; Stikker LLP\n               351 California Street, 15\/th\/ Floor\n               San Francisco, California  94104\n               Attention:  Jeffrey B. Detwiler, Esq.\n               Facsimile:  (415) 982-1401\n\n\n          If to McWeeny:\n\n               John P. McWeeny\n               c\/o MetroRent, Inc.\n               2021 Fillmore Street\n               San Francisco, California  94115\n               Facsimile:  (415) 563-0383\n\n               with a copy to:\n\n               Dudnick Detwiler Rivin &amp; Stikker LLP\n               351 California Street, 15\/th\/ Floor\n               San Francisco, California  94104\n               Attention:  Jeffrey B. Detwiler, Esq.\n               Facsimile:  (415) 982-1401\n\n          If to Buyer:\n\n                                       7\n\n \n               c\/o Cendant Corporation\n               9 West 57\/th\/ Street\n               New York, New York  10019\n               Attention:  Eric J. Bock, Esq.\n               Facsimile:  (212) 413-1922\n\n               with a copy to:\n\n               Skadden, Arps, Slate, Meagher &amp; Flom LLP\n               Four Times Square\n               New York, New York 10038\n               Attention:  David Fox, Esq.\n               Facsimile:  (212) 735-2000\n\nor to such other address as any party may request by notifying in writing all of\nthe other parties to this Agreement in accordance with this Section 6.3.\n\n     Any such notice shall be deemed to have been received on the date of\npersonal delivery, the date set forth on the postal service return receipt, the\ndate of delivery shown on the records of the overnight courier or the date shown\non the facsimile confirmation, as applicable.\n\n             6.4  Benefit and Assignment. This Agreement will be binding upon\n                  ----------------------\nand inure to the benefit of the parties hereto and their respective successors\nand permitted assigns. There sh all be no assignment of any interest under this\nAgreement by any party except that Buyer may assign its rights hereunder to any\nwholly owned subsidiary of Buyer; provided, however, that no such assignment\n                                  --------  -------\nshall relieve the assignor of its obligations under this Agreement. Nothing\nherein, express or implied, is intended to or shall confer upon any other person\nany legal or equitable right, benefit or remedy of any nature whatsoever under\nor by reason of this Agreement.\n\n             6.5  Waiver. Any waiver of any provision of this Agreement shall be\n                  ------\nvalid only if set forth in an instrument in writing signed by the party to be\nbound thereby. Any waiver of any term or condition shall not be construed as a\nwaiver of any subsequent breach or a subsequent waiver of the same term or\ncondition, or a waiver of any other term or condition, of this Agreement. The\nfailure of any party to assert any of its rights hereunder shall not constitute\na waiver of any such rights.\n\n                                       8\n\n \n             6.6  Amendment. This Agreement may not be amended or modified\n                  ---------     \nexcept by an instrument in writing signed by, or on behalf of, the Sellers and\nBuyer.\n\n             6.7  Release of Claims. The Sellers hereby fully and\n                  -----------------       \nunconditionally releases from any and all claims, actions, causes of actions,\nlawsuits, damages, liabilities, costs, losses, expenses, assessments, sums of\nmoney, promises and demands of any nature whatsoever of the Sellers against\nBuyer and each of its respective officers, directors, employees or agents which\nare related to or arise out of (a) any act taken or omitted to be taken in\nconnection with or in anticipation of the transactions contemplated hereby or\n(b) any act taken or omitted to be taken by Buyer in connection with the\ntransactions contemplated hereby; provided that the foregoing shall in no event\noperate as a release of claims, actions, causes of action, lawsuits, damages,\nliabilities, costs, losses, expenses, assessments, sums of money, promises or\ndemands of any nature whatsoever that in any way relate to or arise out of or in\nconnection with that certain Asset Purchase Agreement among Parent, Move.com,\nSellers and others dated as of October 29, 1999, as amended, those certain\nEmployment Agreements between Rent Net, Inc. and each Seller dated December 17,\n1999, that certain Escrow Agreement among Move.com, Bank of San Francisco,\nSellers and others dated as of December 17, 1999, and those certain Stock Option\nAgreements between Move.com and each Seller dated as of January 13, 2000.\n\n             6.8  Construction of this Agreement. The language used in this\n                  ------------------------------     \nAgreement shall be deemed to be the language chosen by the parties hereto to\nexpress their mutual agreement, and this Agreement shall not be deemed to have\nbeen prepared by any single party hereto. The headings of the sections and\nsubsections of this Agreement are inserted as a matter of convenience and for\nreference purposes only and in no respect define, limit or describe the scope of\nthis Agreement or the intent of any section or subsection. This Agreement may be\nexecuted in one or more counterparts and by the different parties hereto in\nseparate counterparts, each of which when executed shall be deemed to be an\noriginal but all of which taken together shall constitute one and the same\nagreement.\n\n             6.9  Governing Law. This Agreement shall be governed by, enforced\n                  -------------       \nunder and construed in accordance with, the laws of the State of New York,\nwithout giving effect to any choice of law provision or rule thereof. The\nparties submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America in each case located in the County of\nNew York for any litigation arising out of or relating to the Agreement and the\ntransactions contemplated hereby.\n\n                                       9\n\n \n          IN WITNESS WHEREOF, this Agreement has been duly executed by the\nparties hereto as of the date first above written.\n\n\n\n                                      CENDANT MEMBERSHIP SERVICES HOLDINGS, INC.\n\n\n\n                                      \/s\/ Eric J. Bock\n                                      ----------------\n                                      Name: Eric J. Bock\n                                      Title: Senior Vice President &amp; Secretary\n\n\n                                      JOSEPH A. PREIS\n\n\n\n                                      \/s\/ Joseph A. Preis\n                                      -------------------\n\n\n                                      JOHN P. MCWEENY\n\n\n\n                                      \/s\/ John P. McWeeny\n                                      -------------------\n\n \n                                SPOUSAL CONSENT\n\n\n       The undersigned represents that the undersigned is the spouse of\n\n                                Joseph A. Preis\n\nand that the undersigned is familiar with the terms of the Exchange Agreement\nattached hereto and all related agreements and instruments executed pursuant to\nor in connection with the Exchange Agreement (together the \"Agreements\").  The\nundersigned hereby agrees that the interest of the undersigned's spouse in all\nproperty which is the subject of such Agreements shall be irrevocably bound by\nthe terms of such Agreements and by any amendment, modification, waiver or\ntermination signed by the undersigned's spouse . The undersigned further agrees\nthat the undersigned's community property interest, if any, in all property\nwhich is the subject of such Agreements shall be irrevocably bound by the terms\nof such Agreements, and that such Agreements shall be binding on the executors,\nadministrators, heirs and assigns of the undersigned. The undersigned further\nauthorizes the undersigned's spouse to amend, modify or terminate such\nAgreements, or waive any rights thereunder, and that each such amendment,\nmodification, waiver or termination signed by the undersigned's spouse shall be\nbinding on the community property interest, if any, of the undersigned in all\nproperty which is the subject of such Agreements and on the executors,\nadministrators, heirs and assigns of the undersigned, each as fully as if the\nundersigned had signed such amendment, modification, waiver or termination.\n\n\nDated: March 28, 2001\n\n\n\n                                                    \/s\/ Carolyn Obstfeld Preis\n                                                   -----------------------------\n                                                   Name:  Carolyn Obstfeld Preis\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7044],"corporate_contracts_industries":[],"corporate_contracts_types":[9622,9625],"class_list":["post-43396","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cendant-corp","corporate_contracts_types-planning","corporate_contracts_types-planning__exchange"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43396","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43396"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43396"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43396"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43396"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}