{"id":43397,"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-services-holdings-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"exchange-agreement-cendant-membership-services-holdings-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/exchange-agreement-cendant-membership-services-holdings-inc.html","title":{"rendered":"Exchange Agreement &#8211; Cendant Membership Services Holdings Inc., Richard Henkin and Sonia Henkin"},"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\"), Richard Henkin\n(\"Richard\"), and Sonia Henkin (\"Sonia\" and together with Richard, the\n\"Sellers\").\n\n          WHEREAS, the Sellers own of 6,358 shares (\"Tracking Stock Shares\") of\nCendant Corporation common stock designated as Move.com Tracking Stock, par\nvalue $0.01 per share (\"Move.com Stock\");\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 and the mutual\nconsents contained herein, the 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 4,631 shares of Homestore Common Stock (the\n\"Homestore Shares\") in exchange for the Tracking Stock Shares. Pursuant to a\nRegistration Rights Agreement, dated as of October 26, 2000 and effective as of\nFebruary 16, 2000, by and between Homestore and Parent (the \"Registration Rights\nAgreement\"), Homestore is required to file a registration statement on Form S-3\nno later than May 17, 2001 for a public offering of the Homestore Shares (the\n\"Shelf Registration\").\n\n \n               1.2  Delivery of Shares.  (a)  At the Closing each of the Sellers\n                    ------------------                                          \nshall deliver to Buyer a validly issued certificate 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 deliver to the Sellers a validly\nissued certificate representing the Homestore Shares duly endorsed in blank or\naccompanied by stock powers duly executed in blank, with all necessary stock\ntransfer stamps affixed.\n\n          2.   THE CLOSING.  Upon the terms and subject to the conditions of \n               -----------                                                   \nthis Agreement, it is intended that the closing of the transactions contemplated\nby this Agreement (the \"Closing\") shall take place on the date of execution of\nthis Agreement at the offices of Skadden, Arps, Slate, Meagher &amp; Flom LLP, Four\nTimes Square, New York, New York 10036, at 10:00 a.m. (local time); provided,\n                                                                    --------\nhowever, if any of the conditions set forth in this Agreement shall not have\n-------\nbeen satisfied or waived as of the date of this Agreement, then the Closing\nshall take place on the third business day after satisfaction of all the\nconditions provided for in Section 5 hereof, or at such other place and time as\nthe parties hereto shall agree in writing (the time and date of such closing\nbeing referred to herein as the \"Closing Date\"). The parties hereto agree to use\ntheir best efforts to have the Closing occur as soon as practicable consistent\nwith the provisions of this Agreement.\n\n          3.   REPRESENTATIONS AND WARRANTIES OF THE SELLERS.  Each of the \n               ---------------------------------------------               \nSellers jointly and severally represent and warrant to Buyer as follows:\n\n               3.1  Authorization.  Each Seller has full power and authority to \n                    -------------                                               \nenter into and to perform its obligation under this Agreement in accordance with\nits terms.\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 obligation of\neach of the Sellers enforceable against the Sellers in accordance with its terms\nsubject to the effects of bankruptcy, insolvency, fraudulent conveyance,\nreorganization, moratorium and other similar laws relating to or affecting\ncreditors' rights generally, to general equity principles (whether considered in\na proceeding in equity or at law) and an implied covenant of good faith and fair\ndealing.\n\n                                       2\n\n \n               3.3  Required Approvals, Notices and Consents.  Except as \n                    ----------------------------------------             \ndescribed herein or in Schedule 3.4 hereof, no consent or approval of, other\naction by, or any notice to, any governmental body or agency, domestic or\nforeign, or any third party is required in connection with the execution and\ndelivery by each of the Sellers of this Agreement or the consummation 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 SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN\n     RESTRICTIONS ON TRANSFER AND VOTING CONTAINED IN STOCKHOLDER AGREEMENT\n     WHICH MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST OF THE HOLDER OR RECORD\n     OF THIS SECURITY TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL\n     OFFICES OF THE CORPORATION.\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 \n\n                                       4\n\n \n               to be appropriate, his representatives, including his own\n               professional, tax and other advisors;\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 is true, complete and correct\n               as of the date of 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 \n                    ---------------------                                     \nmay provide 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 \n\n                                       5\n\n \nconveyance, reorganization, moratorium and other laws relating to or affecting\ncreditors' rights generally, to general equity principles (whether considered in\na proceeding in equity or at law) and an implied covenant of good faith and fair\ndealing.\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 \n                    ----------------------------------------             \ndescribed herein or in Schedule 4.4 hereof, no consent or approval of, other\naction by, or any notice to, any governmental body or agency, domestic or\nforeign, or any third party is required in connection with the execution and\ndelivery by the Buyer of this Agreement or the consummation of the transaction\ncontemplated hereby.\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 date of the Closing Date as though made\non and as of such date and the other party shall have performed all other\nobligations and agreements contained in this Agreement to be performed prior to\nthe Closing.\n\n          6.   MISCELLANEOUS.\n               ------------- \n\n               6.1  Entire Agreement.  This Agreement embodies the entire \n                    ----------------                                      \nagreement and understanding of the parties with respect to the subject matter\nhereof and supersedes any and all prior agreements, arrangements and\nundertakings, whether written or oral, relating to matters provided for herein.\nThere are no provisions, undertakings, representations or warranties relative to\nthe subject matter 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 \n\n                                       6\n\n \nparty incurring such costs and expenses, whether or not the Closing shall have\noccurred.\n\n               6.3  Notices.  Any notice, demand, claim, notice of claim, \n                    -------                                               \nrequest or communication required or permitted to be given under the provisions\nof this Agreement shall be in writing and shall be deemed to have been duly\ngiven if delivered personally by facsimile transmission or sent by first class\nor certified mail, postage prepaid to the following addresses,\n\n          If to the Sellers:\n\n               Homehunters\n               1038 North Fairfax Avenue\n               West Hollywood, California  90046\n               Attention: Richard Henkin\n               Facsimile: (323) 848-8763\n\n          If to Buyer:\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                                       7\n\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 shall 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\n                    ------                                                      \nbe valid 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               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.\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                                       8\n\n \n               6.9  Governing Law.  This Agreement shall be governed by, \n                    -------------                                        \nenforced under and construed in accordance with, the laws of the State of New\nYork, without 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                              RICHARD HENKIN\n\n\n\n                              \/s\/ Richard Henkin\n                              ------------------------------------------\n     \n     \n                              SONIA HENKIN\n     \n     \n     \n                              \/s\/ Sonia Henkin\n                              ------------------------------------------\n\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-43397","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\/43397","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=43397"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43397"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43397"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43397"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}