Exhibit 10.10
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 28, 2000 by
and between Cendant Corporation, a Delaware corporation ( "Cendant"), and NRT
Incorporated, a Delaware corporation ("NRT").
1. INTRODUCTION. Cendant is a party to a Purchase Agreement
(the "Purchase Agreement") with NRT, pursuant to which Cendant has agreed, among
other things, to issue to NRT shares of a new series of Cendant common stock,
par value $.01 per share (the "▇▇▇▇.▇▇▇ Stock"). This Agreement shall become
effective upon the issuance of such shares to NRT pursuant to the Purchase
Agreement. Certain capitalized terms used in this Agreement are defined in
Section 3 hereof; references to Sections shall be to sections of this Agreement.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 INCIDENTAL REGISTRATION. If Cendant at any time after the
Offering Closing Date proposes to register any shares of ▇▇▇▇.▇▇▇ Stock under
the Securities Act (other than on Form S-4 or S-8 or any successor or similar
forms), whether or not for sale for its own account, it will each such time give
prompt written notice to NRT of its intention to do so and of NRT's rights under
this Section 2.1. Upon the written request of NRT made within 10 business days
after the receipt of any such notice (which request shall specify the
Registrable
Securities intended to be disposed of by NRT and the intended method of
disposition thereof, provided that if the shares to be registered by Cendant are
to be distributed through one or more underwriters as provided in Section 2.3
NRT must agree to distribute such Registrable Securities by or through such
underwriter or underwriters), Cendant will, subject to the terms of this
Agreement, use its reasonable efforts to effect the registration under the
Securities Act of all Registrable Securities which Cendant has been so requested
to register by NRT, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered, by inclusion of such Registrable Securities in
the registration statement which covers the shares of ▇▇▇▇.▇▇▇ Stock which
Cendant proposes to register (whether or not for sale for its own account);
PROVIDED that, prior to the first anniversary of the Offering Closing Date, and
together with all other Registrable Securities disposed of by NRT prior to such
first anniversary, NRT shall have the right to dispose of only up to one half
(1/2) of the Registrable Securities owned by NRT on the Offering Closing Date;
PROVIDED, FURTHER, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, Cendant shall
determine for any reason either not to register or to delay registration of all
such securities, Cendant may, at its election, give written notice of such
determination to NRT and, thereupon, (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), and (ii) in the case of
a determination to delay registering, shall be permitted to delay registering
any Registrable Securities, for the same period as the delay in registering all
such other securities. Cendant will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 2.1.
2.2 REGISTRATION PROCEDURES. If and whenever Cendant is
required to use its reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2.1,
Cendant shall:
(i) prepare and file with the Commission the
requisite registration statement to effect such registration and
thereafter use its reasonable efforts to cause such registration
statement to become and remain effective, PROVIDED, HOWEVER, that
Cendant may postpone the filing or effectiveness of any registration
statement otherwise required to be filed by Cendant pursuant to this
Agreement or suspend the use of any registration statement for a period
of time, not to exceed 180 days in any 12-month period, if Cendant
determines that the filing or continued use of such registration
statement would require Cendant to disclose a material financing,
acquisition or other corporate development and Cendant shall have
determined that such disclosure is not in the best interests of
Cendant; PROVIDED, FURTHER, that Cendant may discontinue any
registration of its securities which are not Registrable Securities
(and, under the circumstances specified in Section 2.1, its securities
which are Registrable Securities) at any time prior to the effective
date of the registration statement relating thereto;
(ii) prepare and file with the Commission 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 and to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement until the earlier of (A) such
time as all of such securities have been disposed of
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in accordance with the intended methods of disposition by NRT set forth
in such registration statement or (B) the expiration of 90 days after
such registration statement becomes effective;
(iii) furnish to NRT 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 contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as NRT may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities owned by
NRT;
(iv) use its reasonable efforts to register or
qualify all Registrable Securities and other securities covered by such
registration statement under such other securities laws or blue sky
laws of such jurisdictions as NRT shall reasonably request, to keep
such registrations or qualifications in effect for so long as such
registration statement remains in effect, and take any other action
which may be reasonably necessary or advisable to enable NRT to
consummate the disposition in such jurisdictions of the Registrable
Securities, except that Cendant shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
or dealer in any jurisdiction wherein it would not but for the
requirements of this subdivision (iv) be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction, to conform its
capitalization or the composition of its assets at the time to the
securities or blue sky laws of such jurisdiction or to consent to
general service of process in any such jurisdiction;
(v) furnish to each underwriter, if an underwritten
offering, customary "cold comfort" letters from its independent
auditors, legal opinions from counsel to Cendant on customary matters,
and such other certificates or other instruments reasonably requested
by such underwriters;
(vi) notify NRT and the managing underwriter or
underwriters, if any, promptly and confirm such advice in writing
promptly thereafter:
(A) when the registration statement, the
prospectus or any prospectus supplement related thereto or
post-effective
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amendment to the registration statement has been filed, and,
with respect to the registration statement or any
post-effective amendment thereto, when the same has become
effective;
(B) of any request by the Commission for
amendments or supplements to the registration statement or the
prospectus or for additional information;
(C) of the issuance by the Commission of any
stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings by any Person
for that purpose;
(D) if at any time the representations and
warranties of Cendant made as contemplated by Section 2.3
below cease to be true and correct; and
(E) of the receipt by Cendant of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(vii) notify NRT, at any time when a prospectus
relating to a registration statement is required to be delivered under
the Securities Act, upon Cendant's discovery that, or upon the
happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an 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 in the light of the circumstances under which
they were made, and as soon as practicable prepare and furnish to NRT
and each underwriter, if any, a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an 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 in the light of
the circumstances under which they were made;
(viii) use its reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
registration statement at the earliest possible moment;
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(ix) otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months,
but not more than eighteen months, beginning with Cendant's first full
calendar quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder; and
Cendant may require NRT to furnish Cendant such information regarding NRT and
the distribution of the Registrable Securities as Cendant may from time to time
reasonably request in writing.
At least one day prior to any disposition of Registrable
Securities by NRT, NRT will orally advise Cendant of the dates on which such
disposition is expected to commence and terminate, the number of Registrable
Securities expected to be sold, the method of disposition and such other
information as Cendant may reasonably request in order to supplement the
prospectus contained in any registration statement in accordance with the rules
and regulations of the Commission. Promptly after receiving such advice, Cendant
will, if necessary, (i) prepare a supplement to such prospectus based upon such
advice and file the same with the Commission pursuant to Rule 424(b) under the
Securities Act and (ii) if necessary, qualify the Registrable Securities to be
sold under the securities or blue sky laws of such jurisdictions in the United
States as NRT shall reasonably request (subject to the proviso of Section
2.3(iv)).
NRT agrees by acquisition of the Registrable Securities that,
upon receipt of any notice from Cendant of the occurrence of any event of the
kind described in subdivisions (vi) or (vii) of this Section 2.2, NRT will
forthwith discontinue its disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until NRT's
receipt of the copies of the supplemented or amended prospectus contemplated by
subdivisions (vi) or (vii) of this Section 2.2 and, if so directed by Cendant,
will deliver to Cendant (at Cendant's reasonable expense) all copies, other than
permanent file copies, then in NRT's possession of the prospectus relating to
such Registrable Securities current at the time of receipt of such notice.
NRT shall, at any time it is engaged in the distribution of
Registrable Securities comply with all applicable laws, including Regulation M
promulgated under the Exchange Act and (i) will not engage in any stabilization
activity in connection with the securities Cendant in contravention of such
rules, (ii) will distribute the Registrable Securities solely in the manner
described in any applicable registration statement and (iii) will not bid for or
purchase any securities of Cendant or attempt to induce any
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person to purchase any securities of Cendant other than as permitted under the
Exchange Act.
2.3 UNDERWRITTEN OFFERINGS.
(a) INCIDENTAL UNDERWRITTEN OFFERINGS. If Cendant at any
time proposes to register any shares of ▇▇▇▇.▇▇▇ Stock under the Securities Act
as contemplated by Section 2.1 and such securities are to be distributed by or
through one or more underwriters, Cendant will, if requested by NRT as provided
in Section 2.1 and subject to the provisions of Section 2.2, use its reasonable
efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by NRT among the securities to be distributed
by such underwriters, PROVIDED that if the managing underwriter of such
underwritten offering shall inform NRT and the holders of any other securities
which shall have exercised, in respect of such underwritten offering,
registration rights comparable to the rights under Section 2.1 by letter of its
belief that inclusion in such underwritten distribution of all or a specified
number of such Registrable Securities or of such other securities so requested
to be included would interfere with the successful marketing of the securities
by the underwriters (such letter to state the basis of such belief and the
approximate number of such Registrable Securities and shares of other securities
so requested to be included which may be included in such underwritten offering
without such effect), then Cendant may, upon written notice to NRT and all
holders of such other securities so requested to be included, exclude PRO RATA
from such underwritten offering (if and to the extent stated by such managing
underwriter to be necessary to eliminate such effect) the number of such
Registrable Securities and shares of such other securities so requested to be
included the registration of which shall have been requested by NRT and by the
holders of such other securities so that the resultant aggregate number of such
Registrable Securities and of such other shares of securities so requested to be
included which are included in such underwritten offering shall be equal to the
approximate number of shares stated in such managing underwriter's letter. NRT
shall be a party to the underwriting agreement between Cendant and such
underwriters.
(b) HOLDBACK AGREEMENT. NRT agrees by acquisition of the
Registrable Securities, if so required by the managing underwriter, not to sell,
make any short sale of, loan, grant any option for the purchase of, effect any
public sale or distribution of, make any sale or distribution pursuant to Rule
144 (or any successor provision) under the Securities Act of or otherwise
dispose of any securities of Cendant, during the period of not more than180 days
after any underwritten registration pursuant to Section 2.1 has become
effective, except as part of such underwritten registration, whether or not NRT
participates in such registration. NRT agrees that Cendant may in-
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struct its transfer agent to place stop transfer notations in its records to
enforce this Section 2.3(c).
(c) PARTICIPATION IN UNDERWRITTEN OFFERINGS. NRT may not
participate in any underwritten offering hereunder unless NRT completes and
executes all questionnaires, indemnities, underwriting agreements and other
documents (other than powers of attorney) required under the terms of any
underwriting arrangements.
2.4 RESTRICTIONS ON RESALE.
(a) Until the first anniversary of the Offering Closing
date, NRT agrees not to sell, transfer or otherwise dispose of Registrable
Securities other than pursuant to section 2.1 of this Agreement.
(b) In no event will NRT have any rights under Section 2.1
of this agreement until after the closing of an initial public offering of the
▇▇▇▇.▇▇▇ Stock.
2.5 INDEMNIFICATION.
(a) INDEMNIFICATION BY CENDANT. In the event of any
registration of any securities of Cendant under the Securities Act, Cendant
will, and hereby agrees to, indemnify and hold harmless NRT, its directors and
officers, and each other Person, if any, who controls NRT within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which NRT or any such director or officer or controlling Person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (x) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or (y) alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
Cendant will reimburse NRT and each such director, officer, and controlling
Person for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding, PROVIDED that Cendant shall not be liable in any such case
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such
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registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to Cendant through an instrument duly
executed by NRT specifically stating that it is for use in the preparation
thereof, PROVIDED, FURTHER, that Cendant shall not be liable to NRT in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of NRT's failure to send or
give a copy of the final prospectus, as the same may be then supplemented or
amended, within the time required by the Securities Act to the Person asserting
the existence of an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus; and PROVIDED, FURTHER, that Cendant shall
not be liable to NRT in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based (i) upon the use of any preliminary final or summary
prospectus by or on behalf of NRT after Cendant has notified NRT, in accordance
with Section 2.2(vii), that such prospectus contains an untrue statement of a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (ii) the use of any final prospectus, as amended or supplemented, by
or on behalf of NRT after such time as the obligation of Cendant to keep the
related registration statement effective has expired or (iii) any violation of
any federal or state securities laws, rules or regulations committed by NRT
(other than any violation that arises out of or is based upon the circumstances
described in clause (x) or (y) above and as to which NRT would otherwise be
entitled to indemnification hereunder). Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of NRT or
any such director, officer, or controlling Person and shall survive the transfer
of such securities by NRT.
(b) INDEMNIFICATION BY THE NRT. Cendant may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to this Agreement, that Cendant shall have received an
undertaking satisfactory to it from NRT, to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 2.5) Cendant, each director of Cendant, each officer of Cendant and each
other Person, if any, who controls Cendant within the meaning of the Securities
Act, with respect to (i) any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to Cendant through an instrument duly executed by NRT
specifically stating that it is for use in the preparation of such registration
statement,
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preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement, (ii) the use of any prospectus by or on behalf of NRT after Cendant
has notified NRT that such prospectus contains an untrue statement of material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, (iii) the failure to send or deliver to a
Person to whom NRT sells Registrable Securities at or prior to the written
confirmation of sale, a copy of the final prospectus or of the final prospectus
as then amended or supplemented, whichever is most recent, if Cendant has
previously furnished copies thereof to NRT or its representatives, or (iv) any
violation by NRT of any federal or state securities law or rule or regulation
thereunder (other than any violation that arises out of or is based upon
circumstances described in clause (x) or (y) of Section 2.5(a) above and as to
which NRT is entitled to indemnification thereunder). Any such indemnity shall
remain in full force and effect, regardless of any investigation made by or on
behalf of Cendant or any such director, officer or controlling person and shall
survive the transfer of such securities by NRT. Notwithstanding the foregoing,
the indemnity obligation of NRT pursuant to this Section 2.5(b) shall be limited
to an amount equal to the total proceeds (before deducting underwriting
discounts and commissions and expenses) received by NRT for the sale of shares
by NRT in a registration hereunder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 2.5,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action, PROVIDED that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 2.5, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional
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term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability, or a covenant not to ▇▇▇, in respect to such
claim or litigation. No indemnified party shall consent to entry of any judgment
or enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying party.
(d) INDEMNIFICATION PAYMENTS. The indemnification required
by this Section 2.5 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
(e) CONTRIBUTION. If the indemnification provided for in
the preceding subdivisions of this Section 2.5 is unavailable to an indemnified
party in respect of any expense, loss, claim, damage or liability referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such expense, loss, claim, damage or liability (i) in such
proportion as is appropriate to reflect the relative benefits received by
Cendant on the one hand and NRT on the other from the distribution of the
Registrable Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of Cendant on the one hand and of NRT on the other in connection
with the statements or omissions which resulted in such expense, loss, damage or
liability, as well as any other relevant equitable considerations. The relative
benefits received by Cendant on the one hand and NRT on the other in connection
with the distribution of the Registrable Securities shall be deemed to be in the
same proportion as the total net proceeds received by Cendant from the initial
sale of the Registrable Securities by Cendant bear to the gain, if any, realized
by NRT. The relative fault of Cendant on the one hand and of NRT on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission to state a material fact
relates to information supplied by Cendant or by NRT and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, PROVIDED that the foregoing contribution agreement
shall not inure to the benefit of any indemnified party if indemnification would
be unavailable to such indemnified party by reason of the provisions contained
in the first sentence of subdivision (a) of this Section 2.5, and in no event
shall the obligation of any indemnifying party to contribute under this
subdivision (e) exceed the amount that such indemnifying party would have been
obligated to pay by way of indemnification if the indemnification provided for
under subdivisions (a) or (b) of this Section 2.5 had been available under the
circumstances.
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Cendant and NRT agree that it would not be just and equitable
if contribution pursuant to this subdivision (e) were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth in
the preceding sentence and subdivision (c) of this Section 2.5, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (e), NRT
shall not be required to contribute any amount in excess of the amount by which
the total proceeds (before deducting underwriting discounts and commissions and
expenses) received by NRT from the sale of Registrable Securities exceeds the
amount of any damages that NRT has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
3. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
COMMISSION: The Securities and Exchange Commission or any
other Federal agency at the time administering the
Securities Act.
▇▇▇▇.▇▇▇ STOCK: As defined in Section 1.
CENDANT: As defined in the introductory paragraph of this
Agreement.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any
similar Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in
effect at the time. Reference to a particular Section of
the Securities Exchange Act of 1934 shall include a
reference to the comparable Section, if any, of any such
similar Federal statute.
PERSON: A corporation, an association, a partnership, a
limited liability company, an organization, business, an
individual, a
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governmental or political subdivision thereof or a
governmental agency or any other entity.
REGISTRABLE SECURITIES: any shares of ▇▇▇▇.▇▇▇ Stock issued
to NRT pursuant to the Purchase Agreement and any
securities issued or issuable with respect to any ▇▇▇▇.▇▇▇
Stock referred to above by way of stock dividend or stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular
Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall
have become effective under the Securities Act and such
securities shall have been disposed of in accordance with
such registration statement, (b) they shall have been
distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act, (c) they
shall have been otherwise transferred, [new certificates
for them not bearing a legend restricting further transfer
shall have been delivered by Cendant] and subsequent
disposition of them shall not require registration or
qualification of them under the Securities Act or any
similar state law then in force, (d) they become eligible
for resale pursuant to Rule 144(k) (or any successor
provision) under the Securities Act or (e) they shall have
ceased to be outstanding.
REGISTRATION EXPENSES: All expenses incident to Cendant's
performance of or compliance with Section 2, including,
without limitation, all registration, filing and NASD fees,
all stock exchange listing fees, all fees and expenses of
complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger
and delivery expenses, the fees and disbursements of
counsel for Cendant and of its independent public
accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such
performance and compliance and any fees and disbursements
of underwriters customarily paid by issuers or sellers of
securities, but excluding (i) brokerage commissions,
underwriting discounts and commissions and transfer taxes,
if any; (ii) fees and disbursements of counsel or of any
experts retained by NRT in connection with the registration
of any Registrable Securities or
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the distribution of such shares; or (iii) any other
out-of-pocket expenses of NRT.
SECURITIES ACT: The Securities Act of 1933, or any similar
federal statute, and the rules and regulations of the
Commission thereunder, all as of the same shall be in
effect at the time. References to a particular Section of
the Securities Act of 1933 shall include a reference to the
comparable Section, if any, of any such similar federal
statute.
4. AMENDMENTS AND WAIVERS. This Agreement may be amended and
Cendant may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if Cendant shall have obtained the written
consent to such amendment, action or omission to act, of NRT.
5. NOTICES. Except as otherwise provided in this Agreement,
all notices, requests and other communications to any party hereto shall be in
writing and shall be given and addressed to such party in the manner set forth
in the Purchase Agreement or at such other address as such party shall have
furnished to the other party in writing. Each such notice, request or other
communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means (including, without
limitation, by air courier), when delivered at the address specified above.
6. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party, except that the provisions of this Agreement which
are for the benefit of NRT shall also be for the benefit of and enforceable by
any wholly owned direct or indirect subsidiary of NRT to which NRT transfers any
of its Registrable Securities pursuant to the Purchase Agreement. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
7. DESCRIPTIVE HEADINGS. The descriptive headings of the
several Sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
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8. GOVERNING LAW. This agreement shall be governed by,
enforced under and construed in accordance with the laws of the State of New
York, without giving effect to any choice of law provision or rule thereof.
9. COUNTERPARTS. This Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed an original, but
all such counterparts shall together constitute one and the same instrument.
10. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between Cendant and NRT relating to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter.
11. SUBMISSION TO JURISDICTION. Each of the parties hereto
hereby irrevocably and unconditionally consents to 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 this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such courts) and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in Section
5 (or to such other address for notice that such party has given the other party
written notice of in accordance with Section 5) shall be effective service of
process for any litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any litigation arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York or of
the United States of America in each case located in the County of New York and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such litigation brought in any such court has
been brought in an inconvenient forum.
12. SEVERABILITY. If any provision of this Agreement, or the
application of such provisions to any Person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their respective officers hereunto duly authorized
as of the date first above written.
CENDANT CORPORATION
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title:
NRT INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
Title: