EXHIBIT 10.1
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made
and entered into as of this 5th day of August, 2003 by and between (a)
Homestore, Inc., (formerly, ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.) a Delaware corporation
("Homestore"), with offices located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Welcome Wagon International, Inc. (as successor-in-interest
to Welcome Wagon Acquisition Corp.), a New York corporation and wholly owned
subsidiary of Homestore ("WW Sub"), with offices located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ on the one hand, and (b) Cendant Corporation, a
Delaware corporation ("Cendant"), with offices located at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Cendant Membership Services Holdings, Inc., a Delaware
corporation ("Cendant Membership"), with offices located at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Century 21 Real Estate Corporation, a Delaware corporation
("Century 21"), with offices located at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Coldwell Banker Real Estate Corporation, a California corporation ("Coldwell
Banker"), with offices located at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ERA
Franchise Systems, Inc., a Delaware corporation ("ERA"), with offices located at
▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, NRT Incorporated, a Delaware corporation
("NRT"), with offices located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
Cendant Mortgage Corporation, a New Jersey corporation ("Cendant Mortgage"),
with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ on the
other hand. Cendant and the other parties referred to in clause (b) above may be
referred to collectively as the "Cendant Parties." All parties to this Agreement
shall at times be referred to individually as a "Party" and collectively as the
"Parties."
WHEREAS, on October 26, 2000, Homestore, Metal Acquisition
Corp., a Delaware corporation ("Metal"), ▇▇▇▇.▇▇▇, Inc., a Delaware corporation
("▇▇▇▇.▇▇▇"), Welcome Wagon International, Inc., a New York corporation
("Welcome Wagon"), WW Sub, Cendant Membership and Cendant entered into an
Agreement and Plan of Reorganization; and
WHEREAS, pursuant to the terms and conditions of the Agreement
and Plan of Reorganization, the board of directors of each of Cendant, ▇▇▇▇.▇▇▇,
Homestore, Metal, Welcome Wagon and WW Sub, agreed that Homestore would acquire
▇▇▇▇.▇▇▇, through a statutory merger of Metal with and into ▇▇▇▇.▇▇▇ with
▇▇▇▇.▇▇▇ continuing as the surviving corporation, and Welcome Wagon through the
statutory merger of WW Sub with and into Welcome Wagon with Welcome Wagon
continuing as the surviving corporation; and
WHEREAS, in Section 3.4 of the Agreement and Plan of
Reorganization, Homestore stated that it had furnished or made available to
Cendant true and complete copies of all reports or registration statements (the
"SEC Documents") filed by Homestore since August 7, 1999 with the Securities and
Exchange Commission (the "SEC"); and
WHEREAS, in the Agreement and Plan of Reorganization,
Homestore represented and warranted that the SEC Documents complied in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as the case may be; and
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WHEREAS, in the Agreement and Plan of Reorganization,
Homestore represented and warranted that none of the SEC Documents contained any
untrue statements of a material fact or omitted to state a material fact
required to be stated or necessary to make the statements made therein, in light
of the circumstances in which they were made, not misleading, except to the
extent corrected by a document subsequently filed with the SEC; and
WHEREAS, in the Agreement and Plan of Reorganization,
Homestore represented and warranted that the financial statements included in
the SEC Documents complied as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto and were prepared in accordance with GAAP consistently
applied (except as may be indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC); and
WHEREAS, in the Agreement and Plan of Reorganization,
Homestore represented and warranted that its SEC Documents presented fairly the
consolidated financial position of Homestore at the dates thereof and the
consolidated results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal audit adjustments); and
WHEREAS, in Section 3.12 of the Agreement and Plan of
Reorganization, Homestore represented and warranted that none of the
representations or warranties made in the Agreement and Plan of Reorganization
contained any untrue statements of a material fact or omitted to state any
material fact necessary in order to
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make the statements, in the light of the circumstances under which they were
made, not misleading; and
WHEREAS, concurrently with the execution of the Agreement and
Plan of Reorganization, some or all of the Parties, as the case may be, entered
into various ancillary commercial contracts, including the October 26, 2000
Master Operating Agreement between Homestore, ▇▇▇▇.▇▇▇, Cendant, Century 21,
Coldwell Banker and ERA, the October 26, 2000 NRT Listing Agreement between
Homestore and NRT, the October 26, 2000 Marketplace Agreement between Homestore
and Cendant, the October 26, 2000 Marketplace Agreement between Homestore and
ERA, the October 26, 2000 Marketplace Agreement between Homestore and Coldwell
Banker, the October 26, 2000 Marketplace Agreement between Homestore and Century
21, and the October 26, 2000 Web Marketing Agreement between Homestore and
Cendant Mortgage. The agreements listed above shall at times be referred to
individually as an "Ancillary Agreement" and collectively as the "Ancillary
Agreements"; and
WHEREAS, concurrently with the execution of the Agreement and
Plan of Reorganization, Homestore, Cendant and certain Shelf Stockholders
entered into a Registration Rights Agreement (the "Registration Rights
Agreement"); and
WHEREAS, concurrently with the execution of the Agreement and
Plan of Reorganization, Homestore and Cendant Corporation entered into a
Stockholder Agreement (the "Stockholder Agreement"); and
WHEREAS, in consideration of the transactions contemplated by
the Agreement and Plan of Reorganization, Cendant Membership received 26,275,602
shares of Homestore common stock (the "Shares"); and
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WHEREAS, on or about December 21, 2001, Homestore announced
that the Audit Committee of its Board of Directors was conducting an inquiry
into Homestore's accounting practices and that Homestore would have to restate
certain of its financial statements; and
WHEREAS, in a filing with the SEC on Form 10-K/A on March 12,
2002, Homestore issued restated financial statements for the year ended December
31, 2000 and in filings with the SEC on Forms 10-Q/A on March 29, 2002,
Homestore issued restated financial statements for the quarterly periods ended
March 31, 2001, June 31, 2001 and September 30, 2001 (collectively the "Restated
Financial Statements"); and
WHEREAS, in a letter dated February 8, 2002, Cendant gave
Homestore written notice of Homestore's alleged breach of the various
representations and warranties contained in the Agreement and Plan of
Reorganization; and
WHEREAS, the Parties desire to settle their dispute with
respect to the foregoing matters on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and the
mutual promises set forth herein and intending to be legally bound thereby, the
Parties agree as follows:
1. NO ADMISSIONS. By entering into this Agreement, the Parties
are not admitting any wrongdoing or liability with respect to any actual or
potential dispute between them.
2. THE STOCKHOLDER AGREEMENT. The Stockholder Agreement dated as
of October 26, 2000, by and between Homestore and Cendant is hereby terminated
effective on the date of execution of this Agreement and Homestore shall, within
15 days after the
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execution of this Agreement, cause its transfer agent to remove from the stock
certificates evidencing the Shares, including, without limitation, shares held
by Cendant Membership and the Cendant Charitable Trust, any legend referring to
the Stockholders Agreement or issue to Cendant Membership or the Cendant
Charitable Trust, as the case may be, new certificates free of such legend.
3. THE REGISTRATION RIGHTS AGREEMENT. The Registration Rights
Agreement, dated as of October 26, 2000 by and between Homestore, Cendant and
certain Shelf Stockholders, is hereby terminated as between Cendant, on one
hand, and Homestore, on the other hand, on the date of execution of this
Agreement, provided that such termination shall not affect the rights and
obligations between Homestore and the Shelf Stockholders, as such term is
defined in the October 26, 2000 Registration Rights Agreement. Simultaneously
with the execution of this Agreement, the Parties have executed a new
Registration Rights Agreement in the form attached hereto as Exhibit A (the "New
Registration Rights Amendment").
4. LISTINGS LICENSE AGREEMENT. Simultaneously with the execution
of this Agreement, the Parties have executed the Listings License Agreement in
the form attached hereto as Exhibit B (the "Listings License Agreement").
5. THE SOURCE CODE LICENSE AND MAINTENANCE SERVICES AGREEMENT.
Simultaneously with the execution of this Agreement, the Parties have executed
the Source Code License and Maintenance Services Agreement, including all
exhibits, attached hereto as Exhibit C.
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6. THE OPTION AGREEMENT. Simultaneously with the execution of
this Agreement, the Parties have executed the Option Agreement attached hereto
as Exhibit D.
7. BROKER INCENTIVES. Within thirty days from the date hereof,
Homestore shall provide each affiliated office of ERA, Century 21, and Coldwell
Banker, including offices owned and operated by the NRT (collectively, the
"Cendant Brokers"), a coupon redeemable for one free copy of the ▇▇▇▇▇▇▇.▇▇▇
Marketing System Implementation Kit, Office Manager Edition, which has been
customized for the Brand with which that office is affiliated. The kit shall
include a $100 discount certificate, which may be applied to the purchase of any
▇▇▇▇▇▇▇.▇▇▇ Broker or Office product. Each Agent of the Cendant Brokers shall
also receive a coupon for one free copy of the ▇▇▇▇▇▇▇.▇▇▇ Marketing System
Implementation Kit, Agent Edition, likewise customized for the Brand with which
that Agent is affiliated, and also to include a $25 discount certificate
applicable to the purchase of any ▇▇▇▇▇▇▇.▇▇▇ Agent product. The forgoing offers
shall be valid for one year following the date hereof, and shall not apply to
TOP PRODUCER, WyldFyre, or Homestore Virtual Tour products.
8. A. TERMINATION OF ANCILLARY AGREEMENTS. Each of the Ancillary
Agreements is hereby terminated in its entirety effective on the date of
execution of this Agreement.
B. ACKNOWLEDGEMENT OF PAYMENT. Homestore acknowledges payment
and full satisfaction of all payments that are currently due or may be due and
owing under any of the Ancillary Agreements or any other agreement relating to
the Agreement and Plan of Reorganization. As of the date of this Agreement,
Homestore acknowledges that
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Cendant does not owe Homestore any sums of money under any agreement, whether
written or oral, except as set forth in Exhibit E.
9. ▇▇▇▇▇▇ ▇▇▇▇▇▇ INSURANCE POLICIES. Homestore represents and
warrants to Cendant that pursuant to that certain letter agreement, dated June
27, 1995, by and between Welcome Wagon and Cendant, on one hand, and The ▇▇▇▇▇▇
▇▇▇▇▇▇ Irrevocable Trust No. 1, The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust No. 2 and
The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Children's Trust, on the other hand, pertaining to
the life insurance policies benefiting ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust No. 1, the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable
Trust No. 2 and the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Children's Trust, and each of
their respective trustees, beneficiaries, affiliates, successors and/or
replacements as trustees (the "▇▇▇▇▇▇ Insurance Letter"), the maximum remaining
obligations to pay insurance premiums is $1,552,518 payable to New York Life
Insurance Company, Manufacturers Life Insurance Company, and Pacific Mutual Life
Insurance Company, which will constitute full satisfaction of the obligations of
Welcome Wagon (formerly GETKO Group, Inc.) and Cendant (formerly CUC
International, Inc.) pursuant to the ▇▇▇▇▇▇ Insurance Letter. Contemporaneously
with the execution of this Settlement Agreement, Homestore has paid $1,552,518
in premiums in satisfaction of the obligations of Welcome Wagon and Cendant
under the ▇▇▇▇▇▇ Insurance Letter. Homestore shall use its commercially
reasonable efforts to obtain a release or other acknowledgement of the
satisfaction of the obligations of Cendant (and its affiliates and their
respective predecessors) within 30 days from its obligations under the ▇▇▇▇▇▇
Insurance Letter.
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10. RELEASE.
10.1 RELEASE BY HOMESTORE. In exchange for the consideration
provided for in this Agreement and the exhibits hereto, Homestore, on behalf of
itself and, to the extent permitted by law, on behalf of each of its respective
directors, managers, officers, shareholders, trustees, employees, attorneys,
insurers, controlling persons, subsidiaries, divisions, affiliates, successors
and assigns (collectively, the "Homestore Related Persons") hereby releases and
forever discharges Cendant and each of the Cendant Parties, their respective
past and present directors, managers, officers, shareholders, trustees,
partners, agents, employees, attorneys, controlling persons, corporations,
subsidiaries, divisions, affiliates, successors and assigns, and each of them,
individually and collectively ("the Cendant Releasees"), from any and all
claims, damages, charges, rights or causes of actions, judgments, jury verdicts
and suits at law, in equity or otherwise, which Homestore or the Homestore
Related Persons now has, ever had, or hereafter shall have, whether known or
unknown, and whether accrued or unaccrued as of the date hereof, arising out of,
relating to or in any manner connected with the Agreement and Plan of
Reorganization, the Registration Rights Agreement, including Amendment No. 1 to
the Registration Rights Agreement, the Ancillary Agreements, and any accounting
irregularity or error by Homestore, any matter, fact or circumstance requiring
or resulting in the Restated Financial Statements, or any act or omission by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as a member of the Board of Directors of Homestore, including
without limitation, any claims for contribution, indemnification or similar
relief in connection with an action entitled In Re: ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., Case
Number 01-CV-11115-MJP ("In Re: Homestore"), in the United States District Court
for the Northern District of California or
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any similar action, and, to the extent permitted by applicable law, each of the
purported claims alleged against ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or Cendant in an action
entitled In re ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Derivative Litigation, Case No. BC 265709
(consolidated with cases BC265710 and BC266237) filed in the Superior Court of
the State of California, County of Los Angeles, and in an action entitled ▇▇▇▇
▇▇▇▇▇ v. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, et. al., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇.
10.2 CENDANT COVENANT NOT TO INITIATE SUIT. Homestore, without
admitting any liability or wrong doing whatsoever, agrees and acknowledges that
any action commenced and prosecuted by Cendant, on its own behalf, against
Homestore asserting claims arising out of Cendant's acquisition of the Shares
and the Restated Financial Statements, as well as any resulting publicity
concerning such an action, would likely have a material adverse affect on
Homestore and its business. Accordingly, in exchange for the consideration
provided for in this Agreement and the exhibits hereto, except as provided for
in clause c. below, Cendant, including the Cendant Parties, hereby covenants
that they will not initiate or bring on their own behalf, or assign to any other
party, or permit any party to bring on their behalf, or otherwise themselves
prosecute or assert in any manner, any claim or cause of action, arising under
federal or state statute or common law, whether at law or in equity, against
Homestore (or, subject to clause d. below, against any Homestore Related Party),
whether known or unknown, arising out of, relating to or in any manner connected
with the Agreement and Plan of Reorganization, the SEC Documents, the Ancillary
Agreements, or those matters, facts and circumstances requiring or resulting in
the Restated Financial Statements ("Cendant v. Homestore Claims"), provided,
however, that:
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a. Nothing in this Agreement shall constitute or be deemed to
constitute any release, waiver or other relinquishment or
compromise of any of the Cendant v. Homestore Claims;
provided, however, this clause a. shall in no way limit,
effect or modify the covenant not to initiate, bring, assign,
prosecute or assert any of the Cendant v. Homestore Claims as
provided in the preceding language of this Section 10.2;
b. Nothing in this Agreement shall be deemed to prohibit or
otherwise restrict in any manner Cendant's right to be a
member of any class that may be certified in In Re: Homestore,
including its right to receive distributions of its share of
any settlement or judgment proceeds, which rights Homestore
hereby acknowledges (it being understood that Homestore
expressly denies that it has any liability in In Re:
Homestore). Homestore further agrees that if for any reason
Cendant is not or ceases to be (other than as a result of any
voluntary action on its part such as opting out of the class)
a member of any settlement class that may be certified in In
Re: Homestore as a result of any settlement by Homestore or
any litigation class that may be certified in In Re:
Homestore, to litigate claims against Homestore or if for any
reason any timely and properly documented proof of claim
submitted by Cendant as a member of such class for its pro
rata share of a class fund established as a result of any
settlement by Homestore or verdict against Homestore in In Re:
Homestore (the "Class Fund") in respect of its acquisition of
the Shares is rejected in its entirety, Homestore shall pay or
otherwise provide to Cendant the amount of money and/or other
consideration that Cendant would have been otherwise entitled
to receive from the Class Fund had Cendant been a class member
and such a proof of claim in respect of the Shares had been
accepted in full. Homestore also agrees that if any timely and
properly documented proof of claim submitted by Cendant as a
member of such class in respect of its acquisition of the
Shares is rejected in part, Homestore shall pay and/or provide
to Cendant the difference between (a) what Cendant would have
been entitled to receive from the Class Fund had such proof of
claim been accepted in its entirety; and (b) what Cendant
actually receives as a result of any such Class Fund.
Homestore shall pay such amount and/or provide such other
consideration to Cendant contemporaneously with any
distribution or distributions of the Class Fund to class
members generally; and
c. Nothing in this Agreement shall prohibit Cendant from
initiating claims seeking contribution, indemnification or
similar relief against Homestore in In Re: Homestore or other
similar action, as long as Cendant's recovery from Homestore
or its successors and assigns under any such contribution,
indemnification or similar claim does not exceed any amount
for which Cendant may be determined to be liable as a
defendant in In Re: Homestore or similar action (through
settlement or otherwise), and provided that any good faith
settlement by Cendant or
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▇▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be, of any claims made against
such party in In Re: Homestore or other similar action or
actions shall extinguish all claims for contribution,
indemnification or similar relief by such settling party (i)
as provided by 15 U.S.C. ?78.-4(f)(7)(A); and (ii) as may be
provided by applicable federal or state statute or common law.
Any such settlement shall not be deemed to extinguish any
claim for contribution, indemnity or similar relief by such
settling party otherwise permitted by federal or state statute
or common law against any other person or entity. Cendant will
not assert any such claim against Homestore authorized under
this Section 10.2 unless and until a claim against Cendant is
interposed by the plaintiffs or any other party in In Re:
Homestore or other similar action (i.e., if and when Cendant
is a party defendant, counterclaim defendant or third party
defendant in In Re: Homestore or other similar action).
Nothing in this Agreement is intended to grant Cendant any
contractual right for contribution, indemnity or similar
relief that Cendant would not otherwise have in the absence of
this Agreement.
d. Nothing in this Agreement shall prohibit Cendant from
bringing and prosecuting counterclaims against any Homestore
Related Party that first brings any Cendant v. Homestore
Claims against Cendant (for this purpose, however, claims
encompassed by In Re: Homestore or the derivative litigation
referred to in Section 10.1 above shall not be deemed Cendant
v. Homestore Claims brought by any Homestore Related Party
against Cendant).
This covenant not to initiate suit shall be perpetual and
shall not be subject to, governed or affected in any manner by any statute of
limitations, common law doctrines of laches or similar limitations or time bar,
whether at law or equity.
10.3 THE 1542 WAIVER. Homestore acknowledges that it has been
advised by legal counsel and is familiar with the provision of California Civil
Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND THE CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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Homestore being aware of said code section, hereby expressly
waives any and all rights it may have thereunder, as well as any other statutes
or common law principles of similar effect.
10.3 PARTIES RIGHTS AND LIABILITIES UNDER CERTAIN AGREEMENTS. The
Parties acknowledge and agree that their rights and liabilities as defined in
the Registration Rights Agreements (Exhibit A), the Listings License Agreement
(Exhibit B), the Source Code License and Maintenance Service Agreements (Exhibit
C) and the Option Agreement (Exhibit D), are specifically set forth in those
agreements. Accordingly, any breach of those certain agreements shall not be a
defense to or excuse of performance of this Agreement or invalidate the release
of Cendant or the Cendant Parties in Section 10.1 or the covenant not to ▇▇▇
Homestore in Section 10.2. Similarly, failure to obtain a release of Cendant
under the ▇▇▇▇▇▇ Insurance Letter shall not be a defense to or excuse the
performance of this Agreement or invalidate Section 10.2.
11. COUNTERPARTS. This Agreement may be signed in counterparts,
and shall become effective as if executed in a single, complete document as of
the execution date upon its execution by all Parties. Facsimile signatures of
the undersigned Parties will have the same force and effect as original
signatures.
12. SUBSEQUENT DISCOVERY AND DIFFERING FACT; MISTAKE OF FACT OR
LAW.
12.1 The Parties acknowledge that, except for matters expressly
represented herein, the facts in relation to the claims released by, or subject
to the covenant not to ▇▇▇ under, the terms of this Agreement may turn out to be
different from the facts now known by each Party or its counsel or believed by
such Party or counsel to be true, and each Party therefore expressly assumes the
risk of the existence of differently or presently
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unknown facts, and agrees that this Agreement shall be in all respects effective
and binding despite such difference.
12.2 In entering and making this Agreement, the Parties assumed the
risk of any mistake of fact or of law in that if any Party should subsequently
discover that any fact relied upon by such Party in entering into this Agreement
is not true, or that such Party's understanding of the facts or law was
incorrect, such Party shall not be entitled to set aside this Agreement, or any
portion thereof, by reason thereof. This Agreement is intended to be final and
binding upon the Parties hereto regardless of any mistake of law or of fact or
any other circumstances whatsoever.
13. NON-DISPARAGEMENT. After the date of the execution of this
Agreement, neither Homestore, and Homestore's affiliates, directors, and
officers, on the one hand, nor Cendant and Cendant's affiliates, directors and
officers, on the other hand, shall disparage each other or their products or
services. This Section 13 shall not be deemed to apply in the event that an
indemnification or similar action or complaint for contribution is brought by
any Cendant Party against Homestore in In Re: Homestore or other similar action,
including any public statements made by Cendant or Homesstore relating to such
claim.
14. FALCON. For a period of two (2) years after the date of this
Agreement, Cendant will not develop or promote a product that competes with the
Falcon (as defined in the Source Code License Agreement) product, so long as the
Falcon product is fully functional in accordance with its specifications and
design.
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15. WARRANTIES.
15.1 Each Party represents and warrants to the others that it has
not heretofore directly or indirectly assigned, hypothecated or transferred or
purported to assign, hypothecate or transfer, in whole or in part to any person,
firm, entity, or corporation, any claim, demand, rights, damage, liability,
debt, account, action, cause of action, or any other matter herein released or
discharged, or subject to the covenant not to ▇▇▇, and that they respectively
have the full right and authority to enter into this Agreement. The Parties
agree to indemnify and hold one another harmless against any claim, demand,
right, damage, debt, liability, account, action, cause of action, cost or
expense, including reasonable attorney's fees actually paid or incurred, arising
out of or in connection with any such assignment, hypothecation or transfer or
any such purported or claimed assignment, hypothecation or transfer in violation
of this representation and warranty.
15.2 Each Party represents and warrants to the others that such
Party has the power, authority and ability to execute and deliver this Agreement
and carry out the obligations assumed and promised hereunder, and such Party is
not presently aware of any pending event that could hamper, hinder, delay or
prevent the timely performance of said obligations; provided, however, it is
understood that no Party is warranting that it has the power, authority or
ability to bind persons who are not signatories to this Agreement, other than
those persons who are on the date hereof subsidiaries corporations of persons
who are signatories to this Agreement.
15.3 Each Party represents and warrants that it was represented by
counsel in connection with this Agreement and that each has read and understood
the contents of this Agreement and is entering into it voluntarily.
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16. ACKNOWLEDGEMENT BY THE PARTIES. The Parties agree that the
terms and conditions of this Agreement are the result of negotiations between
the Parties and/or their counsel, and that this Agreement shall not be construed
in favor of or against either Party by reason of the extent to which either
Party or its counsel participated in the drafting of this Agreement.
17. ENTIRE AGREEMENT. Each of the Parties acknowledges and
represents that no promise, representation, or inducement not contained in this
Agreement has been made to such Party and that this Agreement contains the
entire understanding between the Parties with respect to, and contains all terms
and conditions pertaining to, the compromise and settlement of the disputes
referenced herein. Any prior written or oral negotiations or statements
concerning the terms of this Agreement not contained in this Agreement are of no
force or affect whatsoever. In executing this Agreement, the Parties have not
relied and do not rely on any statements, inducements, promises or
representations made by any other Party or their agents, representatives, or
attorneys with regard to the subject matter, basis or effect of this Agreement,
except those specifically set forth herein. The undersigned further acknowledge
that the terms of this Agreement are contractual and not a mere recital.
18. AMENDMENTS. This Agreement may not be changed, altered,
amended or modified except by an instrument in writing duly signed by each of
the Parties. This Agreement may not be discharged except by performances in
accordance with its terms or by a writing signed by each of the Parties.
19. CONFIDENTIAL AGREEMENT. The Parties to this Agreement and
their respective attorneys, agree that the terms, facts and circumstances of
this Agreement are
16
confidential and the Parties and their respective attorneys shall not disclose
any of the terms of this Agreement or the facts and circumstances of the
Agreement in any manner to anyone except: (a) as part of a good faith compliance
with disclosure obligations under applicable law, rules or regulations and then
only to those persons and to the extent necessary to comply with such law, rules
or regulations; or (b) by order or process of a court of competent jurisdiction
or (c) to attorneys, accountants, or other advisors to the extent reasonably
necessary for such advisors to perform their services. If a Party or such
Party's attorney receives a subpoena or other order or process of court
regarding production of this Agreement, that Party or attorney will notify the
other Parties promptly of the subpoena or other order or process of court. Any
Party may seek to appear before such court and resist the disclosure or seek a
protective order covering disclosure of the Agreement.
20. FURTHER ASSURANCES. The Parties agree to execute, acknowledge
and deliver, after the date hereof, without additional consideration, such
further instruments and documents, and to take such further actions, as the
other Parties may reasonably request in order to fulfill the intent of this
Agreement and the transactions contemplated hereby.
21. GOVERNING LAW AND VENUE. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York , without
giving effect to its conflict of laws or rules. The Parties irrevocably consent
to the exclusive jurisdiction of the state and federal courts located in New
York in connection with any action to enforce the provisions of this Agreement.
Any objections to venue before either such court is waived, and each Party
hereto has agreed not to seek dismissal of any such action
17
based on forum non conveniens or any similar doctrine. The provisions of this
Paragraph 21 shall replace or supercede any choice of law or venue provisions in
the Agreement and Plan of Merger and any of the Ancillary Agreements.
22. NO WAIVER. Waiver of a breach of any provision of this
Agreement by any Party hereto or the failure of any Party hereto to insist upon
strict performance of any provision hereof shall not constitute a waiver of any
subsequent breach or any subsequent failure to perform.
23. NOTICES. Any and all notices, requests, demands, or other
communications hereunder shall be in writing and be deemed to have been duly
given (i) when delivered by hand, (ii) one (1) business day after being given to
an express overnight courier, (iii) when sent by confirmed facsimile, with a
copy sent by another means set forth in this Section 10, or (iv) five (5) days
after the day of mailing, when mailed by certified or registered mail, return
receipt requested, postage prepaid, and addressed to the respective parties as
follows, provided that either party may change its address or designee for
notification purposes by giving the other party prior written notice thereof:
Homestore, Inc. Cendant Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer Attention: General Counsel
copy to Attention: General Counsel
Cendant Membership Services
Holdings, Inc.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
18
Century 21 Real Estate Corporation
1 Campus Drive Coldwell Banker Real Estate
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Corporation
Attention: General Counsel ▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
ERA Franchise Systems, Inc.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ NRT Incorporated
Attention: General Counsel ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Cendant Mortgage Corporation Attention: General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Welcome Wagon International
Attention: General Counsel ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
24. PUBLICITY. The Parties hereto agree that no publicity release
or announcement concerning this Agreement or the transactions contemplated
hereby shall be made without advance approval thereof by the Cendant Parties and
Homestore; provided that if any announcement is required by law or regulation or
the rules of any securities exchange or market to be made by any party hereto,
prior to making such announcement, such party will, to the extent practicable,
deliver a draft of such announcement to the other party hereto and shall give
the other party reasonable opportunity to comment thereon. At Cendant's option,
upon execution of this Agreement, the Cendant Parties and Homestore
representatives will consult with each other with respect to the issuance of a
joint statement or press release regarding this Agreement and the transactions
contemplated hereby.
25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by all
Parties and
19
delivered to the other Parties. Each Party shall receive a duplicate original of
the counterpart copy or copies executed by it. For purposes hereof, a facsimile
copy of this Agreement, including the signature pages hereto, shall be deemed to
be an original. Notwithstanding the foregoing, the Parties shall each deliver
original execution copies of this Agreement to one another as soon as
practicable following the execution thereof.
20
IN WITNESS WHEREOF,
by,
HOMESTORE, INC.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ EVP & General Counsel
____________________________ ____________________________
Print Name Print Title
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 8/5/03
____________________________ ____________________________
Signature Date
WELCOME WAGON INTERNATIONAL INC.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ EVP & General Counsel
____________________________ ____________________________
Print Name Print Title
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 8/5/03
____________________________ ____________________________
Signature Date
CENDANT CORPORATION
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV Senior Vice President, Legal
____________________________ ____________________________
Print Name Print Title
/s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV 8/5/03
____________________________ ____________________________
Signature Date
CENDANT MEMBERSHIP SERVICES HOLDINGS, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ EVP-Tax
____________________________ ____________________________
Print Name Print Title
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 8/5/03
____________________________ ____________________________
Signature Date
IN WITNESS WHEREOF,
by,
CENTURY 21 REAL ESTATE CORPORATION
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV Senior Vice President, Legal
____________________________ ____________________________
Print Name Print Title
/s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV 8/5/03
____________________________ ____________________________
Signature Date
COLDWELL BANKER REAL ESTATE CORPORATION
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV Senior Vice President, Legal
____________________________ ____________________________
Print Name Print Title
/s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV 8/5/03
____________________________ ____________________________
Signature Date
ERA FRANCHISE SYSTEMS, INC.
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV Senior Vice President, Legal
____________________________ ____________________________
Print Name Print Title
/s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV 8/5/03
____________________________ ____________________________
Signature Date
NRT INCORPORATED
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV Senior Vice President, Legal
____________________________ ____________________________
Print Name Print Title
/s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV 8/5/03
____________________________ ____________________________
Signature Date
CENDANT MORTGAGE CORPORATION
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV Senior Vice President, Legal
____________________________ ____________________________
Print Name Print Title
/s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, IV 8/5/03
____________________________ ____________________________
Signature Date
EXHIBIT A
[Incorporated by reference to Exhibit 10.2 to Homestore, Inc.'s quarterly
report on Form 10-Q for the period ended June 30, 2003.]
EXHIBIT B
[Incorporated by reference to Exhibit 10.3 to Homestore, Inc.'s quarterly
report on Form 10-Q for the period ended June 30, 2003.]
EXHIBIT C
[Incorporated by reference to Exhibit 10.4 to Homestore, Inc.'s quarterly
report on Form 10-Q for the period ended June 30, 2003.]
EXHIBIT D
[Incorporated by reference to Exhibit 10.5 to Homestore, Inc.'s quarterly report
on Form 10-Q for the period ended June 30, 2003.]
EXHIBIT E
Payment is or will be required by Cendant or a subsidiary thereof pursuant to
each of the following agreements, invoices, order forms, and pricing forms
(except to the extent previously paid):
1. Server Co-Location Agreement, dated October 1, 1999, by and between
WyldFyre Technologies, Inc. and NRT Incorporated.
2. Software License Agreement, dated September 1, 1998, by and between
WyldFyre Technologies, Inc. and NRT Incorporated (as
successor-in-interest to Burnet Realty, Inc.).
3. Custom Software Development and Site License Agreement, dated September
21, 1995, by and between WyldFyre Technologies, Inc. and NRT
Incorporated (as successor-in-interest to Cornish & ▇▇▇▇▇ Residential,
Inc.).
4. Agreement between Cendant and Homestore Sales Company, Inc., pursuant
to which Cendant receives help desk support (and related reporting) for
First Flight and Falcon software products in consideration for $85,000
(USD) per support person, per year. Cendant is obligated to pay for
each calendar quarter in advance. Cendant currently owes $106,250 (USD)
for the current calendar quarter.
5. Agreement between Cendant and Homestore Sales Company, Inc., pursuant
to which Cendant received transition services with respect to the
Easymail software product. Cendant owes a total of $30,320 (USD) for
such transition services, and this amount is now due.
6. Agreement between Cendant and Homestore Sales Company, Inc., pursuant
to which Cendant received copies of the First Flight product in
consideration for shipping charges and a restocking fee. Cendant owes a
total of $5,383 (USD) for such shipping charges, and this amount is now
due. The restocking fee is calculated based upon actual costs, some of
which have not been incurred yet. Cendant will receive an invoice for
the restocking fee after all such costs are incurred.
7. Invoices for Coldwell Banker Hunneman totaling $36,333, as itemized on
Schedule D-1 attached hereto.
8. Order Form executed by Coldwell Banker Hunneman for I-Lead Silver
Homepages, in the amount of $20,571.20. Such Order Form is attached
hereto as Schedule D-2.
9. Pricing Form executed by Coldwell Banker Hunneman for Featured Homes
Deluxe, in the amount of $29,888.20. Such Pricing Form is attached
hereto as Schedule D-3.
10. Invoices for Coldwell Banker Hunneman and NRT Incorporated totaling
$250,794.20, as itemized on Schedule D-4 attached hereto. Each such
invoice is attached to Schedule D-4.
11. Agreement regarding the development and hosting of regional websites
for the following NRT Incorporated metros: New York/New Jersey, San
Francisco/Oakland/San ▇▇▇▇, and Tampa/St. Petersburg. Monthly hosting
fees continue to accrue under this agreement.
12. Invoices for the various NRT Incorporated subsidiaries identified on
Schedule D-5 attached hereto. Schedule D-5 identifies current and past
due amounts with respect to those invoices. Such NRT Incorporated
subsidiaries are to receive one or more of the following products on an
ongoing basis in exchange for a fee: Hotline/IVR, One Place, and/or
Website & Hosting.
13. Agreement between NRT Incorporated and Homestore, Inc. regarding
certain Office iLEAD Silver and Office iLEAD for Multiple MLS products,
effective as of April 1, 2003.
Homestore acknowledges and agrees that it shall be solely responsible for, and
shall indemnify, defend, and hold harmless Cendant with respect to, any amounts
that are or become due and owing to Worldcom, Inc. with respect
telecommunications products and/or services provided by Worldcom, Inc. to
Homestore or a subsidiary thereof under the following Worldcom, Inc. account
numbers: 72630, R0149258, R0268735, and Y0704343 (the "Worldcom Accounts").
Cendant acknowledges and agrees that Homestore shall be entitled to all refunds
or credits provided with respect to the Worldcom Accounts.