Exhibit 10.8
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March [ ], 2000 by
and between Cendant Corporation, a Delaware corporation ( "Cendant"), and
Liberty Digital, Inc., a Delaware corporation ("Liberty Digital").
1. INTRODUCTION. Cendant is a party to a Purchase Agreement
(the "Purchase Agreement") with Liberty Digital, pursuant to which Cendant has
agreed, among other things, to issue to Liberty Digital shares of a new series
of Cendant common stock, par value $.01 per share (the "Xxxx.xxx Stock"). This
Agreement shall become effective upon the issuance of such shares to Liberty
Digital pursuant to the Purchase Agreement (the date of such issuance being the
"Closing Date"). 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 REGISTRATION ON REQUEST.
(a) REQUEST. Subject to Section 2.5, Liberty Digital may
make up to (2) written requests that Cendant effect the registration under the
Securities Act of all or part of the Registrable Securities (a "Demand
Registration"). Any request for a Demand Registration will specify the aggregate
number of Registrable Securities proposed to be sold and the intended method of
disposition thereof. Cendant will, subject to the terms of this Agreement, use
reasonable efforts to effect such registration under the Securities Act of:
(i) the Registrable Securities which Cendant has been
so requested to register by Liberty Digital for disposition in
accordance with the intended method of disposition stated in such
request; and
(ii) all securities which Cendant may elect to
register in connection with the offering of Registrable Securities
pursuant to this Section 2.1,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities and the
additional securities
referred to in clause (ii) above, if any, so to be registered, PROVIDED that
Cendant shall not be required to effect any registration of Registrable
Securities pursuant to this Section 2.1 unless the aggregate value of the
Registrable Securities requested to be registered by Liberty Digital is equal to
or greater than $10 million.
(b) REGISTRATION STATEMENT FORM. Registrations under
Section 2.1(a) shall be on such appropriate registration form of the Commission
(i) as shall be selected by Cendant and (ii) as shall permit the disposition of
such Registrable Securities in accordance with the intended method or methods of
disposition specified in the request for such registration.
(c) EXPENSES. Cendant shall pay any Registration Expenses
(excluding underwriting discounts and commissions, the fees of Liberty Digital's
counsel and transfer taxes, if any) in connection with each registration
requested under Section 2.1(a). Underwriting discounts and commissions and
transfer taxes (if any) in connection with each such registration shall be
allocated PRO RATA among all persons on whose behalf securities of Cendant are
included in such registration, on the basis of the respective amounts of the
securities then being registered on their behalf.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration
requested pursuant to Section 2.1(a) shall not be deemed to have been effected
(i) unless a registration statement with respect thereto has become effective,
PROVIDED that a registration which does not become effective after Cendant has
filed a registration statement with respect thereto solely by reason of the
refusal to proceed of Liberty Digital (other than a refusal to proceed based
upon the advice of counsel to Liberty Digital relating to a matter with respect
to Cendant, in which case the registration shall be deemed not to have been
effected) shall be deemed to have been effected by Cendant at the request of
Liberty Digital, (ii) if, after it has become effective, such registration
becomes subject to, for longer than 60 days, any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court for
any reason which would prevent the effectiveness of the registration statement
or (iii) the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied, other than by reason of an act or omission by Liberty Digital.
(e) SELECTION OF UNDERWRITERS. If a registration pursuant
to Section 2.1(a) involves an underwritten offering, the underwriter or
underwriters thereof shall be selected by Cendant, provided that if Liberty
Digital reasonably objects to the qualifications of such underwriter or
underwriters, Cendant shall select one or more underwriters other than the
underwriter or underwriters to which objection was so made.
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(f) PRIORITY IN REQUESTED REGISTRATIONS. If a registration
pursuant to Section 2.1(a) involves an underwritten offering, and the managing
underwriter shall advise Cendant in writing (with a copy to Liberty Digital)
that, in its opinion, the number of securities requested to be included in such
registration (including securities of Cendant which are not Registrable
Securities) exceeds the number which can be sold in such offering, Cendant will
include in such registration, to the extent of the number which Cendant is so
advised can be sold in such offering, (i) first, Registrable Securities
requested to be included in such registration by Liberty Digital and (ii)
second, securities Cendant proposes to sell. If any shares requested to be
included in such registration by Liberty Digital are excluded from registration,
then Liberty Digital shall have the right to withdraw all, or any part, of its
shares from such registration and if all shares are withdrawn in full such
Demand Registration shall not be deemed to have been effected and will not count
as a Demand Registration.
2.2 INCIDENTAL REGISTRATION. Subject to Section 2.5, if
Cendant at any time after the Closing Date proposes to register any shares of
Xxxx.xxx Stock under the Securities Act (other than on Form S-4 or S-8 or any
successor or similar forms and other than pursuant to Section 2.1), whether or
not for sale for its own account, it will each such time give prompt written
notice to Liberty Digital of its intention to do so and of Liberty Digital's
rights under this Section 2.2; PROVIDED that Cendant will not give such notice
and will have no obligation to effect any registration of any Registrable
Securities under this Section 2.2 if the proposed registration is pursuant to an
agreement in effect on the date hereof which prohibits other holders of shares
of Xxxx.xxx Stock from participating in such registration. Upon the written
request of Liberty Digital 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 Liberty Digital 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 2.4 Liberty
Digital 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 Liberty Digital, to the extent required 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 Xxxx.xxx
Stock which Cendant proposes to register (whether or not for sale for its own
account); PROVIDED, 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
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to register or to delay registration of such securities, Cendant may, at its
election, give written notice of such determination to Liberty Digital 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), without prejudice, however, to the rights of Liberty
Digital to request that such registration be effected as a Demand Registration,
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 such other securities. No registration effected under this
Section 2.2 shall relieve Cendant of its obligation to effect any Demand
Registration, nor shall any such registration hereunder be deemed to be a Demand
Registration. Cendant will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.2.
2.3 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 Sections 2.1 and
2.2, Cendant shall:
(i) prepare and file (in the case of a Demand
Registration, such filing to be made within 60 days after the initial
request of Liberty Digital 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 of Cendant or any of its subsidiaries and Cendant
shall have determined that such disclosure is not in the best interests
of Cendant (any such determination to be made by resolution of the
Board of Directors 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 2.2, its securities which are Registrable Securities) at any
time prior to the effective date of the registration statement relating
thereto;
(ii) subject to Section 2.1(d), 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
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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 in accordance with
the intended methods of disposition set forth in such registration
statement or (B) the expiration of 90 days after such registration
statement becomes effective;
(iii) furnish to Liberty Digital 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 Liberty Digital may reasonably
request in order to facilitate the public sale or other disposition of
the Registrable Securities;
(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 Liberty Digital 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 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 Liberty Digital and the managing
underwriter or underwriters, if any, promptly and confirm such advice
in writing promptly thereafter:
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(A) when the registration statement, the
prospectus or any prospectus supplement related thereto or
post-effective 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 2.4
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 Liberty Digital, 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
Liberty Digital 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;
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(viii) use its reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
registration statement at the earliest possible moment;
(ix) cause the Registrable Securities included in any
registration statement to be (A) listed on each securities exchange, if
any, on which the same securities issued by Cendant are then listed, or
(B) authorized to be quoted and/or listed (to the extent) applicable on
the NASDAQ National Market if the Registrable Securities so qualify;
(x) cooperate with Liberty Digital and each
underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities
Dealers, Inc. ("NASD");
(xi) during the period when a prospectus is required
to be delivered under the Securities Act, promptly file all documents
required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange act; and
(xii) 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.
Cendant may require Liberty Digital to furnish Cendant such information
regarding the sellers and the distribution of the Registrable Securities as
Cendant may from time to time reasonably request in writing.
Cendant will not file any registration statement under Section
2.1 or amendment thereto or any prospectus or any supplement thereto (excluding
documents incorporated by reference which constitute required reports under the
Exchange Act) to which Liberty Digital shall reasonably object, PROVIDED that
Cendant may file such document in a form required by law or upon the advice of
its counsel.
At least two days prior to any disposition of Registrable
Securities by Liberty Digital, Liberty Digital will orally advise Cendant of the
dates on which such disposition is expected to commence and terminate, the
number of Registrable Securities
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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 Liberty Digital shall reasonably request (subject to the proviso of
Section 2.3(iv)).
Liberty Digital 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
2.3, Liberty Digital will forthwith discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until Liberty Digital's receipt of the copies of the supplemented or
amended prospectus contemplated by subdivisions (vi) or (vii) of this Section
2.3 and, if so directed by Cendant, will deliver to Cendant (at Cendant's
reasonable expense) all copies, other than permanent file copies, then in
Liberty Digital's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
Liberty Digital 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 person to purchase any securities of Cendant other than as permitted
under the Exchange Act.
2.4 UNDERWRITTEN OFFERINGS.
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering pursuant to a Demand Registration,
Cendant will enter into an underwriting agreement with such underwriters for
such offering, such agreement to be reasonably satisfactory in substance and
form to Cendant and Liberty Digital, and to contain such representations and
warranties by Cendant and such other terms as are generally prevailing in
agreements of such type, including, without limitation, indemnities
substantially the same as those provided in Section 2.6. Liberty Digital will
cooperate with Cendant in the negotiation of the underwriting agreement
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and will give consideration to the reasonable suggestions of Cendant regarding
the form thereof. Liberty Digital shall be a party to such underwriting
agreement.
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. If Cendant at any
time proposes to register any shares of Xxxx.xxx Stock under the Securities Act
as contemplated by Section 2.2 and such securities are to be distributed by or
through one or more underwriters, Cendant will, if requested by Liberty Digital
as provided in Section 2.2 and subject to the provisions of Section 2.3, use its
reasonable efforts to arrange for such underwriters to include all the
Registrable Securities to be offered and sold by Liberty Digital among the
securities to be distributed by such underwriters, PROVIDED that if the managing
underwriter of such underwritten offering shall inform Liberty Digital 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 2.2 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 Liberty Digital 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 Liberty Digital 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.
Liberty Digital shall be a party to the underwriting agreement between Cendant
and such underwriters. If as a result of the provisions of this Section 2.4(b)
Liberty Digital shall not be entitled to include all Registrable Securities in a
registration that it has requested to be so included, Liberty Digital may
withdraw its request to include Registrable Securities in such registration
statement prior to its effectiveness provided such withdrawal is made within 1
business day of Liberty Digital's receipt of notice of such event.
(c) HOLDBACK AGREEMENT. Liberty Digital 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
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successor provision) under the Securities Act of or otherwise dispose of any
shares of Xxxx.xxx Stock, during the period of not more than 180 days after any
underwritten registration of Xxxx.xxx Stock pursuant to Section 2.1 or 2.2 has
become effective, except as part of such underwritten registration, whether or
not Liberty Digital participates in such registration. Liberty Digital agrees
that Cendant may instruct its transfer agent to place stop transfer notations in
its records to enforce this Section 2.4(c), provided that in connection with
such underwritten registration (i) each executive officer and director of
Cendant and (ii) each holder of 1% or more of any class of capital stock of
Cendant (who, in the case of (ii) above, is entitled to similar registration
rights granted by Cendant) are subject to restrictions substantially equivalent
to those imposed on Liberty Digital.
(d) PARTICIPATION IN UNDERWRITTEN OFFERINGS. Liberty
Digital agrees that it will complete and execute all questionnaires,
indemnities, underwriting agreements and other documents (other than powers of
attorney) reasonably required and on reasonably acceptable terms under the terms
of any underwriting arrangements.
2.5 RESTRICTIONS ON RESALE.
(a) Notwithstanding anything in this agreement, until the
first anniversary of the Closing Date, Liberty Digital will not sell, transfer
or otherwise dispose of any Registrable Securities. Following the first
anniversary of the Closing Date and until the second anniversary of the Closing
Date, Liberty Digital will not sell, transfer or otherwise dispose of more than
one-half of the Registrable Securities and will not make a request for more than
one Demand Registration. Following the second anniversary of the Closing Date,
Liberty Digital may sell, transfer or otherwise dispose of any or all of the
Registrable Securities. Notwithstanding the foregoing, Liberty Digital may
subject Registrable Securities to liens, pledges or other security interests in
connection with a bona fide financing so long as the pledgee or secured party
executes an instrument reasonably acceptable to Cendant agreeing to be bound by
the restrictions on transfer set forth herein.
(b) In no event will Liberty Digital have any rights under
Sections 2.1 or 2.2 of this agreement until after the closing of an initial
public offering of the Xxxx.xxx Stock.
2.6 INDEMNIFICATION.
(a) INDEMNIFICATION BY CENDANT. In the event of any
registration of any securities of Cendant under the Securities Act, Cendant
will, and
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hereby agrees to, indemnify and hold harmless Liberty Digital, its directors and
officers, and each other Person, if any, who controls Liberty Digital within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which Liberty Digital 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 Liberty Digital 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 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 Liberty Digital specifically stating that
it is for use in the preparation thereof, PROVIDED, FURTHER, that Cendant shall
not be liable to Liberty Digital 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 Liberty Digital'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 Liberty
Digital 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 Liberty Digital after Cendant has notified Liberty Digital, in
accordance with Section 2.3(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 Liberty Digital 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
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securities laws, rules or regulations committed by Liberty Digital (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 Liberty Digital 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 Liberty
Digital or any such director, officer, or controlling Person and shall survive
the transfer of such securities by Liberty Digital.
(b) INDEMNIFICATION BY LIBERTY DIGITAL. 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 Liberty Digital, to indemnify
and hold harmless (in the same manner and to the same extent as set forth in
subdivision (a) of this Section 2.6) 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 Liberty Digital specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, (ii) the use of any
prospectus by or on behalf of Liberty Digital after Cendant has notified Liberty
Digital 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
Liberty Digital 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 Liberty Digital or its representatives,
or (iv) any violation by Liberty Digital 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 2.6(a)
above and as to which Liberty Digital 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 Liberty Digital. Notwithstanding the foregoing, the indemnity
obligation of Liberty Digital pursuant to this Section 2.6(b) shall be limited
to an amount equal to the total proceeds (before deducting underwriting
discounts and commissions and expenses) received by Liberty Digital for the sale
of shares by Liberty Digital in a registration hereunder.
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(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 2.6,
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, enclosing a copy of all papers served, 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 2.6, 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
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability, and a covenant not to xxx, 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 2.6 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 2.6 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 Liberty Digital on the other from the
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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 Liberty
Digital 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 Liberty Digital 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
Liberty Digital. The relative fault of Cendant on the one hand and of Liberty
Digital 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 Liberty
Digital 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 2.6, 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 2.6 had been available under the circumstances.
Cendant and Liberty Digital 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 2.6, 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),
Liberty Digital 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 Liberty Digital from the sale of
Registrable Securities exceeds the amount of any damages that Liberty Digital
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
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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.
XXXX.XXX STOCK: As defined in Section 1.
CENDANT: As defined in the introductory paragraph of this
Agreement.
DEMAND REGISTRATION: A registration under the Securities
Act requested in accordance with Section 2.1.
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 governmental or political subdivision
thereof, a governmental agency or any other entity.
REGISTRABLE SECURITIES: any shares of Xxxx.xxx Stock
issued to Liberty Digital pursuant to the Purchase
Agreement and any securities issued or issuable with
respect to any Xxxx.xxx 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
15
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
Liberty Digital in connection with the registration of any
Registrable Securities or the distribution of such shares;
or (iii) any other out-of-pocket expenses of Liberty
Digital.
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 Liberty Digital.
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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. Except as set forth herein, 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 Liberty Digital shall also be for
the benefit of and enforceable by any wholly owned direct or indirect subsidiary
of Liberty Digital to which Liberty Digital 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. Liberty
Digital shall be entitled to assign all or any part of its rights under this
agreement to any Person to whom Liberty Digital sells, transfers, assigns or
pledges such Registrable Securities without the prior written consent of
Cendant; provided, that in the event of any such assignment, Liberty Digital
shall be appointed as representative of any such assignees for the purpose of
exercising the registration rights provided herein and Cendant shall not be
required to give any Person, other than Liberty Digital, any notice pursuant to
this Agreement or be obligated to take instruction from any Person other than
Liberty Digital.
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.
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.
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10. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between Cendant and Liberty Digital 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/ Xxxxxx X. Xxxx
---------------------------
Name:
Title:
LIBERTY DIGITAL, INC.
By: /s/ Xxx Xxxxxxx
---------------------------
Name: Xxx Xxxxxxx
Title: President
