As filed with the Securities and Exchange Commission on December 11, 2000
Registration No 333-______
- ------------------------------------------------------------------------------
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CENDANT CORPORATION
(exact name of registrant as specified in its charter)
06-0918165 DELAWARE
(I.R.S. Employer Identification Number) (State or other Jurisdiction
of Incorporation or Organization)
9 WEST 57TH STREET
NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1922
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
JAMES E. BUCKMAN, ESQ.
VICE CHAIRMAN AND GENERAL COUNSEL
CENDANT CORPORATION
9 WEST 57TH STREET
NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1923
(Name, address, including zip code, and telephone number
including area code, of agent for service)
------
Copies to:
VINCENT J. PISANO, ESQ. ERIC J. BOCK, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP SENIOR VICE PRESIDENT,
4 TIMES SQUARE LAW AND SECRETARY
NEW YORK, NEW YORK 10036 CENDANT CORPORATION
(212) 735-3000 9 WEST 57TH STREET
FAX: (212) 735-2000 NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1922
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.
[X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
TITLE OF AMOUNT TO PROPOSED MAXIMUM PROPOSED AMOUNT OF
SECURITIES BE REGISTERED OFFERING PRICE MAXIMUM REGISTRATION
TO BE REGISTERED PER SECURITY(1) AGGREGATE FEE
OFFERING
PRICE
- -------------------------------------------------------------------------------
CD Common Stock, 2,346,515 $9.3125 $21,851,921 $5,769
$0.01 par value
- -------------------------------------------------------------------------------
(1) Pursuant to Rule 457(c), the registration fee is calculated based on
the average of the high and low prices for the common stock, as
reported on the New York Stock Exchange on December 6, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
SUBJECT TO COMPLETION, DATED DECEMBER 11, 2000
PROSPECTUS
2,346,515 SHARES
CENDANT CORPORATION
CD COMMON STOCK
This prospectus relates to the sale by a selling stockholder,
including its transferees, donees, pledgees or successors, of up to
2,346,515 shares of Cendant CD common stock.
The shares are being registered to permit the selling stockholder to
sell the shares from time to time in the public market. The selling
stockholder may sell the shares thorough ordinary brokerage transactions or
through any other means described in the section "Plan of Distribution." We
cannot assure you that the selling stockholder will sell all or a portion
of our CD common stock offered under this prospectus.
For a description of our CD common stock, please refer to the
description of common stock in "Summary Comparison of Terms of Existing
Common Stock with Terms of CD Stock and Move.com Stock" in our Proxy
Statement, dated February 10, 2000, which is incorporated herein by
reference.
Our CD common stock is listed on the New York Stock Exchange under
the trading symbol "CD." The last reported sale price of our CD common
stock on the NYSE on December 8, 2000 was $9.3125.
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 4.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this prospectus is ______, 2000
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. The selling stockholder may not sell
these securities until the registration statement filed with the Securities
and Exchange Commission is declared effective. This preliminary prospectus
shall not constitute an offer to sell or the solicitation of an offer to
buy nor shall there be any sale of these securities in any jurisdiction in
which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
jurisdiction.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS........................................................3
FORWARD-LOOKING INFORMATION..................................................3
RISK FACTORS.................................................................4
THE COMPANY..................................................................5
DIVIDEND POLICY..............................................................8
USE OF PROCEEDS..............................................................8
SELLING STOCKHOLDER..........................................................8
PLAN OF DISTRIBUTION........................................................10
LEGAL OPINIONS..............................................................11
EXPERTS.....................................................................12
WHERE YOU CAN FIND MORE INFORMATION.........................................12
2
ABOUT THIS PROSPECTUS
This prospectus relates to the sale by a selling stockholder of up to
2,346,515 shares of our CD common stock. The selling stockholder may sell
the securities described in this prospectus in one or more offerings. This
prospectus provides you with a general description of the securities the
selling stockholder may offer. Each time the selling stockholder sells
shares of our CD common stock, a prospectus supplement will be provided
that will contain specific information about the terms of that offering to
the extent required. You should read this prospectus and any accompanying
prospectus supplement together with the additional information contained
under the heading "Where You Can Find More Information."
FORWARD-LOOKING INFORMATION
Some of the matters discussed in this prospectus and in the documents
incorporated by reference contain forward-looking statements within the
meaning of the securities laws. Forward- looking statements include terms
such as "may," "will," "expect," "believe," "plan" and other similar terms.
We caution that, while we believe those statements to be based on
reasonable assumptions and make those statements in good faith, there can
be no assurance that the actual results will not differ materially from
these assumptions or that the expectations provided in the forward-looking
statements derived from these assumptions will be realized.
You should be aware of important factors that could have a material
impact on future results. These factors include, but are not limited to:
o the resolution or outcome of the unresolved pending litigation
relating to the previously announced accounting irregularities
and other related litigation;
o uncertainty as to our future profitability;
o our ability to develop and implement operational and financial
systems to manage rapidly growing operations;
o competition in our existing and potential future lines of
business;
o our ability to integrate and operate successfully acquired and
merged businesses and the risks associated with such
businesses, including the acquisitions of Avis Group Holdings,
Inc. and Fairfield Communities, Inc.;
o uncertainty relating to the timing and impact of the proposed
disposition of certain businesses within the Move.com Group and
3
Welcome Wagon International, Inc. and the spin-off of our
individual membership segment and loyalty business;
o our ability to obtain financing on acceptable terms to finance
our growth strategy and to operate within the limitations
imposed by financing arrangements; and
o the effect of changes in current interest rates, particularly
on our mortgage and real estate franchise segments.
RISK FACTORS
Investing in our common stock involves risks. You should carefully
consider the following discussion of risks as well as other information
contained in this prospectus and any accompanying prospectus supplement.
DISCOVERY OF ACCOUNTING IRREGULARITIES AND RELATED LITIGATION AND GOVERNMENTAL
INVESTIGATIONS
Cendant was created in December 1997, through the merger of HFS
Incorporated ("HFS") into CUC International ("CUC") with CUC surviving and
changing its name to Cendant Corporation. On April 15, 1998, Cendant
announced that in the course of transferring responsibility for Cendant's
accounting functions from Cendant personnel associated with CUC prior to
the merger to Cendant personnel associated with HFS before the merger and
preparing for the reporting of first quarter 1998 financial results,
Cendant discovered accounting irregularities in some of the CUC business
units. As a result, Cendant, together with its counsel and assisted by
auditors, immediately began an intensive investigation.
As a result of the findings of the investigations, Cendant restated
its previously reported financial results for 1997, 1996 and 1995 and the
six months ended June 30, 1998.
Since the April 15, 1998 announcement of the discovery of accounting
irregularities in the former business units of CUC, approximately 70
lawsuits claiming to be class actions, three lawsuits claiming to be
brought derivatively on Cendant's behalf and several individual lawsuits
and arbitration proceedings have commenced in various courts and other
forums against Cendant and other defendants by or on behalf of persons
claiming to be stockholders of Cendant and persons claiming to have
purchased or otherwise acquired securities or options issued by CUC or
Cendant between May 1995 and August 1998.
The Securities and Exchange Commission and the United States Attorney
for the District of New Jersey are also conducting investigations relating
to the matters referenced above. As a result of the findings from Cendant's
internal investigations, Cendant made all adjustments considered necessary
by Cendant, which are reflected in its previously filed restated financial
statements for the years ended December 31, 1997, 1996 and 1995 and for the
six months ended June 30, 1998. On June 14, 2000, pursuant to an offer of
settlement made by Cendant, the SEC issued an Order Instituting Public
Administrative Proceedings Pursuant to Section 21C of the Securities
Exchange Act of 1934, Making Findings and Imposing a Cease and Desist
Order. In such Order, the SEC found that Cendant had violated certain
financial reporting provisions of the Securities Exchange Act of 1934 and
ordered Cendant to cease and desist from committing any future violations
of such provisions. No financial penalties were imposed against Cendant.
4
On December 7, 1999, Cendant announced that it reached a preliminary
agreement to settle the principal securities class action pending against
Cendant in the U.S. District Court in Newark, New Jersey, brought on behalf
of purchasers of all Cendant and CUC publicly traded securities, other than
PRIDES, between May 1995 and August 1998. Under the settlement agreement,
Cendant would pay the class members approximately $2.85 billion in cash.
The definitive settlement document was approved by the U.S. District Court
by order dated August 14, 2000. Certain persons who objected to various
aspects of the settlement have appealed the District Court's orders
approving the settlement, the plan of allocation of the settlement fund and
awarding of attorneys' fees and expenses to counsel for the lead
plaintiffs. No appeals challenging the fairness of the $2.85 billion
settlement amount were filed. The U.S. Court of Appeals for the Third
Circuit recently issued a briefing schedule for the appeals. No date for
oral arguments of the appeals has been fixed. Accordingly, Cendant will not
be required to fund the settlement amount of $2.85 billion for some time.
However, as Cendant has previously stated in its public filings, the
settlement agreement required Cendant to post collateral in the form of
credit facilities and/or surety bonds by November 13, 2000, which it has
done.
The settlement does not encompass all litigation asserting claims
associated with the accounting irregularities. Cendant does not believe
that it is feasible to predict or determine the final outcome or resolution
of these unresolved proceedings. An adverse outcome from such unresolved
proceedings could be material with respect to earnings in any given
reporting period. However, Cendant does not believe that the impact of such
unresolved proceedings should result in a material liability to Cendant in
relation to its financial position or liquidity.
THE PRICE OF OUR CD COMMON STOCK IS SUBJECT TO POSSIBLE VOLATILITY
The stock market has from time to time experienced significant price
and volume fluctuations that are unrelated to the operating performance of
particular companies. These broad market fluctuations may adversely affect
the market price of our CD common stock.
THE COMPANY
Cendant is one of the foremost providers of real estate, travel and
direct marketing services in the world. We were created through the merger
of HFS into CUC in December 1997 with the resultant corporation being
renamed Cendant Corporation. We provide the fee-based services formerly
provided by each of CUC and HFS, including travel services, real estate
services and membership-based consumer services, to its customers
throughout the world. From a financial reporting standpoint, we have
separated our business into two groups, Move.com Group, our online
relocation, real estate and home related products and services business,
and Cendant Group, which includes the rest of our businesses and a retained
interest in Move.com Group.
We operate in four principal divisions: travel related services, real
estate related services, direct marketing related services and other
consumer and business services. Our businesses provide a wide range of
complementary consumer and business services, which together represent
eight business segments.
5
o The travel related service businesses facilitate vacation
timeshare exchanges, and franchise car rental and hotel
businesses.
o The real estate related service businesses franchise real
estate brokerage businesses, provide home buyers with
mortgages, assist in employee relocation and provide consumers
with relocation, real estate and home related products and
services through our Move.com network of web sites.
o The direct marketing related service businesses provide an
array of value driven products and services.
o Our other consumer and business services include our tax
preparation services franchise, information technology
services, car parks in the United Kingdom, financial products
and other consumer-related services.
As a franchisor of hotels, residential real estate brokerage offices,
car rental operations and tax preparation services, we license the owners
and operators of independent businesses to use our brand names. We do not
own or operate hotels, real estate brokerage offices, car rental operations
or tax preparation offices. Instead, we provide our franchisee customers
with services designed to increase their revenue and profitability.
Recent Developments
Proposed Avis Acquisition. On November 13, 2000, we announced that we
entered into a definitive agreement to acquire all of the outstanding
shares of Avis Group Holdings, Inc. ("Avis") that are not currently owned
by us at a price of $33.00 per share in cash. Approximately 26 million
outstanding shares of Avis common stock, and options to purchase
approximately 7.9 million additional shares, are not currently owned by us.
Accordingly, the transaction is valued at approximately $937 million,
inclusive of the net cash obligation related to Avis stock options expected
to be cancelled prior to consummation. We anticipate that more than 50% of
the purchase price will be financed from new borrowings available to us and
to PHH Corporation ("PHH"), our wholly-owned subsidiary, and expect that
the remaining amount will be provided either from available cash or from
the issuance of CD common stock. However, the actual funding for the
acquisition will be finalized before the closing of the transaction.
The acquisition will be made by PHH. We currently expect that PHH
will distribute the consumer car rental business to one of our subsidiaries
not within PHH's ownership structure. After the acquisition and the
distribution of the consumer car rental business, PHH will own and operate
the Vehicle Management and Leasing business as well as the Wright Express
fuel card business. The merger is conditioned upon, among other things,
approval of a majority of the votes cast by Avis stockholders who are
unaffiliated with us and also customary regulatory approvals. Although no
assurances can be given, we expect the transaction to close in the first
quarter of 2001.
6
Proposed Fairfield Acquisition. On November 2, 2000, we announced that we
entered into a definitive agreement to acquire all of the outstanding
common stock of Fairfield Communities, Inc. ("Fairfield"), one of the
largest vacation ownership companies in the United States, at $15 per
share, or approximately $635 million in the aggregate. The final
acquisition price may increase to a maximum of $16 per share depending on a
formula based on the average trading price of CD common stock over a twenty
trading day period prior to the date on which Fairfield stockholders meet
to approve the acquisition. The consideration is payable in cash or CD
common stock, or a combination of cash and CD common stock, at the holder's
election. We are not required, however, to pay more than 50% of the
consideration in cash and have the right to substitute cash for any shares
of Fairfield common stock instead of issuing CD common stock. Under the
merger agreement, we can cause Fairfield to transfer Fairfield's real
estate development business ("DevCo.") to a third party or to effect a
distribution of shares of common stock of DevCo. to the shareholders of
Fairfield, in each case, prior to completion of the acquisition. On
December 7, 2000, we delivered to Fairfield the proposed terms and forms of
agreements proposed to be entered into by Fairfield in connection with the
transfer of DevCo. to a third party. Consummation of the acquisition is
subject to customary regulatory approvals. Although no assurance can be
given, we expect to complete the acquisition in the first quarter of 2001.
Homestore/Move.com Transaction. On October 27, 2000, we announced that we
entered into a definitive agreement with Homestore.com, Inc., ("Homestore")
to sell our Internet real estate portal, move.com, certain other businesses
within our Move.com Group segment and Welcome Wagon International, Inc., (a
subsidiary within our diversified services segment) in exchange for
approximately 26 million shares of Homestore common stock valued at
approximately $761 million. We intend on allocating a portion of the
Homestore common stock shares received to existing Move.com common
stockholders and option holders. After such allocation, we expect to retain
approximately 19 or 20 million shares of Homestore common stock.
Consummation of the transaction is subject to certain customary closing
conditions, including Hart Scott Rodino anti-trust approval. Although no
assurances can be given, we expect to complete the transaction during the
first quarter of 2001.
Proposed Membership Spin-Off. On October 25, 2000, we announced that we
intend to distribute 100 percent of the stock of a new company
incorporating our individual membership and loyalty business to our
shareholders in a tax free distribution. We expect the process, which
includes formation of the company, registration of its shares and
distribution of the shares to shareholders, to be completed by mid 2001. As
a result of the foregoing, our membership business has been classified as a
discontinued operation.
We continually explore and conduct discussions with regard to
acquisitions and other strategic corporate transactions in our industries
and in other franchise, franchisable or service businesses in addition to
the transactions previously announced. As part of this regular on-going
evaluation of acquisition opportunities, we currently are engaged in a
number of separate, unrelated preliminary discussions concerning possible
acquisitions. The purchase price for the possible acquisitions may be paid
in cash, through the issuance of CD common stock (which would increase the
number of shares of CD common stock outstanding) or other of our
securities, borrowings, or a combination thereof. Prior to consummating any
such possible acquisition, we will need to, among other things, initiate
7
and complete satisfactorily our due diligence investigations; negotiate the
financial and other terms (including price) and conditions of such
acquisitions; obtain appropriate Board of Directors, regulatory and other
necessary consents and approvals; and, if necessary, secure financing. No
assurance can be given with respect to the timing, likelihood or business
effect of any possible transaction. In the past, we have been involved in
both relatively small acquisitions and acquisitions which have been
significant.
Our principal executive offices are located at 9 West 57th Street,
New York, New York 10019 and our telephone number is (212) 413-1800.
DIVIDEND POLICY
We have never paid a cash dividend on our capital stock. We do not
anticipate paying cash dividends on our capital stock in the foreseeable
future and intend to retain all earnings to finance the operations and
expansion of our business and the repurchase of common stock and debt
reduction. The payment of cash dividends in the future will depend on our
earnings, financial condition and capital needs and on other factors deemed
relevant by our board of directors at that time. For further information
regarding our payment of dividends, see "Summary Comparison of Terms of
Existing Common Stock with Terms of CD Stock and Move.com Stock" in our
Proxy Statement, dated February 10, 2000, which is incorporated herein by
reference.
USE OF PROCEEDS
We will not receive any of the proceeds of sales by the selling
stockholder.
SELLING STOCKHOLDER
The following table presents information with respect to the selling
stockholder and the amount of shares of our CD common stock that it may
offer under this prospectus. The term "selling stockholder" includes donors
and pledgees selling securities received from a named selling stockholder
after the date of this prospectus. The shares of CD common stock offered by
this prospectus were originally sold by a subsidiary of ours in a private
placement, exempt from the registration requirements of the Securities Act.
Pursuant to the purchase agreement dated as of November 16, 2000, Liberty
CNDT purchased 2,346,515 shares of CD common stock from Cendant Stock
Corporation, a wholly owned subsidiary of ours, in exchange for the
surrender of a warrant to purchase 28,956,000 shares of CD common stock, at
an exercise price of $23.00 per share.
Liberty CNDT is a wholly owned subsidiary of Liberty Media
Corporation ("Liberty"). Pursuant to a stock purchase agreement entered
into between Liberty and Cendant on December 15, 1999, Liberty has agreed
to work with us to develop Internet and related opportunities associated
with our travel, mortgage and real estate businesses. These efforts may
include the creation of joint ventures among us, Liberty and others, as
well as equity investments by either Liberty or us in businesses owned by
the other. We and Liberty have also agreed in the stock purchase agreement
to pursue opportunities in the cable industry which leverage our direct
8
marketing resources and capabilities. We have further agreed to assist
Liberty in creating a new venture that will seek to provide broadband
video, voice and data services and content to hotels and their guests on a
worldwide basis, for which we would receive an equity interest in the
venture. Any cooperative efforts between Liberty and us in respect of the
foregoing would require the prior agreement on the terms on which those
efforts would be undertaken.
Dr. John C. Malone, the Chairman and a director of Liberty, is a
member of our Board of Directors.
We have agreed to pay all expenses incurred in connection with the
registration of the sale of the shares of CD common stock owned by Liberty
CNDT, Inc. covered by this prospectus, other than brokerage commissions,
underwriting discounts and commissions, transfer taxes and other
out-of-pocket expenses incurred by Liberty CNDT, Inc in connection with the
sale of these shares.
Since the date that we received information from the selling
stockholder, the selling stockholder identified below may have sold,
transferred or otherwise disposed of all or a substantial portion of the
shares of CD common stock held by it in a transaction or series of
transactions exempt from the Securities Act. Information regarding the
selling stockholder may change from time to time and any changed
information will be set forth in a prospectus supplement to the extent
required.
The selling stockholder may from time to time offer and sell any or
all of the securities under the prospectus. Because the selling stockholder
is not obligated to sell the shares of CD common stock held by it, we
cannot estimate the number of shares of CD common stock that the selling
stockholder will beneficially own after this offering. Beneficial ownership
is based upon 728,958,489 shares of CD common stock outstanding as of
October 31, 2000 as reported in our Quarterly Report on Form 10-Q for the
quarter ending September 30, 2000 dated November 14, 2000, which is
incorporated herein by reference.
Number of Shares of Number of Shares of CD
Name of Selling Common Stock Beneficially Percentage of Common Stock Covered by
Stockholder Owned Prior to this Offering Outstanding this Prospectus
- ----------------- ---------------------------- ----------- -----------------------
Liberty CNDT, Inc. 46,156,979 6.33% 2,346,515
9
PLAN OF DISTRIBUTION
This prospectus, including any amendment or supplement, may be used
in connection with sales of up to 2,346,515 shares of our CD common stock.
The selling stockholder, or its pledgees, assignees, transferees or other
successors in interest may offer its shares of CD common stock at various
times in one or more of the following transactions:
o in exchange or the over-the-counter market transactions;
o in private transactions other than exchange or over-the-counter
market transactions;
o through short sales or put and call option transactions;
o through underwriters, brokers or dealers (who may act as agent
or principal);
o directly to one or more purchasers;
o through agents;
o through distribution by the selling stockholder or its
successor in interest to its members, partners or shareholders;
o in negotiated transactions;
o by pledge to secure debts and other obligations; or
o in a combination of such methods.
The selling stockholder may sell its shares at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices.
The selling stockholder also may resell all or a portion of its CD
common stock in open market transactions in reliance upon Rule 144 under
the Securities Act, provided it meets the criteria and conforms to the
requirements of Rule 144.
The selling stockholder may use underwriters, brokers, dealers or
agents to sell its shares. Any underwriters, brokers, dealers or agent may
receive compensations in the form of discounts, concessions or commissions
from the selling stockholder, the purchaser or such other persons who may
be effecting sales hereunder (which discounts, concessions or commissions
as to particular underwriters, brokers dealers or agents may be in excess
of those customary in the type of transactions involved). Underwriters may
sell the shares of CD common stock to or though dealers, and such dealers
may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agents. The selling stockholder or other persons
effecting sales hereunder, and any such underwriters, brokers, dealers and
agents may be deemed to be "underwriters" within the meaning of the
Securities Act, and any discounts or commissions they receive and any
profit on the sale of the common stock they realize may be deemed to be
underwriting discounts and commissions under the Securities Act. Some sales
may involve shares in which the selling stockholder has granted security
interests and which are being sold because of foreclosure of those security
interests. At the time a particular offering of shares is made and to the
extent required, the aggregate number of shares being offered, the name or
names of the selling stockholder and the terms of the offering, including
the names of the underwriters, broker-dealers or agents, any discounts,
concessions or commissions and other terms constituting compensation from
10
the selling stockholder, and any discounts, concessions or commissions
allowed or re- allowed or paid to broker-dealers, will be set forth in an
accompanying prospectus supplement.
The selling stockholder may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in
short sales of our common stock in the course of hedging the positions they
assume with the selling stockholder. The selling stockholder may also enter
into options or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealer or their
financial institution of the shares of common stock offered hereby, which
shares such broker-dealer or their financial institution may resell
pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
The selling stockholder may offer and sell shares of CD common stock
other than for cash. In such event, any required details of the transaction
will be set forth in a prospectus supplement.
Under the securities laws of certain states, the securities offered
by this prospectus may be sold in those states only through registered or
licenced brokers or dealers. In addition, in certain states the securities
offered by this prospectus may not be sold unless they have been registered
or qualified for sale in such state or an exemption from registration or
qualification is available and is complied with. In connection with any
resales by the selling stockholder, a prospectus supplement, if required,
will be filed under Rule 424(b) under the Securities Act, disclosing the
number of shares involved and other details of such resale to the extent
appropriate.
Under the rules and regulations under the Exchange Act, any person
engaged in a distribution of the shares offered pursuant to this prospectus
may be limited in its ability to engage in market activities with respect
to those shares. Each selling stockholder will be subject to the provisions
of the Exchange Act and the rules and regulations under the Exchange Act,
including Regulation M. Those rules and regulations may limit the timing of
purchases and sales of any shares offered by the selling stockholder
pursuant to this prospectus, which may affect the marketability of the
shares offered by this prospectus.
We may suspend the use of this prospectus by the selling stockholder
under certain circumstances.
Any common stock sold by a selling stockholder pursuant to a
prospectus supplement will be listed on the NYSE, subject to official
notice of issuance.
LEGAL OPINIONS
The validity of the shares of CD common stock offered hereby will be
passed on for us by Eric J. Bock, Esq., Senior Vice President, Law and
Secretary of Cendant. Mr. Bock holds shares of CD common stock and options
to acquire shares of CD common stock.
11
EXPERTS
The consolidated financial statements of Cendant Corporation and our
subsidiaries ("Cendant") as of December 31, 1999 and 1998 and for the three
years ended December 31, 1999, incorporated in this prospectus by reference
from our Current Report on Form 8-K dated November 28, 2000 have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report (which expresses an unqualified opinion and includes explanatory
paragraphs relating to the change in the method of recognizing revenue and
membership solicitation costs as described in Note 1 and the presentation
of the individual membership segment as a discontinued operation as
described in Notes 1 and 4), which is incorporated herein by reference, and
have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission. Our filings with the commission are
available to the public over the Internet at the commission's web site at
http:www.sec.gov. You may also read and copy any document we file at the
commission at the public reference rooms of the commission in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the commission
at 1-800-SEC-0330 for further information on the public reference rooms.
The commission allows us to "incorporate by reference" the
information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus and
information that we file later with the commission will automatically
update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the commission
under sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until all of
the securities offered by this prospectus are sold.
o Annual Report on Form 10-K for the year ended December 31,
1999, filed on March 1, 2000 (excluding Items 6, 7 and 8)
o Quarterly Report on Form 10-Q for the quarter ended September
30, 2000, filed on November 14, 2000
o Quarterly Report on Form 10-Q for the quarter ended June 30,
2000, filed on July 28, 2000
o Quarterly Report on Form 10-Q/A for the quarter ended March 31,
2000, filed on July 28, 2000
o Current Report on Form 8-K dated October 23, 2000
o Current Report on Form 8-K dated October 26, 2000
12
o Current Report on Form 8-K dated October 26, 2000, filed on
November 3, 2000
o Current Report on Form 8-K dated November 17, 2000, filed on
November 20, 2000
o Current Report on Form 8-K dated November 28, 2000, filed on
November 29, 2000 (which includes our restated consolidated
financial statements at December 31, 1999 and 1998 and for each
of the three years in the period ended December 31, 1999)
o The description of our common stock contained in the Proxy
Statement dated February 10, 2000, filed on March 28, 2000
You may request a copy of these filings at no cost, by writing or
telephoning us at the following:
Investor Relations
Cendant Corporation
9 West 57th Street
New York, NY 10019
Telephone: (212) 413-1800
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you
with different information. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information contained or incorporated by
reference in this prospectus is accurate as of any date other than the date
on the front cover of this prospectus.
13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission
Registration Fee..........................$ 5,769
*Accounting Fees and Expenses.............$100,000
*Legal Fees and Expenses..................$100,000
*Miscellaneous............................$200,000
-------
Total Expenses............................$405,769
- ------------
* Estimated for purposes of completing the information required pursuant to
this Item 14.
The Company will pay all fees and expenses associated with filing the
Registration Statement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the General Corporation Law of the State of Delaware
allows a corporation to eliminate the personal liability of directors of a
corporation or its stockholders for monetary damages for a breach of a
fiduciary duty as a director, except where the director breached his duty
of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or
approved a stock repurchase in violation of Delaware corporate law or
obtained an improper personal benefit.
Section 145 of the Delaware General Corporation Law empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation)
by reason of the fact that such person is or was a director, officer,
employee or agent of such corporation or is or was serving at the request
of such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding, provided
that such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interest of the corporation
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe such person's conduct was unlawful. A Delaware corporation
may indemnify directors, officers, employees and other agents of such
corporation in an action by or in the right of a corporation under the same
conditions, except that no indemnification is permitted without judicial
II-1
approval if the person to be indemnified has been adjudged to be liable to
the corporation. Where a director, officer, employee or agent of the
corporation is successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to above or in defense of any claim,
issue or matter therein, the corporation must indemnify such person against
the expenses (including attorneys' fees) which he or she actually and
reasonably incurred in connection therewith.
Section 174 of the General Corporation Law of the State of Delaware
provides, among other things, that a director who willfully or negligently
approves of an unlawful payment of dividends or an unlawful stock purchase
or redemption, may be held liable for such actions. A director who was
either absent when the unlawful actions were approved or dissented at the
time, may avoid liability by causing his or her dissent to such actions to
be entered into the books containing the minutes of the meetings of the
board of directors at the time such action occurred or immediately after
such absent director receives notice of the unlawful acts.
The Registrant's By-Laws contain provisions that provide for
indemnification of officers and directors and their heirs and distributees
to full extent permitted by, and in the manner permissible under, the
General Corporation Law of the State of Delaware.
As permitted by Section 102(b)(7) of the General Corporation Law of
the State of Delaware, the Registrant's Amended and Restated Certificate of
Incorporation contains a provision eliminating the personal liability of a
director to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, subject to some exceptions.
Cendant Corporation maintains, at its expense, a policy of insurance
which insures its directors and officers, subject to exclusions and
deductions as are usual in these kinds of insurance policies, against
specified liabilities which may be incurred in those capacities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT NO. DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Form 10-Q/A for the period March 31, 2000,
dated July 28, 2000).
3.2 Amended and Restated By-Laws of the Registrant
(incorporated by reference to Exhibit 3.2 to the
Registrant's Form 10-Q/A for the Quarterly period ended
March 31, 2000 dated July 28, 2000).
4.1 Form of Certificate for the Company's common stock, par
value $.01 per share. (Incorporated by reference to Exhibit
4.1 to the Company's Form S- 3 Registration Statement No.
333-45227)
II-2
5.1 Opinion of Eric J. Bock, Esq. regarding the legality of the
securities being registered by the Company hereby.*
10.1 Purchase Agreement dated as of November 16, 2000 by and
among Cendant Corporation, Cendant Stock Corporation and
Liberty CNDT, Inc.*
23.1 Consent of Deloitte & Touche LLP related to the financial
statements of Cendant Corporation.*
23.2 Consent of Deloitte & Touche LLP related to the financial
statements of Avis Group Holdings, Inc.*
23.3 Consent of Attorney (see Exhibit 5.1).*
24.1 Power of Attorney (included on signature page).
- ----------------------
* Filed herewith.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1)To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a) (3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement; provided that
II-3
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment will
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time will be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of such registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange act of 1934
(and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement will be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time will
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions referred to in Item 15 hereof, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cendant
Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on
December 7, 2000.
CENDANT CORPORATION
By: /s/ James E. Buckman
------------------------------------------
James E. Buckman
Vice Chairman
General Counsel and Director
Each person whose signature appears below hereby constitutes and
appoints James E. Buckman and Eric J. Bock, and each of them, his true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and his name, place, and stead, in any and all
capacities, to sign any and all (i) amendments (including post-effective
amendments) and additions to this Registration Statement and (ii)
Registration Statements, and any and all amendments thereto (including
post-effective amendments), relating to the offering contemplated pursuant
to Rule 462(b) under the Securities Act of 1933, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents full power and authority to do and perform
each and every act and this requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or his
substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the securities act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------------------------------- ----------------------- ------------------
/s/ Henry R. Silverman December 7, 2000
- ---------------------------------
(Henry R. Silverman) Chairman of the Board,
President, Chief Executive
Officer and Director
II-5
/s/ James E. Buckman December 7, 2000
- ---------------------------------
(James E. Buckman) Vice Chairman, General
Counsel and Director
/s/ Stephen P. Holmes December 7, 2000
- ---------------------------------
(Stephen P. Holmes) Vice Chairman and Director
/s/ David M. Johnson December 7, 2000
- ---------------------------------
(David M. Johnson) Senior Executive Vice
President and Controller
(Principal Financial Officer)
/s/ John McClain December 7, 2000
- ---------------------------------
(John McClain) Senior Vice President and
Controller (Principal
Accounting Officer)
/s/ Myra J. Biblowit December 7, 2000
- ---------------------------------
(Myra J. Biblowit) Director
/s/ Dr. John C. Malone December 7, 2000
- ---------------------------------
(Dr. John C. Malone) Director
/s/ Cheryl D. Mills December 7, 2000
- ---------------------------------
(Cheryl D. Mills) Director
/s/ Leonard S. Coleman December 7, 2000
- ---------------------------------
(Leonard S. Coleman) Director
/s/ Martin L. Edelman December 7, 2000
- ---------------------------------
(Martin L. Edelman) Director
II-6
/s/ Sheli Z. Rosenberg December 7, 2000
- ---------------------------------
(Sheli Z. Rosenberg) Director
/s/ The Rt. Hon Brian Mulroney, P. December 7, 2000
- ---------------------------------
(The Rt. Hon. Brian Mulroney,
P.C., LL.D.) Director
/s/ Robert W. Pittman December 7, 2000
- ---------------------------------
(Robert W. Pittman) Director
/s/ Robert F. Smith December 7, 2000
- ---------------------------------
(Robert F. Smith) Director
/s/ Robert E. Nederlander December 7, 2000
- ---------------------------------
(Robert E. Nederlander) Director
II-7
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation
of the Registrant (incorporated by reference to
Exhibit 3.1 to the Registrant's Form 10-Q/A for
the period March 31, 2000, dated July 28, 2000).
3.2 Amended and Restated By-Laws of the Registrant
(incorporated by reference to Exhibit 3.2 to the
Registrant's Form 10-Q/A for the Quarterly period
ended March 31, 2000 dated July 28, 2000).
4.1 Form of Certificate for the Company's common
stock, par value $.01 per share. (Incorporated by
reference to Exhibit 4.1 to the Company's Form S-
3 Registration Statement No. 333-45227)
5.1 Opinion of Eric J. Bock, Esq. regarding the
legality of the securities being registered by the
Company hereby.*
10.1 Purchase Agreement dated as of November 16, 2000
by and among Cendant Corporation, Cendant Stock
Corporation and Liberty CNDT, Inc.*
23.1 Consent of Deloitte & Touche LLP related to the
financial statements of Cendant Corporation.*
23.2 Consent of Deloitte & Touche LLP related to the
financial statements of Avis Group Holdings, Inc.*
23.3 Consent of Attorney (see Exhibit 5.1).*
24.1 Power of Attorney (included on signature page).
----------------------
* Filed herewith.
II-8
Exhibit 5.1
CENDANT CORPORATION
9 West 57th Street
New York, NY 10019
December 11, 2000
Cendant Corporation
9 West 57th Street
New York, New York 10019
Re: Cendant Corporation Registration on Form S-3
--------------------------------------------
Ladies and Gentlemen:
I am Senior Vice President, Law of Cendant Corporation, a Delaware
corporation (the "Company"), in connection with the offering by a selling
stockholder of up to 2,346,515 shares (the "Shares") of the Company's CD
common stock, par value $.01 per share (the "Common Stock").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Act").
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of the
Registration Statement on Form S-3 as filed with the Securities and
Exchange Commission (the "Commission") on December 11, 2000 under the Act
and the Purchase Agreement dated as of November 16, 2000 by and among the
Company, Cendant Stock Corporation and Liberty CNDT, Inc. I have also
examined originals or copies, certified or otherwise identified to my
satisfaction, of such records of the Company and such agreements,
certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents,
certificates and records as I have deemed necessary or appropriate as a
basis for the opinions set forth herein.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted me as originals, the conformity to original documents
of all documents submitted to me as certified, conformed or photostatic
copies and the authenticity of the originals of such latter documents. In
making my examination of documents executed or to be executed by parties
other than the Company, I have assumed that such parties had or will have
the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite
action, corporate or other, and execution and delivery by such parties of
such documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which I have not independently
established or verified, I have relied upon statements and representations
of officers and other representatives of the Company and others.
I am admitted to the bar in the States of New York and New Jersey
and I do not express any opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, I am of the opinion that
the Shares were validly issued and are fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement. I also consent to the
reference to the use of my name under the caption "Legal Opinions" in the
Registration Statement. In giving this consent, I do not thereby admit that
I am included in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Eric J. Bock, Esq.
Eric J. Bock, Esq.
Senior Vice President,
Law and Secretary
EXHIBIT 10.1
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of November 16, 2000 (this
"Agreement"), by and among Cendant Corporation, a Delaware corporation
("Cendant"), Cendant Stock Corporation, a Delaware corporation and a wholly
owned subsidiary of Cendant ("Seller") and Liberty CNDT, Inc., a Delaware
corporation ("Liberty CNDT").
WHEREAS, Liberty CNDT desires to purchase from Seller, and
Seller desires to sell to Liberty CNDT, 2,346,515 shares (the "Shares") of
the common stock, par value $.01 per share, of Cendant designated CD common
stock (the "Common Stock"), in exchange for the surrender of a Warrant,
issued by Cendant to Liberty CNDT on February 7, 2000 and providing for the
purchase of 28,956,000 shares of Common Stock at an exercise price of
$23.00 per share (the "Warrant"); and
WHEREAS, Cendant has agreed, in consideration of the purchase
of the Shares by Liberty CNDT from Seller, which is a wholly owned
subsidiary of Cendant, to prepare and file with the Securities and Exchange
Commission (the "Commission"), and cause to become effective, a
Registration Statement on Form S-3 that permits the resale of the Shares by
Liberty CNDT or its transferee in the public market.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the
parties hereby agree as follows:
ARTICLE I
THE PURCHASE
Section 1.1 Purchase and Sale. Upon the terms and subject to
the conditions of this Agreement, on the date hereof Seller is selling and
delivering to Liberty CNDT, and Liberty CNDT is purchasing from Seller, the
Shares, in consideration for which Liberty CNDT is delivering the Warrant
to Seller.
Section 1.2 Deliveries by the Parties. Subject to the terms and
conditions hereof, Seller is delivering to Liberty CNDT a certificate, duly
registered on the stock books of Cendant, in the name of "Liberty CNDT,
Inc.," representing the Shares, against receipt from Liberty CNDT of the
Warrant.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER AND CENDANT
Seller and Cendant represent and warrant to Liberty CNDT as follows:
Section 2.1 Organization. Each of Seller and Cendant is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has the requisite corporate power and
authority to carry on its business substantially as it is now being
conducted.
Section 2.2 Authority. Each of Seller and Cendant has the
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by
the Board of Directors of each of Seller and Cendant and by all other
requisite corporate action on the part of each of Seller and Cendant. This
Agreement has been validly executed and delivered by each of Seller and
Cendant and (assuming this Agreement has been duly authorized, executed and
delivered by Liberty CNDT) constitutes a valid and binding agreement of
each of Seller and Cendant, enforceable against Seller and Cendant in
accordance with its terms, except that (a) such enforcement may be subject
to any bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other laws, now or hereafter in effect, relating to or limiting
creditors' rights generally and (b) enforcement of this Agreement,
including, among other things, the remedy of specific performance and
injunctive and other forms of equitable relief, may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
Section 2.3 The Shares. The Shares have been duly and validly
authorized and issued to Seller and, upon delivery to Liberty CNDT (or its
permitted assignee) against the delivery and surrender of the Warrant, in
accordance with the terms of this Agreement, the Shares shall be duly and
validly issued, fully paid and non-assessable. Delivery of the
certificate(s) for the Shares will pass valid title to the Shares, free and
clear of any claim, lien, charge, security interest, encumbrance,
restriction on transfer or voting or other defect in title whatsoever
("Liens"), other than Liens resulting from any action(s) relating to
Liberty CNDT.
Section 2.4 Capitalization. The authorized capital of Cendant
consists of 2,500,000,000 shares of Common Stock comprised of 2,000,000,000
shares designated as CD stock, 500,000,000 shares designated as Move.com
stock and 10,000,000 shares of preferred stock, par value $.01 per share
(the "Preferred Stock"). As of October 31, 2000, there were 782,958,489
shares of Common Stock issued and outstanding, 3,742,286 shares of Move.com
stock issued and outstanding (excluding Cendant's 22,500,000 notional
interest) and no shares of Preferred Stock issued and outstanding.
Section 2.5 Consents and Approvals; No Violations. Neither the
execution and delivery of this Agreement by Seller or Cendant, nor the
consummation by Seller or Cendant of the transactions contemplated hereby
or thereby will (a) conflict with or result in any breach of any provision
of the certificate of incorporation or by-laws, as amended, of Seller or
Cendant, (b) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, or require any
consent under, any indenture, license, contract, agreement or other
instrument or obligation to which Seller or Cendant is a party, (c) violate
any order, writ, injunction, decree or award rendered by any Governmental
Entity (as hereinafter defined) or any statute, rule or regulation
(collectively, "Laws" and, individually, a "Law") applicable to Seller or
Cendant, or (d) require any filing with, or the obtaining of any permit,
authorization, consent or approval of, any governmental or regulatory
authority or court, domestic or foreign (a "Governmental Entity").
Section 2.6 SEC Reports. Since January 1, 2000, Cendant has
filed all required reports, schedules, forms, statements and other
documents, including exhibits and all other information incorporated
therein (the "SEC Documents"), with the Commission. As of their respective
dates, 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, as the case may
be, and the rules and regulations of the Commission promulgated thereunder
applicable to such SEC Documents, and none of the SEC Documents when filed
(as amended and restated and as supplemented by subsequently filed SEC
Documents) contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading. At the time the Cendant Registration
Statement (as defined in Annex A) is declared effective under the
Securities Act, the prospectus included as part thereof will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that no representation or warranty is made
herein with respect to any information included in or omitted from the
Cendant Registration Statement or the related prospectus in reliance upon
or in conformity with written information furnished to Cendant by Liberty
CNDT or any other Holder (as defined in Annex A) for use in the preparation
of the Cendant Registration Statement.
Section 2.7 Shareholder Vote. The delivery and sale of the
Shares will not require any vote of Cendant's shareholders pursuant to the
terms of the certificate of incorporation, as amended, of Cendant or the
rules of the New York Stock Exchange (the "NYSE").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LIBERTY CNDT
Liberty CNDT represents and warrants to Seller and Cendant as
follows:
Section 3.1 Organization. Liberty CNDT is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power and authority to
carry on its business substantially as it is now being conducted. Liberty
CNDT is a wholly owned subsidiary of Liberty Media Corporation, a Delaware
corporation ("Liberty").
Section 3.2 Authority Relative to this Agreement. Liberty CNDT
has the corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all requisite
corporate action on the part of Liberty CNDT. This Agreement has been duly
and validly executed and delivered by Liberty CNDT and (assuming this
Agreement has been duly authorized, executed and delivered by Seller and
Cendant) constitutes a valid and binding agreement of Liberty CNDT,
enforceable against Liberty CNDT in accordance with its terms, except that
(a) such enforcement may be subject to any bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other laws, now or
hereafter in effect, relating to or limiting creditors' rights generally
and (b) enforcement of this Agreement, including, among other things, the
remedy of specific performance and injunctive and other forms of equitable
relief, may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
Section 3.3 Consents and Approvals; No Violations. Neither the
execution and delivery of this Agreement by Liberty CNDT, nor the
consummation by Liberty CNDT of the transactions contemplated hereby will
(a) conflict with or result in any breach of any provision of the
certificate of incorporation or by-laws (or similar organizational
documents) of Liberty CNDT, (b) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration)
under, or require any consent under, any indenture, license, contract,
agreement or other instrument or obligation to which the Liberty CNDT is a
party, (c) violate any order, writ, injunction, decree or award rendered by
any Governmental Entity or Law applicable to Liberty CNDT, or (d) require
any filing with, or the obtaining of any permit, authorization, consent or
approval of, any Governmental Entity.
Section 3.4 Liberty CNDT Acknowledgment. Liberty CNDT has
conducted its own independent investigation, review and analysis of
Cendant. In entering into this Agreement, Liberty CNDT acknowledges that it
has relied solely upon the aforementioned investigation, review and
analysis, and, other than with respect to the representations and
warranties made in Article II of this Agreement, Liberty CNDT acknowledges
that none of Cendant, or any of its directors, officers, employees,
affiliates, controlling persons, agents, advisors or representatives makes
or has made any representation or warranty, either express or implied.
ARTICLE IV
COVENANTS
Section 4.1 Preparation and Filing of Registration Statement.
Subject to the terms and conditions of Annex A hereto, Cendant shall, as
promptly as practicable after the date hereof, prepare and file the Cendant
Registration Statement with the Commission and use its commercially
reasonable securities efforts to cause the Cendant Registration Statement
to become and remain effective under the Securities Act. The rights and
obligations of the parties with respect to the registration and resale of
the Shares are as set forth in Annex A hereto, which is hereby incorporated
into this Agreement by reference thereto.
Section 4.2 Public Announcements. Cendant and Liberty CNDT will
consult with each other with respect to the issuance of a joint report,
statement or press release with respect to this Agreement and the
transactions contemplated hereby.
Section 4.3 Retention of Warrant. Seller shall retain sole
possession of the Warrant during the period commencing with its receipt
thereof pursuant to the Agreement and ending with the Expiration Date (as
such term is defined in the Warrant), and during such period Seller shall
not cancel or otherwise terminate the Warrant (other than in connection
with the exercise thereof by Seller).
ARTICLE V
MISCELLANEOUS
Section 5.1 Entire Agreement. This Agreement (including Annex A
hereto, which is incorporated by reference herein) constitutes the entire
agreement of the parties relating to the subject matter hereof and
supersedes other prior agreements and understandings among the parties both
oral and written regarding such subject matter.
Section 5.2 Severability. Any provision of this Agreement that
is held by a court of competent jurisdiction to violate applicable law
shall be limited or nullified only to the extent necessary to bring the
Agreement within the requirements of such law.
Section 5.3 Notices. Any notice required or permitted by this
Agreement must be in writing and must be sent by facsimile, by nationally
recognized commercial overnight courier, or mailed by United States
registered or certified mail, addressed to the other party at the address
below or to such other address for notice (or facsimile number, in the case
of a notice by facsimile) as a party gives the other party written notice
of in accordance with this Section 8.3. Any such notice will be effective
as of the date of receipt:
(a) if to Seller or Cendant, to it at
Cendant Corporation
9 West 57th Street
37th Floor
New York, New York 10019
Fax: (212) 413-1922/23
Attention: General Counsel
(b) if to Liberty CNDT (or its transferee), to it at
c/o Liberty Media Corporation
9197 South Peoria Street
Englewood, Colorado
Fax: (720) 875-5882
Attention: General Counsel
Section 5.4 Governing Law; Jurisdiction. 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 or conflict of
law provision or rule thereof. 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 7.3 (or to such other address for
notice that such party has given the other party written notice of in
accordance with Section 7.3) 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.
Section 5.5 Descriptive Headings. The descriptive headings
herein are inserted for convenience of reference only and shall in no way
be construed to define, limit, describe, explain, modify, amplify, or add
to the interpretation, construction or meaning of any provision of, or
scope or intent of, this Agreement nor in any way affect this Agreement.
Section 5.6 Counterparts. This Agreement may be signed in
counter-parts and all signed copies of this Agreement will together
constitute one original of this Agreement. This Agreement shall become
effective when each party hereto shall have received counterparts thereof
signed by all the other parties hereto.
Section 5.7 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 Liberty CNDT may transfer
the Shares (or any portion thereof) to another direct or indirect wholly
owned subsidiary of Liberty. 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.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly signed as of the date first above written.
CENDANT STOCK CORPORATION
By: ___________________________________
Name:
Title:
CENDANT CORPORATION
By: ___________________________________
Name:
Title:
LIBERTY CNDT, INC.
By: __________________________________
Name:
Title:
ANNEX A
REGISTRATION PROCEDURES FOR
SHARES OF CENDANT CORPORATION
This Annex A forms part of the Purchase Agreement, dated as of
November 16, 2000 (the "Purchase Agreement"), among Cendant Corporation
("Cendant"), a Delaware corporation, Cendant Stock Corporation, a Delaware
corporation and a wholly owned subsidiary of Cendant, and Liberty CNDT,
Inc., a Delaware corporation ("Liberty CNDT"). The rights and obligations
of Liberty CNDT, any assignee of Liberty CNDT pursuant to Section 7.7 of
the Purchase Agreement and Cendant with respect to the registration, offer
and resale of the Shares (as defined in the Purchase Agreement) are as set
forth on this Annex A.
Section 1. DEFINITIONS; INTERPRETATION.
1.1 Definitions. As used in this Annex A, the following terms
have the following meanings:
"Action" has the meaning set forth in Section 3.3.
"Cendant Indemnified Parties" has the meaning set forth in Section
3.2.
"Cendant Registration Statement" means a registration statement on
Form S-3 to be filed by Cendant with the Commission pursuant to Rule 415
under the Securities Act, so as to permit the offer and subsequent resale
of the Shares from time to time following the effective date of such
registration statement.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" has the meaning set forth in Section 2.1.
"NYSE" means the New York Stock Exchange.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization or government or political department or agency
thereof or other entity.
"Registered Shares" means (i) the Shares and (ii) any shares of
capital stock issued with respect to or in exchange for the shares referred
to in the preceding clause (i) by way of a stock dividend or stock split or
in connection with a recapitalization or a merger, consolidation or other
reorganization. As to any particular Registered Shares, such shares shall
cease to be Registered Shares when (i) the Cendant Registration Statement
shall have become effective under the Securities Act and such Registered
Shares shall have been disposed of in accordance with the Cendant
Registration Statement, (ii) such shares shall have been distributed
pursuant to Rule 144 (or any successor provision then in force) under the
Securities Act, (iii) such shares shall have been otherwise transferred,
new certificates or other evidences of ownership for them not bearing a
legend restricting further transfer and not subject to any stop transfer
order or other restrictions on transfer shall have been delivered by
Cendant or the transfer agent for such shares and subsequent disposition of
such shares shall not require registration or qualification under the
Securities Act or any state securities laws then in force, (iii) such
shares shall be eligible for sale pursuant to Rule 144(k) (or any successor
provision then in force) or (iv) such shares shall cease to be outstanding.
"Registration Expenses" means the following expenses incident to
Cendant's performance of its obligations hereunder: (i) registration and
filing fees with the Commission; (ii) fees and expenses of compliance with
state securities or "blue sky" laws (including reasonable fees and
disbursements of "blue sky" counsel); (iii) printing expenses, messenger
and delivery expenses; (iv) fees and expenses incurred in connection with
the listing of the Registered Shares on the NYSE or on such securities
exchange or other national market system on which shares of the same class
or series as the Registered Shares may then be principally traded; and (v)
fees and expenses of counsel for Cendant and of its independent certified
public accountants, including the expenses of any special audits or "cold
comfort" letters. The term "Registration Expenses" does not include, and
Cendant shall not be responsible for: (a) brokerage commissions,
underwriting discounts and commissions and transfer taxes attributable to
the sale of any of the Registered Shares; (b) fees and disbursements of
underwriters and underwriters counsel (other than fees and expenses of such
counsel incurred in connection the "blue sky" qualification of the
Registered Shares); (c) fees and disbursements of counsel or of any experts
retained by Liberty CNDT in connection with the registration of the
Registered Shares or the disposition of such securities; or (d) any other
out-of-pocket expenses of Liberty CNDT.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Indemnified Parties" has the meaning set forth in Section
3.1.
All other capitalized terms used herein and not otherwise defined
have the meanings ascribed thereto in the Agreement.
1.2 Interpretation. When a reference is made in this Annex A to
a Section, such reference shall be to a Section of this Annex A, unless
otherwise clearly indicated. The headings contained in this Annex A are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Schedule or the Agreement. Whenever the word
"including" is used in this Annex A, it shall be deemed to be followed by
the words "without limitation." The use of any gender herein shall be
deemed to be or include the other genders and the use of the singular
herein shall be deemed to be or include the plural (and vice versa),
wherever appropriate.
Section 2. REGISTRATION.
2.1 Registration Procedures.
Following the execution by the parties of the Purchase
Agreement, Cendant shall (i) prepare and, as soon as practicable
thereafter, cause to be filed with the Commission the Cendant Registration
Statement, and (ii) use its commercially reasonable efforts to cause the
Cendant Registration Statement to be declared effective at the earliest
practicable date and, subject to the terms of this Annex A, to remain
effective for so long as any Registered Shares remain outstanding. In
connection with such registration of the Registered Shares, Cendant shall:
(i) prepare and file with the Commission such amendments and
supplements to the Cendant 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 Registered
Shares covered by such registration statement until such time as all
of such Registered Shares have been disposed of in accordance with
the intended methods of disposition thereof as set forth in such
registration statement or no Registered Shares shall remain
outstanding.
(ii) furnish to each holder of Registered Shares (a "Holder")
and any managing underwriter such number of conformed copies of such
registration statement and of each amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus included in such registration statement, and such other
documents as a Holder or such managing underwriter may reasonably
request to facilitate the disposition of the Registered Shares in
accordance with the intended methods of disposition thereof as set
forth in such registration statement;
(iii) use its commercially reasonable efforts to register or
qualify all the Registered Shares under such securities or "blue sky"
laws of such jurisdictions as the Holders shall reasonably request
(given the intended methods of distribution), and do any and all
other acts and things which may be reasonably necessary or advisable
to enable each Holder to consummate the disposition in such
jurisdictions of his Registered Shares covered by such registration
statement; provided, however, that in connection therewith Cendant
shall not be required to register or qualify any Registered Shares
under the securities or "blue sky" laws of any jurisdiction where
Cendant would be required (x) to qualify to do business as a foreign
corporation or as a dealer in such jurisdiction, (y) to conform its
capitalization or the composition of its assets at the time to the
securities or "blue sky" laws of such jurisdiction or (z) to take any
action that would subject it to service of process in suits other
than those arising out of the offer and sale of the Registered Shares
covered by such registration statement or subject itself to taxation
in such jurisdiction;
(iv) immediately notify each Holder, at any time when the
prospectus included in such registration statement is required to be
delivered pursuant to the Securities Act in connection with a sale of
Registered Securities, of the happening of any event which comes to
the attention of Cendant and as a result of which such prospectus, as
then in effect, would contain 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, in the light of the
circumstances under which they were made, not misleading, and,
subject to Section 2.4(d), Cendant will promptly prepare and furnish
to each Holder a supplement to or an amendment of such prospectus so
that, as thereafter delivered to the purchasers of such Registered
Shares, such prospectus will not contain an untrue statement of
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(v) immediately notify each Holder of the issuance or, to the
knowledge of Cendant, threatened issuance of any stop order by the
Commission suspending the effectiveness of the registration statement
or of the receipt by Cendant of any notification with respect to the
suspension or threatened suspension of the qualification of any
Registered Shares for sale under the securities or blue sky laws of
any jurisdiction, and Cendant shall take all commercially practicable
action necessary (i) to prevent the entry of any threatened stop
order or any threatened suspension or (ii) to remove any stop order
or lift any suspension once entered;
(vi) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission,
and make available to its securities holders as promptly as
practicable an earnings statement covering a period of twelve months
beginning 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 promulgated thereunder;
(vii) enter into customary agreements (including an
underwriting agreement containing customary terms and conditions) and
take such other actions as are reasonably required to facilitate the
disposition of such Registered Shares; and
(viii) use its commercially reasonable efforts to cause the
Registered Shares to be listed on the NYSE or on such other
securities exchange or national market system on which securities of
Cendant of the same class or series as the Registered Shares are then
principally traded.
2.2 Registration Expenses. Cendant will pay all Registration
Expenses in connection with the registration of Registered Shares pursuant
to Section 2.1. Liberty CNDT will pay, and hold Cendant harmless from, all
other costs and expenses incurred by or on behalf of Liberty CNDT or any
Holder in connection with an offer and sale or other disposition of
Registered Shares pursuant to this Annex A.
2.3 Preparation; Reasonable Investigation. In connection with
the preparation and filing of the Cendant Registration Statement, Cendant
shall provide the Holders and their respective attorneys and accountants
the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission
(other than any documents incorporated by reference in any prospectus), and
each amendment thereof or supplement thereto, and shall make available and
give each of them such access to its books and records, pertinent corporate
documents and such opportunities to discuss the business of Cendant with
its employees as shall be necessary for the Holders to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act.
Cendant shall not file any registration statement, any prospectus included
therein or any amendment thereof or supplement thereto with the Commission
over the reasonable objections of any counsel for the Holders.
2.4 Certain Covenants. Each Holder shall furnish to Cendant
such information regarding such Holder, its intended method of distribution
of Registered Shares and such other information as Cendant may from time to
time reasonably request for purposes of preparation of the Cendant
Registration Statement and to maintain the effectiveness of such
registration statement.
(a) At least two business day prior to any disposition of
Registered Shares by each Holder, such Holder will orally advise Cendant of
the dates on which such disposition is expected to commence and terminate,
the number of Registered Shares 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 the 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 the 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 Registered Shares to be sold under the securities
or blue sky laws of such jurisdictions in the United States as such Holder
shall reasonably request (subject to the proviso of Section 2.1(iii)).
(b) Cendant may postpone the filing or the effectiveness of the
Cendant Registration Statement or suspend the use of the Cendant
Registration Statement for a period of time, not to exceed 120 days in any
12-month period, if Cendant determines that the filing or continued use of
the Cendant Registration Statement would require Cendant to disclose a
material financing, acquisition or other corporate development of Cendant
or any of its affiliates and Cendant shall have determined that such
disclosure is not in the best interest of Cendant (any such determination
to be made by resolution of the Board of Directors of Cendant). Cendant
shall promptly notify each Holder at such time assuch financing,
acquisition or other corporate development has been otherwise publicly
disclosed or terminated or counsel to Cendant has determined that such
disclosure is not required due to subsequent events.
(c) Each Holder agrees that, upon receipt of any notice from
Cendant of the happening of any event of the kind described in Section
2.1(iv), such Holder will forthwith discontinue disposition of the
Registered Shares pursuant to such registration statement until receipt of
copies of the supplemented or amended prospectus contemplated by Section
2.1(iv), and, if so directed by Cendant, will deliver to Cendant all copies
of the prospectus covering the Registered Shares in its possession at the
time of receipt of such notice.
(d) Each Holder shall, at any time it is engaged in a
distribution of Registered Shares, 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 of
Cendant in contravention of such rules, (ii) will distribute the Registered
Shares solely in the manner described in the Cendant 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.
(e) Each Holder shall provide such information and materials,
execute all such documents and take all such other actions as Cendant shall
reasonably request in order to permit Cendant to comply with all applicable
requirements of law and to effect the registration of the Registered
Shares.
Section 3. INDEMNIFICATION.
3.1 Indemnification by Cendant. Cendant will indemnify and hold
harmless each Holder, such holders's directors, officers and partners and
each other Person, if any, who controls such Holder within the meaning of
the Securities Act or the Exchange Act ("Seller Indemnified Parties"),
against any and all losses, claims, damages or liabilities, joint or
several, and expenses to which the Seller Indemnified Parties, or any of
them, may become subject, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses
arise out of or are based upon (x) any untrue statement or alleged untrue
statement of any material fact contained in the Cendant Registration
Statement, any preliminary, final or summary prospectus included therein,
or any amendment or supplement thereto, or (y) any omission or 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 such Seller Indemnified Parties for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending such loss, claim, liability, action or proceeding; provided, that
Cendant shall not be liable to any Holder, such holder's directors,
officers or partners or any Person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act 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 (i) any actual or
alleged untrue statement in or any actual or alleged omission from, the
Cendant Registration Statement or amendment or supplement thereto or any
preliminary, final or summary prospectus, in reliance upon and in
conformity with written information furnished by or on behalf of such
Holder to Cendant specifically for use in the preparation thereof, (ii) any
actual or alleged untrue statement of a material fact or any actual or
alleged omission of a material fact required to be stated in any
preliminary prospectus if such Holder sells Registered Shares to a Person
to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is most recent, if
Cendant had previously furnished copies thereof to such Holder or its
representatives and such final prospectus, as then amended or supplemented,
corrected any such misstatement or omission or (iii) the use of any
preliminary, final or summary prospectus by or on behalf of such Holder
after Cendant has notified such holder, in accordance with Section 2.1(iv),
that such prospectus contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein, in the light
of the circumstances under which they were made, not misleading.
3.2 Indemnification by Holders. Each Holder will indemnify and
hold harmless Cendant, each of its directors and officers, and each Person,
if any, who controls Cendant within the meaning of the Securities Act or
the Exchange Act (the "Cendant Indemnified Parties"), against any and all
losses, claims, damages or liabilities and expenses to which the Cendant
Indemnified Parties may become subject, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) or
expenses arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Cendant Registration
Statement, any preliminary, final or summary prospectus included therein,
or amendment or supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, if the statement or omission
was made in reliance upon and in conformity with written information
furnished to Cendant by or on behalf of such Holders specifically for use
in the preparation thereof or (ii) the use of any prospectus by or on
behalf of such Holders after Cendant has notified such Holders that such
prospectus contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein, in light of the
circumstances under which they were made, not misleading. Notwithstanding
the foregoing, no Holder shall be liable under this Section 3.2 for any
amounts exceeding the gross proceeds received by such Holder in connection
with the sale of such Holder's Registered Shares.
3.3 Indemnification Procedures. Any Person that proposes to
assert the right to be indemnified under this Section 3 shall, promptly
after receipt of notice of any claim, action, suit, proceeding or other
litigation (collectively, an "Action") against such Person in respect of
which a claim is to be made against an indemnifying party under this
Section 3, notify such indemnifying party of the commencement of such
Action, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party of any such Action shall not relieve it from
any liability that it may have to any indemnified party otherwise than
under this Section 3, except to the extent that such indemnifying party is
prejudiced by such failure to give notice. In case any such Action shall be
brought and notice given to the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, with counsel satisfactory to the 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 further legal
or other expenses incurred by such indemnified party, except as provided
below and except for the reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense thereof.
The indemnified party shall have the right to employ separate counsel and
to participate in (but not control) any such Action, but the fees and
expenses of such counsel shall be the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party has been
authorized by the indemnifying party, (ii) the indemnified party shall have
been advised by its counsel in writing that there are legal defenses
available to it that are different from or in addition to those available
to the indemnifying parties, (iii) the indemnified party shall have been
advised by its counsel in writing that there is a conflict of interest
between the indemnifying party and the indemnified party in the conduct of
the defense of such Action (in which case the indemnifying party shall not
have the right to direct the defense of such Action on behalf of the
indemnified party) or (iv) the indemnifying party shall not in fact have
employed counsel to assume the defense of such Action, in each of which
cases the fees and expenses of such counsel shall be at the expense of the
indemnifying party. An indemnifying party shall not be liable for any
settlement of an Action effected without its written consent (which consent
shall not be unreasonably withheld). No indemnifying party will consent to
entry of any judgment or enter into any settlement 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 in respect of such
Action. An indemnifying party who is not entitled to, or elects not to,
assume the defense of an Action will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such Action.
3.4 Contribution. If recovery is not available under the
foregoing indemnification provisions, for any reason other than as
specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution for any and all losses, claims,
damages or liabilities, joint or several, and expenses to which they may
become subject, in such proportion as is appropriate to reflect the
relative fault of the parties entitled to indemnification, on the one hand,
and the indemnifying parties, on the other, in connection with the matter
out of which such losses, claims, damages, liabilities or expenses arise or
result from. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered the parties'
relative knowledge and access to information concerning the matter with
respect to which the Action was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable considerations
appropriate under the circumstances. Cendant and each Holder agrees that it
would not be equitable if the amount of such contribution were determined
by pro rata or per capita allocation.
Section 4. RULE 144.
4.1 Subject to Section 2.4, Cendant hereby covenants to use its
commercially reasonable efforts to file in a timely manner all reports
required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder (or, if
at any time Cendant is not required to file such reports, it will, upon the
request of Holder, make publicly available other information so long as
necessary to permit sales under Rule 144 under the Securities Act), and it
will take such further action as any Holder may reasonably request, all to
the extent required from time to time to enable Cendant to meet the
requirements for issuers entitled to register securities on Form S-3 or any
successor form.
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Cendant Corporation on Form S-3 of our report, relating to the
consolidated financial statements of Cendant Corporation as of December 31,
1999 and 1998 and for the three years ended December 31, 1999, dated
November 24, 2000 (which expresses an unqualified opinion and includes
explanatory paragraphs relating to the change in the method of recognizing
revenue and membership solicitation costs as described in Note 1 and the
presentation of the individual membership segment as a discontinued
operation as described in Notes 1 and 4), appearing in the Current Report
on Form 8-K of Cendant Corporation dated November 28, 2000 and to the
reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
/s/ Deloitte & Touche LLP
New York, New York
December 7, 2000
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Cendant Corporation on Form S-3 of our report dated January
26, 2000 (March 27, 2000 as to Note 1), appearing in the Annual Report on
Form 10-K of Avis Group Holdings, Inc. for the year ended December 31, 1999
and included in the Current Report on Form 8-K of Cendant Corporation dated
November 17, 2000.
/s/ Deloitte & Touche LLP
New York, New York
December 6, 2000
