As filed with the Securities and Exchange Commission on April 19, 2002.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CENDANT CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 06-0918165
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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 each 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)
Copy to:
Vincent J. Pisano, Esq. Eric J. Bock, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP Senior Vice President, Law and Secretary
4 Times Square Cendant Corporation
New York, NY 10036 9 West 57th Street
(212) 735-3000 New York, NY 10019
Fax: (212) 735-2000 (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 the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, check the
following box. |_|
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, please 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
- ------------------------------------------------------------------------------------------
Proposed
Title of Each Proposed Maximum
Class of Maximum Aggregate Amount of
Securities to be Amount to be Offering Price Offering Registration
Registered Registered per Share (1) Price(1) Fee
- -------------------------------------------------------------------------------------------
CD Common Stock, 9,920,000 shares $18.75 $186,000,000 $17,112
par value $0.01
per share
- ------------------- ----------------- ----------------- ----------------- -----------------
(1) This estimate is made pursuant to Rule 457(c) of the Securities
Act of 1933, as amended, solely for purposes of calculating the
registration fee. The above calculation is based on the average of
the high and low prices of the Registrant's CD common stock on
April 16, 2002.
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.
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[FLAG]
The information in this prospectus is not complete and may be changed. The
selling securityholders may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and we
are not soliciting offers to buy these securities in any state where the
offer or sale is not permitted.
Subject to completion, dated April 19, 2002
PROSPECTUS
CENDANT CORPORATION
9,920,000 Shares
CD Common Stock
-----------
This prospectus relates to the sale by from time to time by a
selling stockholder of Cendant Corporation, including its transferees,
donees, pledgees or successors, of up to 9,920,000 shares of CD common
stock, par value $0.01 per share, of Cendant Corporation.
The shares of CD common stock are being registered to permit the
selling stockholder to sell the shares of CD common stock from time to time
in the public market. The selling stockholder may sell the shares of CD
common stock through ordinary brokerage transactions or through any other
means described in this prospectus under "Plan of Distribution." We cannot
assure you that the selling stockholder will sell all or a portion of the
shares of 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 Common Stock and Move.com Common Stock" in
our Proxy Statement, dated February 10, 2000 (filed February 11, 2000),
which is incorporated herein by reference.
Our CD common stock is listed on the New York Stock Exchange under
the symbol "CD." On April 18, 2002, the last reported sale price of our CD
common stock was $19.03.
Investing in shares of our CD common stock involves risks. See
"Risk Factors" beginning on page 10 of this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus or the accompanying prospectus supplement is
truthful or complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is , 2002.
No dealer, salesperson or other person has been authorized to give
any information or to make any representations other than those contained
or incorporated by reference in this prospectus in connection with the
offer contained in this prospectus and, if given or made, such information
or representations must not be relied upon as having been authorized by
Cendant. Neither the delivery of this prospectus nor any sale made
hereunder shall under any circumstances create an implication that there
has been no change in the affairs of Cendant since the date hereof. This
prospectus does not constitute an offer to sell or a solicitation of an
offer to buy securities other than those specifically offered hereby or of
any securities offered hereby in any jurisdiction where, or to any person
to whom, it is unlawful to make such offer or solicitation. The information
contained in this prospectus speaks only as of the date of this prospectus
unless the information specifically indicates that another date applies.
TABLE OF CONTENTS
About this Prospectus.......................................................4
Cautionary Statement Concerning Forward-Looking Statements..................4
Incorporation of Certain Documents by Reference.............................7
Cendant.....................................................................8
Risk Factors...............................................................10
Use of Proceeds............................................................12
Dividend Policy............................................................12
Description of CD Common Stock.............................................13
Selling Stockholder........................................................16
Plan of Distribution.......................................................18
Legal Matters..............................................................21
Experts....................................................................21
Where You Can Find More Information........................................21
ABOUT THIS PROSPECTUS
This prospectus relates to the sale by a selling stockholder of up
to 9,920,000 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 headings "Incorporation of Certain Documents by Reference" and
"Where You Can More Information." All references to "we," "us," "our," or
"Cendant" in this prospectus are to Cendant Corporation.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
Forward-looking statements in this prospectus about Cendant are
subject to known and unknown risks, uncertainties and other factors which
may cause our actual results, performance or achievements to be materially
different from any future results, performance or achievements expressed or
implied by such forward-looking statements. These forward-looking
statements were based on various factors and were derived utilizing
numerous important assumptions and other important factors that could cause
actual results to differ materially from those in the forward-looking
statements. Forward-looking statements include the information concerning
our future financial performance, business strategy, projected plans and
objectives.
Statements preceded by, followed by or that otherwise include the
words "believes", "expects", "anticipates", "intends", "project",
"estimates", "plans", "may increase", "may fluctuate" and similar
expressions or future or conditional verbs such as "will", "should",
"would", "may" and "could" are generally forward-looking in nature and not
historical facts. You should understand that the following important
factors and assumptions could affect our future results and could cause
actual results to differ materially from those expressed in such
forward-looking statements:
o the impacts of the September 11, 2001 terrorist attacks on
New York City and Washington D.C. on the travel industry in
general, and our travel businesses in particular, are not
fully known at this time, but are expected to include
negative impacts on financial results due to reduced demand
for travel in the near term; other attacks, acts of war, or
measures taken by governments in response thereto may
negatively affect the travel industry, our financial
results and could also result in a disruption in our
business;
o the effect of economic conditions and interest rate changes
on the economy on a national, regional or international
basis and the impact thereof on our businesses;
o the effects of a decline in travel, due to political
instability, adverse economic conditions or otherwise, on
our travel related business;
o the effects of changes in current interest rates,
particularly on our real estate franchise and mortgage
businesses;
o the resolution or outcome of our unresolved pending
litigation relating to the previously announced accounting
irregularities and other related litigation;
o our ability to develop and implement operational,
technological and financial systems to manage growing
operations and to achieve enhanced earnings or effect cost
savings;
o competition in our existing and potential future lines of
business and the financial resources of, and products
available to, competitors;
o failure to reduce quickly our substantial technology costs
in response to a reduction in revenue, particularly in our
computer reservations and global distribution systems
businesses;
o our failure to provide fully integrated disaster recovery
technology solutions in the event of a disaster;
o our ability to integrate and operate successfully acquired
and merged businesses and risks associated with such
businesses, including the acquisitions of Galileo
International Inc. and Cheap Tickets, Inc., the
compatibility of the operating systems of the combining
companies, and the degree to which our existing
administrative and back-office functions and costs and
those of the acquired companies are complementary or
redundant;
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 to
maintain our credit ratings;
o competitive and pricing pressures in the vacation ownership
and travel industries, including the car rental industry;
o changes in the vehicle manufacturer repurchase arrangements
in our Avis car rental business in the event that used
vehicle values decrease;
o and changes in laws and regulations, including changes in
accounting standards and privacy policy regulation.
Other factors and assumptions not identified above were also
involved in the derivation of these forward-looking statements, and the
failure of such other assumptions to be realized as well as other factors
may also cause actual results to differ materially from those projected.
Most of these factors are difficult to predict accurately and are generally
beyond our control.
You should consider the areas of risk described above in
connection with any forward-looking statements that may be made by us and
our businesses generally. Except for our ongoing obligations to disclose
material information under the federal securities laws, we undertake no
obligation to release publicly any revisions to forward-looking statements,
to report events or to report the occurrence of unanticipated events unless
required by law. You are advised, however, to consult any additional
disclosures we make in our Annual Report on Form 10-K, Quarterly Reports on
Form 10-Q, and Current Reports on Form 8-K to the Securities and Exchange
Commission (the "Commission"). See "Where You Can Find More Information."
Also note that we provide a cautionary discussion of risks and
uncertainties under "Risk Factors" on page 10 of this prospectus. These are
factors that we think could cause our actual results to differ materially
from expected results. Other factors besides those listed here could also
adversely affect us. For any forward-looking statements contained in any
document, we claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform Act of
1995.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the
information we file with the Commission, which means that we can disclose
important information to you by referring to another document filed
separately with the Commission. The information that Cendant files after
the date of this prospectus with the Commission will automatically update
and supersede this information. Cendant incorporates by reference into this
prospectus the documents listed below and any future filings made with the
Commission under sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), until all of the
shares of CD common stock offered by this prospectus are sold.
o Annual Report on Form 10-K for the year ended December 31,
2001, filed on April 1, 2002;
o Current Reports on Form 8-K dated October 15, 2001, April
1, 2002 and April 17, 2002 (filed on April 18, 2002); and
o The description of Cendant's CD common stock contained in
the Proxy Statement dated February 10, 2000, filed on
February 11, 2000.
All documents filed by Cendant with the Commission from the date
of this prospectus to the end of the offering of the shares of CD common
stock shall also be deemed to be incorporated herein by reference.
Any statement contained in a document incorporated or considered
to be incorporated by reference in this registration statement shall be
considered to be modified or superseded for purposes of this prospectus to
the extent that a statement contained in this registration statement or in
any subsequently filed document that is or is considered to be incorporated
by reference modifies or supersedes such statement. Any statement that is
modified or superseded shall not, except as so modified or superseded,
constitute a part of this prospectus.
You may request a copy of any of the documents which are
incorporated by reference in this prospectus, other than exhibits which are
not specifically incorporated by reference into such documents and our
Certificate of Incorporation and By-Laws, at no cost, by writing or
telephoning Cendant at the following:
Investor Relations
Cendant Corporation
9 West 57th Street
New York, NY 10019
Telephone: (212) 413-1800
CENDANT
We are one of the foremost providers of travel and real estate
services in the world. Our businesses provide a wide range of consumer and
business services and are intended to complement one another and create
cross-marketing opportunities both within and among our following five
business segments:
o Our Real Estate Services segment franchises the real estate
brokerage businesses of the CENTURY 21(R), Coldwell
Banker(R), Coldwell Banker Commercial(R) and ERA(R) brands;
provides home buyers with mortgages through Cendant
Mortgage Corporation and assists in employee relocations
through Cendant Mobility Services Corporation.
o Our Hospitality segment operates the Days Inn(R), Ramada(R)
(in the United States), Super 8 Motel(R), Howard
Johnson(R), Wingate Inn(R), Knights Inn(R), Travelodge(R)
(in North America), Villager Lodge(R)/Village
Premier(R)/Hearthside by Villager and AmeriHost Inn(R)
lodging franchise systems, facilitates the sale and
exchange of vacation ownership intervals through Resort
Condominiums International, LLC, Fairfield Resorts, Inc.
and Equivest Finance, Inc. and markets vacation rental
properties in Europe through Holiday Cottages and Cuendet.
o Our Vehicle Services segment operates and franchises our
Avis(R) car rental business; provides fleet management and
fuel card services to corporate clients and government
agencies through PHH Arval and Wright Express and operates
parking facilities in the United Kingdom through our
National Car Parks subsidiary.
o Our Travel Distribution segment provides global
distribution and computer reservation services to airlines,
hotels, car rental companies and other travel suppliers and
provides our travel agent customers the ability to
electronically access airline schedule and fare
information, book reservations, and issue tickets through
Galileo International, provides travel services through our
Cendant Travel and Cheap Tickets travel agency businesses,
and provides reservations processing, connectivity and
information management services through WizCom.
o Our Financial Services segment provides enhancement
packages to financial institutions through FISI*Madison
LLC, provides insurance-based products to consumers through
Benefit Consultants, Inc. and Long Term Preferred Care,
Inc., provides loyalty solutions to businesses through Cims
Ltd., operates and franchises tax preparation services
through Jackson Hewitt Inc. and provides a variety of
membership programs offering discounted products and
services to consumers through our relationship with
Trilegiant Corporation.
Our principal executive offices are located at 9 West 57th Street,
New York, New York 10019. Our telephone number is (212) 413-1800. Our web
site is www.cendant.com. The information contained on our web site is not
incorporated by reference in this prospectus.
***
We seek organic growth augmented by the acquisition and
integration of complementary businesses. As a result, we are currently
engaged in a number of preliminary discussions concerning possible
acquisitions and intend to continually explore and conduct discussions with
regard to other acquisitions and other strategic corporate transactions.
The purchase price for any possible transaction may be paid in cash, stock,
other securities, borrowings, or a combination thereof. Prior to
consummating any transaction, we will need to, among other things, initiate
and satisfactorily complete our due diligence investigations; negotiate the
financial and other terms (including price) and conditions of such
transactions; obtain appropriate board of directors, regulatory and
shareholder or 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 and significant acquisitions.
In addition, we continually review and evaluate our portfolio of
existing businesses to determine if they continue to meet our business
objectives. As part of our ongoing evaluation of such businesses, we intend
from time to time to explore and conduct discussions with regard to joint
ventures, divestitures and related corporate transactions. However, we can
give no assurance with respect to the magnitude, timing, likelihood or
financial or business effect of any possible transaction. We also cannot
predict whether any divestitures or other transactions will be consummated
or, if consummated, will result in a financial or other benefit to us. We
intend to use a portion of the proceeds from any such dispositions and cash
from operations to retire indebtedness, make acquisitions and for other
general corporate purposes.
RISK FACTORS
You should carefully consider the following risk factor and other
information contained or incorporated by reference in this prospectus and
any accompanying prospectus supplement before deciding to purchase any
shares of CD common stock.
We have had accounting irregularities and related litigation and
governmental investigations.
Cendant was created in December 1997, through the merger of HFS
Incorporated into CUC International, Inc. 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 report 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.
Following 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 were 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 SEC and the United States Attorney for the District of New
Jersey have conducted investigations relating to the matters referenced
above. As a result of the findings from our internal investigations, we
made all adjustments considered necessary by Cendant, which are reflected
in our 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 we had violated certain financial reporting provisions of the
Exchange Act and ordered us to cease and desist from committing any future
violations of such provisions. No financial penalties were imposed against us.
On December 7, 1999, we announced that we had 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. A portion
of the PRIDES litigation had previously been settled through the issuance
of rights. Under the settlement agreement, we would pay the class members
approximately $2.85 billion in cash and 50% of any recovery we may obtain
in connection with claims we have asserted against CUC's former public
auditor. The definitive settlement document was approved by the U.S.
District Court by order dated August 14, 2000. Certain parties in the class
action appealed various aspects of the District Court's orders approving
the settlement. In August 2001, the U.S. Court of Appeals for the Third
Circuit affirmed the judgment of the District Court approving the
settlement (but remanded the case back to the District Court for further
proceedings concerning an award of fees to the class attorneys, a matter in
which we have no interest). One party in the class action has petitioned
the U.S. Supreme Court to hear her challenge to the plan of allocation of
the settlement funds among the class members. On March 18, 2002, the U.S.
Supreme Court declined to review the matter. The settlement agreement
required us to post collateral in the form of credit facilities and/or
surety bonds by November 13, 2000, which we have done. In light of the
Supreme Court's action on March 18, 2002, the settlement is required to be
fully funded by July 16, 2002.
The settlement does not encompass all litigations asserting claims
against us associated with the accounting irregularities. We do 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, we do not believe that the impact of such
unresolved proceedings should result in a material liability to us in
relation to our financial position or liquidity.
USE OF PROCEEDS
Pursuant to the terms of the stock purchase agreement described
under the sections of this prospectus entitled "Selling Stockholder" and
"Plan of Distribution," we may be entitled to receive a portion of the
proceeds from the sales by the selling stockholder of the shares of our CD
common stock under certain circumstances. Unless these circumstances occur,
all proceeds from the sale of shares of our CD common stock will go to the
selling stockholder who offers and sells its shares.
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 to reduce debt. 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
Common Stock and Move.com Common Stock" in our Proxy Statement, dated
February 10, 2000, which is incorporated herein by reference.
DESCRIPTION OF CD COMMON STOCK
The following description of Cendant's CD common stock does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, the more complete descriptions thereof set forth in our
Amended and Restated Certificate of Incorporation (the "Certificate") and
Amended and Restated By-Laws (the "By-Laws").
We are authorized to issue up to 2,000,000,000 shares of CD common
stock, par value $.01 per share. As of March 15, 2002, there were
982,020,341 shares of CD common stock outstanding.
General
In March 2000, our outstanding common stock was reclassified as CD
common stock, and we created a series of common stock designated as
Move.com common stock. The Move.com common stock was designed to track the
value of our Move.com Group, and the CD common stock represents our
interests in the remainder of our business and our interest in Move.com
Group. No shares of Move.com common stock are outstanding. For a
description of the terms of our CD common stock, see "Summary Comparison of
Terms of Existing Common Stock with Terms of CD Common Stock and Move.com
Common Stock" in the Proxy Statement dated February 10, 2000, which is
incorporated by reference herein.
Subject to the rights of the holders of any shares of our
preferred stock which may at the time be outstanding, holders of CD common
stock are entitled to such dividends as the Board of Directors may declare
out of funds legally available therefor. The holders of CD common stock
will possess exclusive voting rights in us, except to the extent the Board
of Directors specifies voting power with respect to any preferred stock
issued. Except as hereinafter described, holders of CD common stock are
entitled to one vote for each share of CD common stock, but will not have
any right to cumulate votes in the election of directors. In the event of
liquidation, dissolution or winding up of Cendant, the holders of CD common
stock are entitled to receive, after payment of all of our debts and
liabilities and of all sums to which holders of any preferred stock may be
entitled, the distribution of any remaining assets of Cendant. Holders of
the CD common stock will not be entitled to preemptive rights with respect
to any shares which may be issued. All outstanding shares of CD common
stock are fully paid and non-assessable. The CD common stock is listed on
the New York Stock Exchange under the symbol "CD."
Certain Provisions
The provisions of our Certificate and By-Laws which are summarized
below may be deemed to have an anti-takeover effect and may delay, defer or
prevent a tender offer or takeover attempt that a stockholder might
consider in such stockholder's best interest, including those attempts that
might result in a premium over the market price for the shares held by
stockholders.
Classified Board
Our Board of Directors is divided into three classes that are
elected for staggered three-year terms. A director may be removed by the
stockholders without cause only by the affirmative vote of the holders,
voting as a single class, of 80% or more of the total number of votes
entitled to be cast by all holders of our voting stock, which shall include
all capital stock of Cendant which by its terms may vote on all matters
submitted to stockholders of Cendant generally.
Committees of the Board of Directors
Pursuant to the Certificate, the Board of Directors' authority to
designate committees shall be subject to the provisions of the By-Laws. The
Board of Directors may designate one or more directors as alternate members
of any committee to fill any vacancy on the committee and to fill a vacant
chairmanship of a committee occurring as a result of a member or chairman
leaving the committee, whether through death, resignation, removal or
otherwise. Pursuant to the By-Laws, the Board of Directors shall have the
following committees:
Executive Committee. An Executive Committee consisting of not less
than three directors elected by a majority vote of the Board of Directors.
Compensation Committee. A Compensation Committee consisting of not
less than three directors elected by a majority vote of the Board of
Directors.
Audit Committee. An Audit Committee consisting of not less than
four directors elected by a majority vote of the Board of Directors.
Newly Created Directorships and Vacancies
Newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled solely by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. Any directors elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred
and until such director's successor shall have been elected and qualified.
No decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
Special Meetings of Stockholders
A special meeting of stockholders may be called only by the
Chairman of the Board of Directors, the President or the Board of Directors
pursuant to a resolution approved by a majority of the entire Board of
Directors.
Quorum at Stockholder Meetings
The holders of one-third of the shares entitled to vote at any
meeting of the stockholders, present in person or by proxy, shall
constitute a quorum at all stockholder meetings.
Stockholder Action By Written Consent
Stockholder action by written consent in lieu of a meeting is
prohibited under the Certificate. As a result, stockholder action can be
taken only at an annual or special meeting of stockholders. This prevents
the holders of a majority of the outstanding voting stock of Cendant from
using the written consent procedure to take stockholder action without
giving all the stockholders of Cendant entitled to vote on a proposed
action the opportunity to participate in determining the proposed action.
Advance Notice of Stockholder-Proposed Business at Annual Meetings
Our By-Laws provide that for business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of Cendant. To be timely,
a stockholder's notice must be delivered to or mailed and received at the
principal executive offices of Cendant, not less than 60 days nor more than
90 days prior to the meeting; provided, however, that in the event that
less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the
tenth day following the date on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A stockholder's
notice to the Secretary must set forth as to each matter the stockholder
proposes to bring before the annual meeting: (i) a brief description of the
business desired to be brought before the annual meeting, (ii) the name and
address, as they appear on Cendant's books, of the stockholder proposing
such business, (iii) the class and number of shares of Cendant which are
beneficially owned by the stockholder, and (iv) any material interest of
the stockholder in such business.
In addition, the By-Laws provide that for a stockholder to
properly nominate a director at a meeting of stockholders, the stockholder
must have given timely notice thereof in writing to the Secretary of
Cendant. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of Cendant (i) in
the case of an annual meeting, at least 90 days prior to the first
anniversary of the date of the last annual meeting of Cendant stockholders
and (ii) with respect to a special meeting of stockholders, the close of
business on the 10th day following the date on which notice of such meeting
is first given to stockholders. Such stockholder's notice to the Secretary
must set forth: (i) the name and address of the stockholder who intends to
make the nomination and of the person or persons to be nominated, (ii) a
representation that the stockholder is the holder of record of common stock
and intends to appear in person or by proxy at the meeting to nominate each
such nominee, (iii) a description of all arrangements between such
stockholder and each nominee, (iv) such other information with respect to
each nominee as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Commission, and (v) the consent of each
nominee to serve as director of the Company if so elected.
Fair Price Provisions
Under the Delaware General Corporation Law and the Certificate, an
agreement of merger, sale, lease or exchange of all or substantially all of
Cendant's assets must be approved by the Board of Directors and adopted by
the holders of a majority of the outstanding shares of stock entitled to
vote thereon. However, the Certificate includes what generally is referred
to as a "fair price provision," which requires the affirmative vote of the
holders of at least 80% of the outstanding shares of capital stock entitled
to vote generally in the election of Cendant's directors, voting together
as a single class, to approve certain business combination transactions
(including certain mergers, recapitalization and the issuance or transfer
of securities of Cendant or a subsidiary having an aggregate fair market
value of $10 million or more) involving Cendant or a subsidiary and an
owner or any affiliate of an owner of 5% or more of the outstanding shares
of capital stock entitled to vote, unless either (i) such business
combination is approved by a majority of disinterested directors, or (ii)
the shareholders receive a "fair price" for their securities and certain
other procedural requirements are met. The Certificate provides that this
provision may not be repealed or amended in any respect except by the
affirmative vote of the holders of not less than 80% of the outstanding
shares of capital stock entitled to vote generally in the election of
directors.
SELLING STOCKHOLDER
Pursuant to the Registration Rights Agreement (defined below), we
are registering shares of our CD common stock to permit the selling
stockholder to offer these shares of CD common stock for resale from time
to time. The shares of CD common stock were issued in connection with the
obligation of Cendant Real Estate Holdings Inc. as purchaser under the
stock purchase agreement, dated as of April 17, 2002 (the "Stock Purchase
Agreement"), by and among Apollo Investment Fund III, L.P., Apollo Overseas
Partners III, L.P. and Apollo (UK) Partners III, L.P., as original sponsors
(the "Original Sponsors"), AP RES LLC, as sponsor (the "Sponsor"), Cendant
Corporation and Cendant Real Estate Holdings Inc., as purchaser (the
"Purchaser"), to issue shares of CD common stock , that were contributed to
the Purchaser, to the Sponsor. The selling stockholder may from time to
time offer and sell pursuant to this prospectus any or all of the shares of
CD common stock listed below. When we refer to the "selling stockholder" in
this prospectus, we mean the person listed in the table below, as well as
the pledgees, donees, assignees, transferees, successors and others who
later hold any of the selling stockholder's interests. The following
description and the description under the section of this prospectus
entitled "Plan of Distribution" are summaries of the material provisions of
the Registration Rights Agreement and the Stock Purchase Agreement which
are filed as exhibits to the registration statement of which this
prospectus forms a part.
Prior to entering into the Stock Purchase Agreement, the Sponsor
was the beneficial and record owner of 6,924,860.99 shares (the "Sponsor
Shares") of common stock, par value $0.01 per share, of NRT Incorporated
("NRT"), which represent all of the outstanding shares of common stock of
NRT. The Original Sponsors contributed the Sponsor Shares to the Sponsor,
which is wholly owned by the Original Sponsors. On December 5, 2000, we,
the Original Sponsors and NRT entered into a letter agreement (the "Option
Agreement"), pursuant to which the Original Sponsors granted us the right
and option (the "Option") to purchase all of the Sponsor Shares (which
Option is binding on the Sponsor). Pursuant to the Stock Purchase
Agreement, the Purchaser had the obligation to pay $186 million to the
Original Sponsors or their designee.
On April 17, 2002, we, the Sponsor and the Purchaser entered into
the Stock Purchase Agreement to provide for the acquisition of the Sponsor
Shares by the Purchaser in exchange for shares of CD common stock. The
terms and provisions of the Stock Purchase Agreement supercede and replace
the obligations of Cendant and NRT under the Option Agreement and the
Amended and Restated Stockholders Agreement, dated as of September 30, 1999
(the "Stockholders Agreement"), by and among NRT, Apollo Management, L.P.,
the Original Sponsors and Cendant. Pursuant to the Stockholders Agreement,
the Original Sponsors had certain rights with respect to the governance of
NRT, including the right to representation on NRT's board of directors and
approval rights regarding certain transactions. In connection with the
Stock Purchase Agreement, we and the Sponsor entered into a registration
rights agreement, dated as of April 17, 2002, in connection with the shares
of CD common stock issuable pursuant to the Stock Purchase Agreement (the
"Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, we have agreed to
pay all expenses incurred in connection with the registration of the shares
of the CD common stock owned by the selling stockholder covered by this
prospectus, other than any other out-of-pocket expenses of the selling
stockholder.
The table below sets forth the name of the selling stockholder,
the number and percentage of shares of CD common stock that the selling
stockholder beneficially owns prior to this offering, and the number of
shares of CD common stock that the selling stockholder may offer pursuant
to this prospectus. Unless set forth in this prospectus, to our knowledge,
the selling stockholder does not, or within the past three years has not
had, any material relationship with us or any of our predecessors or
affiliates or beneficially owns or owned in excess of 1% of our outstanding
CD common stock.
Since the date on which the selling stockholder provided this
information, the selling stockholder may have sold, transferred or
otherwise disposed of all or a portion of its shares of CD common stock in
a transaction or series of transactions exempt from the registration
requirements of the Securities Act. Information concerning the selling
stockholder may change from time to time and any changed information will
be set forth in supplements to this prospectus to the extent required.
The selling stockholder may from time to time offer and sell any
or all of the shares of CD common stock under this prospectus. We do not
anticipate that the selling stockholder will beneficially own any shares of
CD common stock after this offering.
Number of Shares of Percentage of
CD Common Stock Shares of CD Number of shares of
Beneficially Owned Common Stock CD Common Stock
Prior to the Outstanding Prior covered by this
Name of Selling Stockholder Offering(1) to the Offering(2) Prospectus
- --------------------------- ------------------- ------------------ --------------------
AP RES LLC......................... 0 * 9,920,000
- -----------
* Less than one percent (1%).
(1) Beneficial ownership is determined in accordance with the rules and
regulations of the Commission and generally includes (1) any securities
that are or will become exercisable within the next 60 days and (2)
consideration of voting or investment power with respect to the securities
at issue.
(2) Calculated based on 982,020,341 shares of CD common stock outstanding
as of March 15, 2002 and on each selling stockholder's beneficial ownership
of shares of our CD common stock as of April 1, 2002.
PLAN OF DISTRIBUTION
This prospectus, including any amendment or supplement, may be
used in connection with sales of up to 9,920,000 shares of our CD common
stock. Pursuant to the terms of the Stock Purchase Agreement, under certain
circumstances, we may be entitled to receive a portion of the proceeds from
the offering of the shares of CD common stock by the selling stockholder.
In addition, under certain circumstances set forth in the Stock Purchase
Agreement, we may be required to fund additional money or issue additional
shares of CD common stock to the selling stockholder. The transfer of the
shares of CD common stock covered by this prospectus by the selling
stockholder is subject to certain restrictions set forth in the Stock
Purchase Agreement. We are registering the shares of CD common stock
covered by this prospectus to permit holders to conduct public secondary
trading of these shares from time to time after the date of this
prospectus. Pursuant to the Registration Rights Agreement, we have agreed,
among other things, to pay all expenses incurred in connection with the
registration of the shares of CD common stock covered by this prospectus,
other than any other out-of-pocket expenses of the selling stockholder.
All or a portion of the shares of CD common stock beneficially
owned by the selling stockholder and offered hereby will be sold from time
to time:
o directly; or
o through underwriters, broker-dealers or agents, which may
include Credit Suisse First Boston Corporation, including
as set forth in the Stock Purchase Agreement, who may
receive compensation in the form of discounts, commissions
or concessions from the selling stockholder and/or from the
purchasers of the shares of CD common stock for whom they
may act as agent.
The shares of CD common stock may be sold from time to time in one
or more transactions at:
o fixed prices, which may be changed;
o prevailing market prices at the time of sale;
o varying prices determined at the time of sale; or
o negotiated prices.
Pursuant to the Stock Purchase Agreement, for a certain period of
time, the prices and manner of sale of the shares of CD common stock will be
determined solely in our discretion.
The sales described in the preceding paragraph may be effected in
transactions:
o on the New York Stock Exchange or any exchange on which our
shares of CD common stock may then be listed;
o in the over-the counter market;
o in transactions otherwise than on such exchanges or
services or in the over-the-counter market; or
o through the writing of options.
Pursuant to the Stock Purchase Agreement, for a certain period of
time, the prices and manner of sale of the shares of CD common stock will
be determined solely in our discretion.
In connection with sales of the shares of CD common stock or
otherwise, the selling stockholder may enter into hedging transactions with
broker-dealers. These broker-dealers may in turn engage in short sales of
the shares of CD common stock in the course of hedging their positions. The
selling stockholder may also sell the shares of CD common stock short and
deliver the shares of CD common stock to close out short positions, or loan
or pledge the shares of CD common stock to broker-dealers that in turn may
sell the shares of CD common stock.
The selling stockholder may not sell any, or may not sell all, of
the shares of CD common stock offered by it pursuant to this prospectus. In
addition, we cannot assure you that the selling stockholder will not
transfer, devise or gift the shares of CD common stock by other means not
described in this prospectus. The Stock Purchase Agreement sets forth
certain restrictions with respect to the transfer of the shares of CD
common stock offered by this prospectus.
The outstanding shares of CD common stock are listed for trading
on the New York Stock Exchange.
Any broker and any broker-dealers, agents or underwriters that
participate with the selling stockholder in the distribution of the shares
of CD common stock may be deemed to be "underwriters" within the meaning of
the Securities Act. In this case, any commissions received by these
broker-dealers, agents or underwriters and any profit on the resale of the
shares of CD common stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
The selling stockholder, any broker, broker-dealer or agent deemed
to be an underwriter within the meaning of Section 2(11) of the Securities
Act will be subject to the prospectus delivery requirements of the
Securities Act. At any time a particular offer of the shares of CD common
stock is made, a revised prospectus or prospectus supplement, if required,
will be distributed which discloses:
o the name of the selling stockholder and any participating
underwriters, broker-dealers or agents, which may include
Credit Suisse First Boston Corporation;
o the aggregate amount and type of securities being offered;
o the price at which the securities were sold and other
material terms of the offering;
o any discounts, commissions, concessions or other items
constituting compensation from the selling stockholder and
any discounts, commissions or concessions allowed or
reallowed or paid to dealers; and
o that the participating broker-dealers did not conduct any
investigation to verify the information in this prospectus
or incorporated in this prospectus by reference.
The prospectus supplement or a post-effective amendment will be
filed with the Commission to reflect the disclosure of additional
information with respect to the distribution of the shares of CD common
stock. In addition, if we receive notice from a selling stockholder that a
donee or pledgee intends to sell more than 500 shares of our CD common
stock, a supplement to this prospectus will be filed.
We have agreed to indemnify the Sponsor and any of its affiliates,
their respective directors and officers, each other person who participates
as an underwriter in an offering or sale of the shares of CD common stock
and each other person, if any, who controls the Sponsor or any such
underwriter within the meaning of the Securities Act, and the selling
stockholder has agreed to indemnify us, our directors, our officers who
sign the registration statement to which this prospectus relates, each
person, if any, who controls Cendant within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, each other
person who participates as an underwriter in an offering and sale of the
shares of CD common stock and each other person, if any, who controls the
selling stockholder or any such underwriter within the meaning of the
Securities Act, against specified liabilities arising under the Securities
Act.
The selling stockholder and any other person participating in such
distribution will be subject to the Exchange Act. The Exchange Act rules
include, without limitation, Regulation M, which may limit the timing of
purchases and sales of any of the shares of CD common stock by the selling
stockholder and any such other person. In addition, Regulation M of the
Exchange Act may restrict the ability of any person engaged in the
distribution of the shares of CD common stock to engage in market-making
activities with respect to the particular shares of CD common stock being
distributed for a period of up to five business days prior to the
commencement of distribution. This may affect the marketability of the
shares of CD common stock and the ability of any person or entity to engage
in market-making activities with respect to the shares of CD common stock.
We have agreed to use our reasonable efforts to keep the
registration statement of which this prospectus is a part effective until
the date when all of the shares of CD common stock registered under this
registration statement have been sold pursuant to the registration
statement.
Our obligation to keep the registration statement to which this
prospectus relates effective is subject to certain permitted exceptions. In
these cases, we may prohibit offers and sales of the shares of CD common
stock pursuant to the registration statement to which this prospectus
relates. In addition, we may suspend the use of this prospectus if we learn
of any event that causes this prospectus to include an untrue statement of
a material fact required to be stated in the prospectus or necessary to
make the statements in the prospectus not misleading in light of the
circumstances then existing. If this type of event occurs, a prospectus
supplement or post-effective amendment, if required, will be distributed to
the selling stockholder. The selling stockholder has agreed not to trade
shares of CD common stock from the time the selling stockholder receives
notice from us of this type of event until the selling stockholder receives
a prospectus supplement or amendment. These time periods will not exceed an
aggregate of 90 days in any 12-month period.
LEGAL MATTERS
The validity of the shares of CD common stock offered hereby will
be passed upon 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..
EXPERTS
The consolidated financial statements of Cendant Corporation and
subsidiaries incorporated in this prospectus by reference from our Annual
Report on Form 10-K for the year ended December 31, 2001 have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their report
(which expresses an unqualified opinion and includes an explanatory
paragraph relating to the modification of accounting for interest income
and impairment of beneficial interests in securitization transactions, the
accounting for derivative instruments and hedging activities and the
revision of certain revenue recognition policies as discussed in Note 1),
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
Cendant is subject to the informational requirements of the
Exchange Act, and in accordance therewith files reports, proxy statements
and other information with the Commission. Such reports, proxy statements
and other information can be inspected and copied at prescribed rates at
the public reference facilities maintained by the Commission at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Regional
Office of the Commission located at Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, IL 60661. The Commission also
maintains a website that contains reports, proxy and information statements
and other information. Please call the Commission at 1-800-SEC-0330 for
further information on the public reference rooms. The website address is
http://www.sec.gov. In addition, such material can be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Cendant is paying all of the selling stockholder's expenses
related to this offering. The following table sets forth the approximate
amount of fees and expenses payable by Cendant in connection with this
Registration Statement and the distribution of the shares of CD common
stock registered hereby. All of the amounts shown are estimates except the
Securities and Exchange Commission registration fee.
Securities and Exchange Commission Registration Fee......................... $ 17,112
Accounting Fees and Expenses................................................ $ 100,000
Legal Fees and Expenses..................................................... $ 50,000
Miscellaneous............................................................... $ 200,000
-------
Total $ 367,112
=======
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 to 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 or redemption 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 interests 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 against expenses (including attorney's fees) actually and
reasonably incurred by the person in connection with the defense and
settlement of such action or suit, except that no indemnification is
permitted without judicial approval if the person to be indemnified has
been adjudged to be liable to the corporation. Where a present or former
director or officer 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 the 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
The following is a list of all exhibits filed as a part of this
registration statement on Form S-3, including those incorporated in this
registration statement by reference.
Exhibit
Number Description of Exhibits
- ------- -----------------------
3.1 Amended and Restated Certificate of Incorporation of
Cendant Corporation (incorporated by reference to Exhibit
3.1 to Cendant Corporation's Quarterly Report on Form
10-Q/A filed by Cendant Corporation on July 28, 2000 for
the quarterly period ended March 31, 2000).
3.2 Amended and Restated By-Laws of Cendant Corporation
(incorporated by reference to Exhibit 3.2 to Cendant
Corporation's Quarterly Report on Form 10-Q/A filed by
Cendant Corporation on July 28, 2000 for the quarterly
period ended March 31, 2000).
4.1 Form of Stock Certificate (incorporated by reference to
Exhibit 4.1 to Cendant Corporation's Annual Report on
Form 10-K filed by Cendant Corporation on March 29, 2001
for the yearly period ended December 31, 2000).
4.2 Registration Rights Agreement, dated as of April 17, 2002,
by and among AP RES LLC and Cendant Corporation.
5.1 Opinion of Eric J. Bock, Esq.
10.1 Stock Purchase Agreement, dated as of April 17, 2002, by
and among Apollo Investment Fund III, L.P., Apollo
Overseas Partners III, L.P., Apollo (UK) Partners III,
L.P., AP RES LLC, Cendant Corporation and Cendant Real
Estate Holdings Inc.
23.1 Consent of Deloitte & Touche LLP relating to the
financial statements of Cendant Corporation.
23.2 Consent of KPMG LLP relating to the financial statements
of Galileo International, Inc.
23.3 Consent of Eric J. Bock, Esq. (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of the
Registration Statement).
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(b) 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 end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
(c) 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, however, that paragraphs (1)(a) and (1)(b) shall 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
Securities and Exchange Commission by the Registrant pursuant to Section 13
or Section 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, as amended, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 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 shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933, as amended, 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
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Cendant Corporation 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 the 19th day of April, 2002.
CENDANT CORPORATION
By: /s/ James E. Buckman
-----------------------------------------
Name: James E. Buckman
Title: Vice Chairman and General Counsel
Each person whose signature appears below hereby constitutes and
appoints each of Eric J. Bock and James E. Buckman, or either of them, each
acting alone, his true and lawful attorney-in fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) under the Securities Act and to sign any instrument, contract,
document or other writing of or in connection with the Registration
Statement and any amendments and supplements thereto (including
post-effective amendments) and to file the same, with all exhibits thereto,
and other documents in connection therewith, including this power of
attorney, with the Securities and Exchange Commission and any applicable
securities exchange or securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority
to do and perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, each acting alone, 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 below by the following persons in
the capacities indicated on April 19, 2002.
Signature Title
--------- -----
/s/ Henry Silverman
- ------------------------------------------ Chairman of the Board of Directors,
Henry R. Silverman President, Chief Executive Officer and
Director
/s/ James E. Buckman
- ------------------------------------------ Vice Chairman, General Counsel and Director
James E. Buckman
/s/ Stephen P. Holmes
- ------------------------------------------ Vice Chairman and Director
Stephen P. Holmes
/s/ Kevin M. Sheehan
- ------------------------------------------ Senior Executive Vice President and Chief
Kevin M. Sheehan Financial Officer (Principal Financial
Officer)
/s/ Tobia Ippolito
- ------------------------------------------ Executive Vice President, Finance and Chief
Tobia Ippolito Accounting Officer (Principal Accounting
Officer)
/s/ Myra J. Biblowit
- ------------------------------------------ Director
Myra J. Biblowit
/s/ John C. Malone
- ------------------------------------------ Director
Dr. John C. Malone
/s/ Cheryl D. Mills
- ------------------------------------------ Director
Cheryl D. Mills
/s/ Leonard S. Coleman
- ------------------------------------------ Director
Leonard S. Coleman
/s/ Martin L. Edelman
- ------------------------------------------ Director
Martin L. Edelman
/s/ Sheli Z. Rosenberg
- ------------------------------------------ Director
Sheli Z. Rosenberg
- ------------------------------------------ Director
The Rt. Hon. Brian Mulroney, P.C., C.C.,
LL.D.
/s/ Robert W. Pittman
- ------------------------------------------ Director
Robert W. Pittman
/s/ Robert F. Smith
- ------------------------------------------ Director
Robert F. Smith
/s/ Robert E. Nederlander
- ------------------------------------------ Director
Robert E. Nederlander
- ------------------------------------------ Director
The Honorable William S. Cohen
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------- ----------------------
3.1 Amended and Restated Certificate of Incorporation of
Cendant Corporation (incorporated by reference to Exhibit
3.1 to Cendant Corporation's Quarterly Report on Form
10-Q/A filed by Cendant Corporation on July 28, 2000 for
the quarterly period ended March 31, 2000).
3.2 Amended and Restated By-Laws of Cendant Corporation
(incorporated by reference to Exhibit 3.2 to Cendant
Corporation's Quarterly Report on Form 10-Q/A filed by
Cendant Corporation on July 28, 2000 for the quarterly
period ended March 31, 2000).
4.1 Form of Stock Certificate (incorporated by reference to
Exhibit 4.1 to Cendant Corporation's Annual Report on
Form 10-K filed by Cendant Corporation on March 29, 2001
for the yearly period ended December 31, 2000).
4.2 Registration Rights Agreement, dated as of April 17,
2002, by and among AP RES LLC and Cendant Corporation.
5.1 Opinion of Eric J. Bock, Esq.
10.1 Stock Purchase Agreement, dated as of April 17, 2002, by
and among Apollo Investment Fund III, L.P., Apollo
Overseas Partners III, L.P., Apollo (UK) Partners III,
L.P., AP RES LLC, Cendant Corporation and Cendant Real
Estate Holdings Inc.
23.1 Consent of Deloitte & Touche LLP relating to the
financial statements of Cendant Corporation.
23.2 Consent of KPMG LLP relating to the financial statements
of Galileo International, Inc.
23.3 Consent of Eric J. Bock, Esq. (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of the
Registration Statement).
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 17, 2002, by and
among AP RES LLC, a Delaware limited liability company (the "Sponsor"), and
Cendant Corporation ("Cendant").
1. Introduction. Cendant, Cendant Real Estate Holdings Inc.
("Purchaser"), Apollo Investment Fund III, L.P., Apollo Overseas Partners
III, L.P. and Apollo (UK) Partners III, L.P. and the Sponsor have entered
into a Stock Purchase Agreement (the "Stock Purchase Agreement") pursuant
to which Purchaser will acquire the Sponsor Shares from the Sponsor in
exchange for the Closing Cendant Shares (as defined in the Stock Purchase
Agreement) and, if required, the Adjustment Amount (as defined in the Stock
Purchase Agreement), which may, at Purchaser's option, be paid in
Additional Cendant Shares (as defined in the Stock Purchase Agreement).
This Agreement shall become effective upon the issuance of the Cendant
Shares to the Sponsor pursuant to the Stock Purchase Agreement. Certain
capitalized terms used in this Agreement are defined in Section 3 hereof.
References to Sections shall be to sections of this Agreement.
2. Registration Under Securities Act, Etc.
2.1 Shelf Registration Statement.
(a) As promptly as practicable following the Closing
Date, Cendant shall use its reasonable efforts to file and cause to be
effective a registration statement on Form S-3 (or other form of
registration statement if Form S-3 is not available) for an offering of all
of the Registrable Securities to be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement") and thereafter shall use its reasonable efforts to keep the
Shelf Registration Statement effective and usable for the resale of
Registrable Securities until the date on which all Registrable Securities
so registered have been sold pursuant to the Shelf Registration Statement
(such date being referred to as the "Effectiveness Termination Date"). In
the event that Purchaser delivers the Additional Cendant Shares pursuant to
the Stock Purchase Agreement following the Closing Date, Cendant shall use
its reasonable efforts to amend the Shelf Registration Statement (or file a
new Shelf Registration Statement, if required, in which case all references
herein to the Shelf Registration Statement shall include such new Shelf
Registration Statement) as promptly as practicable following the delivery
of such Additional Cendant Shares to include such shares, unless such
Additional Cendant Shares were already included in the initial Shelf
Registration Statement (it being understood and agreed that Cendant may, at
its option, include in the initial Shelf Registration Statement an
estimated number of Additional Cendant Shares that may be issuable pursuant
to the Stock Purchase Agreement).
(b) Expenses. Cendant shall pay any Registration Expenses
in connection with the registration under Section 2.1(a).
(c) Effectiveness. Cendant shall not be required to keep
the Shelf Registration Statement effective during any period or periods (up
to a total of 90 days in any 12-month period) if the continued
effectiveness of the Shelf Registration Statement would require Cendant to
disclose a material financing, acquisition or other corporate development
and Cendant shall have determined that such disclosure is not in the best
interests of Cendant; provided, further, that the requirement to use
reasonable efforts to keep the Shelf Registration Statement effective shall
be extended one day for each day that Cendant allows the effectiveness of
the registration statement to lapse in reliance on the preceding proviso.
(d) Selection of Underwriters. At Cendant's option, any
sale of Registrable Securities pursuant to the Shelf Registration Statement
may be effected pursuant to an underwritten offering in accordance with
Section 2.3 hereof. If a registration pursuant to Section 2.1(a) involves
an underwritten offering, the underwriter or underwriters thereof shall be
selected by Cendant, provided that if the Sponsor reasonably object to the
qualifications of such underwriter or underwriters, Cendant may select one
or more underwriters other than the underwriter or underwriters to which
objection was so made. If Cendant elects to effect an underwritten
offering, Cendant will cooperate with such underwriter or underwriters in
reasonable and customary matters such as requesting "comfort" letters from
its accountants, making appropriate executives available for meetings with
investors and the underwriter or underwriters, and assisting the
underwriter or underwriters with their due diligence investigations.
2.2 Registration Procedures. If and whenever Cendant is
required to use its reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections
2.1(a), Cendant shall:
(i) subject to Section 2.1(c), prepare and file
with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement until the Effectiveness Termination Date;
(ii) furnish to the Sponsor such number of
conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as the Sponsor may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities;
(iii) notify the Sponsor and the managing
underwriter or underwriters, if any, promptly and confirm such advice
in writing promptly thereafter:
(A) when the registration statement, the prospectus
or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed, and, with
respect to the registration statement or any post-effective amendment
thereto, when the same has become effective;
(B) of any request by the Commission for amendments
or supplements to the registration statement or the prospectus or for
additional information;
(C) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or
the initiation of any proceedings by any Person for that purpose;
(D) if at any time the representations and
warranties of Cendant made as contemplated by Section 2.3 below cease
to be true and correct; and
(E) of the receipt by Cendant of any notification
with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws
of any jurisdiction or the initiation or threat of any proceeding for
such purpose;
(iv) notify the Sponsor, at any time when a
prospectus relating to a registration statement is required to be
delivered under the Securities Act, upon Cendant's discovery that, or
upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made, and at the request of the Sponsor
promptly prepare and furnish to the Sponsor and each underwriter, if
any, a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made;
(v) use its reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
registration statement at the earliest possible moment;
(vi) otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months,
but not more than eighteen months, beginning with Cendant's first
full calendar quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder, and will
furnish to each such seller prior to the filing thereof a copy of any
amendment or supplement to such registration statement or prospectus
and shall not file any thereof to which any such seller shall have
reasonably objected on the grounds that such amendment or supplement
does not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder; and
(vii) take such other action that may be requested
by the Sponsor that are customary and reasonably required in
connection with the sale of Registrable Securities.
The Sponsor shall furnish Cendant such information regarding the
Sponsor and the distribution of the Registrable Securities as Cendant may
from time to time reasonably request in writing.
Cendant will not file any registration statement or amendment
thereto or any prospectus or any supplement thereto (excluding such
documents incorporated by reference which constitute required reports under
the Exchange Act) to which the Sponsor shall reasonably object, provided
that Cendant may file such document in a form required by law or upon the
advice of its counsel.
The Sponsor agrees by acquisition of the Registrable Securities
that, upon receipt of any notice from Cendant of the occurrence of any
event of the kind described in subdivisions (iii) and (iv) of this Section
2.2, the Sponsor will forthwith discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivisions (iii) and
(iv) of this Section 2.2 and, if so directed by Cendant, will deliver to
Cendant (at Cendant's reasonable expense) all copies, other than permanent
file copies, then in such holder's possession of the prospectus relating to
such Registrable Securities current at the time of receipt of such notice.
2.3 Underwritten Offerings. (a) In the event of an underwritten
offering pursuant to the Shelf Registration Statement, Cendant and the
Sponsor will enter into an underwriting agreement with such underwriters
for such offering, such agreement to be reasonably satisfactory in
substance and form to Cendant and the Sponsor, and to contain such
representations and warranties and such other terms as are generally
prevailing in agreements of such type, including, without limitation,
customary indemnities. The Sponsor will cooperate with Cendant in the
negotiation of the underwriting agreement and will give consideration to
the reasonable suggestions of Cendant regarding the form thereof. The
Sponsor shall be a party to such underwriting agreement. The Sponsor agrees
that it will complete and execute all questionnaires, agreements and other
documents (other than powers of attorney) reasonably required under the
terms of any underwriting arrangements; provided that any indemnity
required by the Sponsor shall not be greater in scope than the indemnity
provided in Section 2.4(b)(i).
(b) The Sponsor agrees by acquisition of the Registrable
Securities, if so required by the managing underwriter, not to sell, make
any short sale of, loan, grant any option for the purchase of, effect any
public sale or distribution of, make any sale or distribution pursuant to
Rule 144 (or any successor provision) under the Securities Act of or
otherwise dispose of any shares of Cendant common stock, during the period
of not more than 90 days after any underwritten registration of Cendant
common stock pursuant to Section 2.1 has become effective, except as part
of such underwritten registration or other sale pursuant to this Agreement,
if the Sponsor participates in such registration.
2.4 Indemnification.
(a) Indemnification by Cendant. In the event of any registration
of any securities of Cendant under the Securities Act, Cendant will, and
hereby agrees to, indemnify and hold harmless the Sponsor and any of its
affiliates, their respective directors and officers, each other Person who
participates as an underwriter in the offering or sale of such securities
and each other Person, if any, who controls such Sponsor or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which any of the
Sponsor or any such director or officer or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are
based upon (x) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, or (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 the Sponsor and each such director, officer, underwriter and
controlling person for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
liability, action or proceeding, provided that Cendant shall not be liable
in any such case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
in reliance upon and in conformity with written information furnished to
Cendant concerning the Sponsor through an instrument duly executed by any
of the Sponsor specifically stating that it is for use in the preparation
thereof, and provided, further, that Cendant shall not be liable to the
Sponsor, or its directors and officers, or to any underwriter or other
Person, if any, who controls the Sponsor or any such underwriter within the
meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of (i) the Sponsor's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended,
within the time required by the Securities Act to the Person asserting the
existence of an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus, (ii) the use of any final prospectus,
as amended or supplemented, by or on behalf of the Sponsor after such time
as the obligation of Cendant to keep the related registration statement
effective has expired, or (iii) any violation of any federal or state
securities laws, rules or regulations committed by the Sponsor (other than
any violation that arises out of or is based upon the circumstances
described in clause (x) or (y) above and as to which the Sponsor would
otherwise be entitled to indemnification hereunder). Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of the Sponsor or any such director, officer, underwriter or
controlling person and shall survive the transfer of such securities by the
Sponsor.
(b) Indemnification by the Sponsor. Cendant may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2.1 of this Agreement that Cendant
shall have received an undertaking satisfactory to it from the prospective
seller of such Registrable Securities, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in subdivision (a) of
this Section 2.4) Cendant, each director of Cendant, each officer of
Cendant, each other Person, if any, who controls Cendant within the meaning
of the Securities Act, each other Person who participates as an underwriter
in the offering or sale of such securities and each other Person, if any,
who controls such holder or any such underwriter within the meaning of the
Securities Act, with respect to (i) any statement or alleged statement in
or omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to Cendant concerning
the Sponsor through an instrument duly executed by the Sponsors
specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement, (ii) the use of any prospectus by or
on behalf of the Sponsor after Cendant has notified the Sponsor that such
prospectus contains an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, (iii) the failure to send or deliver to a Person to
whom the Sponsor sells Registrable Securities at or prior to the written
confirmation of sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is most recent, if
Cendant has previously furnished copies thereof to the Sponsor or its
representatives, or (iv) any violation by the Sponsor of any federal or
state securities law or rule or regulation thereunder (other than any
violation that arises out of or is based upon circumstances described in
clause (x) or (y) of Section 2.4(a) above and as to which the Sponsor is
entitled to indemnification thereunder). Any such indemnity shall remain in
full force and effect, regardless of any investigation made by or on behalf
of Cendant or any such director, officer or controlling person and shall
survive the transfer of such securities by the Sponsor. Notwithstanding the
foregoing, the indemnity obligation of the Sponsor pursuant to this Section
2.4(b) shall be limited to an amount equal to the total proceeds (before
deducting underwriting discounts and commissions and expenses) received by
such Sponsor for the sale of shares by such Sponsor in a registration
hereunder.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2.4, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of
the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 2.4, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to
the extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the consent of
the indemnified party, consent to entry of any judgment or enter into any
settlement of any such action which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability, or a covenant not to sue, in respect
to such claim or litigation. No indemnified party shall consent to entry of
any judgment or enter into any settlement of any such action the defense of
which has been assumed by an indemnifying party without the consent of such
indemnifying party.
(d) Indemnification Payments. The indemnification required by this
Section 2.4 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
(e) Contribution. If the indemnification provided for in the
preceding subdivisions of this Section 2.4 is unavailable to an indemnified
party in respect of any expense, loss, claim, damage or liability referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such expense, loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative
fault of Cendant, on the one hand, and of the Sponsor or underwriter, as
the case may be, on the other, in connection with the statements or
omissions which resulted in such expense, loss, damage or liability. The
relative fault of Cendant on the one hand and of the Sponsor or
underwriter, as the case may be, on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates
to information supplied by Cendant, by the Sponsor or underwriter, as the
case may be, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, provided that the foregoing contribution agreement shall not
inure to the benefit of any indemnified party if indemnification would be
unavailable to such indemnified party by reason of the provisions contained
in the first sentence of subdivision (a) of this Section 2.4, and in no
event shall the obligation of any indemnifying party to contribute under
this subdivision (f) exceed the amount that such indemnifying party would
have been obligated to pay by way of indemnification if the indemnification
provided for under subdivisions (a) or (b) of this Section 2.4 had been
available under the circumstances.
Cendant and the Sponsor agree that it would not be just and
equitable if contribution pursuant to this subdivision (e) were determined
by pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in the preceding sentence and subdivision (c) of this
Section 2.4, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim.
Notwithstanding the provisions of this subdivision (e), no Sponsor
or underwriter shall be required to contribute any amount in excess of the
amount by which (i) in the case of any such holder, the net proceeds
received by such holder from the sale of Registrable Securities or (ii) in
the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to
the public exceeds, in any such case, the amount of any damages that such
holder or underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
Closing Date: As defined in the Stock Purchase Agreement.
Commission: The Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
Company: As defined in the introductory paragraph of this
Agreement.
Exchange Act: The Securities Exchange Act of 1934, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular Section of the Securities Exchange Act of 1934 shall include a
reference to the comparable Section, if any, of any such similar Federal
statute.
Person: A corporation, an association, a partnership, an
organization, business, an individual, a governmental or political
subdivision thereof or a governmental agency.
Registrable Securities: The Closing Cendant Shares (and, if
applicable, the Additional Cendant Shares) issued to the Sponsor pursuant
to the Stock Purchase Agreement and any securities issued or issuable with
respect to the Closing Cendant Shares (and if applicable, the Additional
Cendant Shares) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
other reorganization or otherwise. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable
Securities when (a) a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such
registration statement, (b) they shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the Securities Act,
(c) they shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered
by Cendant and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any
similar state law then in force, (d) they shall have ceased to be
outstanding, or (e) returned to Cendant pursuant to the terms of the Stock
Purchase Agreement.
Registration Expenses: All expenses incident to Cendant's
performance of or compliance with Section 2, including, without limitation,
all registration, filing and NASD fees, all stock exchange listing fees,
all fees and expenses of complying with securities or blue sky laws, all
brokerage commissions, underwriting discounts and commissions and transfer
taxes, if any, all word processing, duplicating and printing expenses,
messenger and delivery expenses, the fees and disbursements of counsel for
Cendant and of its independent public accountants, including the expenses
of any special audits or "cold comfort" letters required by or incident to
such performance and compliance, the reasonable fees and disbursements of
counsel retained by the Sponsor in connection with the registration of any
Registrable Securities and the distribution of such shares and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding any other out-of-pocket expenses of the Sponsor.
Securities Act: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
of the same shall be in effect at the time. References to a particular
Section of the Securities Act of 1933 shall include a reference to the
comparable Section, if any, of any such similar federal statute.
4. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended and
Cendant may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if Cendant shall have obtained
the written consent to such amendment, action or omission to act, of the
Sponsor. The Sponsor shall be bound by any consent authorized by this
Section 4, whether or not such Registrable Securities shall have been
marked to indicate such consent.
(b) Notices. Except as otherwise provided in this Agreement, all
notices, requests and other communications to any Person provided for
hereunder shall be in writing and shall be given to such Person (a) in the
case of the Sponsor, addressed to such party in the manner set forth in the
Stock Purchase Agreement or at such other address as such party shall have
furnished to Cendant in writing, or (b) in the case of Cendant, at 9 West
57th Street, 37th Floor, New York, New York 10019, to the attention of Eric
J. Bock, or at such other address, or to the attention of such other
officer, as Cendant shall have furnished to each holder of Registrable
Securities at the time outstanding. Each such notice, request or other
communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means (including,
without limitation, by air courier), when delivered at the address
specified above, provided that any such notice, request or communication to
any holder of Registrable Securities shall not be effective until received.
(c) Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement
which are for the benefit of the parties hereto other than Cendant shall
also be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities, subject to the provisions respecting the minimum
numbers or percentages of shares of Registrable Securities required in
order to be entitled to certain rights, or take certain actions, contained
herein.
(d) Descriptive Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for reference only
and shall not limit or otherwise affect the meaning hereof.
(e) Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
laws of the State of New York without reference to the principles of
conflicts of laws (other than Sections 5-1401 and 5-1402 of the New York
General Obligations Law).
(f) Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but
all such counterparts shall together constitute one and the same
instrument.
(g) Entire Agreement. This Agreement embodies the entire agreement
and understanding between Cendant and each other party hereto relating to
the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
(h) Submission to Jurisdiction. Any legal action or proceeding
with respect to this Agreement may be brought in the courts of the State of
New York or of the United States of America for the Southern District of
New York, and, by execution and delivery of this Agreement, Cendant hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts and appellate
courts from any thereof. Each party hereby irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof to such party by
registered or certified mail, postage prepaid, return receipt requested, to
such party at its address specified in Section 5. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND EACH OF THE PARTIES HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS.
(i) Severability. If any provision of this Agreement, or the
application of such provisions to any Person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such
provision to Persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers hereunto duly
authorized as of the date first above written.
CENDANT CORPORATION
By: /s/ Eric J. Bock
--------------------------------
Name: Eric J. Bock
Title: Senior Vice President &
Corporate Secretary
AP RES LLC
By: Apollo Management, L.P,
its Manager
By: AIF III Management, Inc.,
its General Partner
By: /s/ Josh Harris
--------------------------------
Name: Josh Harris
Title: Vice President
Exhibit 5.1
[LETTERHEAD OF CENDANT CORPORATION]
April 19, 2002
Cendant Corporation
9 West 57th Street
New York, New York 10019
Re: Cendant Corporation's Registration Statement on Form S-3
Ladies and Gentlemen:
I am the Senior Vice President, Law and Secretary of Cendant
Corporation, a Delaware corporation (the "Company"), and am acting as
counsel in connection with its filing with the Securities and Exchange
Commission (the "Commission") of a registration statement on Form S-3 (the
"Registration Statement") with respect to the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 9,920,000
shares of the Company's CD common stock, par value $0.01 per share (the
"Shares"). The Company issued the Shares to AP RES LLC (the "Selling
Stockholder") pursuant to the terms of a stock purchase agreement, dated as
of April 17, 2002, by and among Apollo Investment Fund III, L.P., Apollo
Overseas Partners III, L.P., Apollo (UK) Partners III, L.P., the Selling
Stockholder, the Company and Cendant Real Estate Holdings Inc. (the "Stock
Purchase Agreement"). The Shares are to be offered and sold from time to
time by the Selling Stockholder.
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of (i) the
Registration Statement; (ii) the Amended and Restated Certificate of
Incorporation of the Company, as amended to the date hereof; (iii) the
By-Laws of the Company, as currently in effect; (iv) the Stock Purchase
Agreement; (v) resolutions of the Board of Directors of the Company
relating to the transactions contemplated by the Stock Purchase Agreement;
and (iv) 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 opinion 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 to me as originals, the conformity to original
documents of all documents submitted to me as certified or photostatic
copies and the authenticity of the originals of such latter documents. In
making my examination of executed documents, I have assumed that the
parties thereto, other than the Company, had 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 the
execution and delivery of such documents by the parties to such documents,
and the validity and binding effect thereof. As to any facts material to
the opinions expressed herein which I did not independently establish or
verify, I have relied upon oral or written statements and representations
of officers and other representatives of the Company and others.
I am admitted to the bars in the States of New York and New
Jersey and do not express any opinion as to the laws of any other
jurisdiction.
Based upon and subject to the limitations, qualifications,
exceptions and assumptions set forth above, I am of the opinion that the
Shares have been duly authorized and validly issued and are fully paid and
non-assessable.
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 Matters" 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 Securities Act or the rules and regulations of the
Commission.
Very truly yours,
/s/ Eric J. Bock
--------------------------------
Eric J. Bock, Esq.
Senior Vice President, Law
and Secretary
Exhibit 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of April 17,
2002, by and among Apollo Investment Fund III, L.P., Apollo Overseas
Partners III, L.P. and Apollo (UK) Partners III, L.P. (collectively, the
"Original Sponsors"), AP RES LLC, a Delaware limited liability company (the
"Sponsor"), Cendant Corporation ("Cendant") and Cendant Real Estate
Holdings Inc. ("Purchaser").
WHEREAS, the Sponsor is the beneficial and record owner of
6,924,860.99 shares (the "Sponsor Shares") of NRT common stock, par value
$0.01 per share, which represent all of the outstanding shares of common
stock of NRT Incorporated ("NRT");
WHEREAS, the Original Sponsors contributed the Sponsor Shares to
the Sponsor, which is wholly owned by the Original Sponsors;
WHEREAS, pursuant to a letter agreement, dated as of December 5,
2000 (the "Option Agreement"), by and among the Original Sponsors, NRT and
Cendant, the Original Sponsors granted to Cendant the right and option (the
"Option") to purchase all of the Sponsor Shares (which option is binding
upon the Sponsor);
WHEREAS, pursuant to the Option Agreement, NRT (or Cendant, on
NRT's behalf) has the obligation to pay $166 million to the Original
Sponsors (the "Additional True Up Amount") on the earlier of the date of
the exercise of the Option or August 11, 2002;
WHEREAS, the parties hereto deem it desirable and in their
respective best interests to enter into this Agreement to provide for the
acquisition of the Sponsor Shares by Purchaser in exchange for shares of CD
common stock, par value $0.01 per share, of Cendant ("Cendant Common
Stock"), on the terms and subject to the conditions set forth herein;
WHEREAS, the parties intend for the terms and provisions of this
Agreement to supercede and replace the obligations of Cendant and NRT under
the Option Agreement and the Amended and Restated Stockholders Agreement,
dated as of September 30, 1999, by and among NRT, Apollo Management, L.P.,
the Original Sponsors and Cendant (the "Stockholders Agreement"); and
WHEREAS, concurrently with the execution of this Agreement,
Cendant and the Sponsor are entering into a Registration Rights Agreement
(the "Registration Rights Agreement") with respect to the Cendant Common
Stock issuable pursuant to this Agreement;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Acquisition of the Sponsor Shares.
(a) At the Closing, (i) the Sponsor shall sell, assign, transfer
and convey to Purchaser, without representation or warranty (other than as
expressly provided herein), all of its right, title and interest in and to
the Sponsor Shares, free and clear of all Liens (as defined below), other
than Liens imposed as a result of actions by NRT, Purchaser or their
affiliates (provided that the Sponsor and its affiliates shall not be
deemed to be affiliates of NRT, Purchaser or their affiliates), and (ii)
Purchaser shall sell, assign, transfer and convey to the Sponsor, without
representation or warranty (other than as expressly provided herein), an
aggregate number of shares of Cendant Common Stock (the "Closing Cendant
Shares") equal to the quotient (rounded up to the nearest whole number)
obtained by dividing (x) $186 million by (y) the Cendant Closing Price (as
defined below), free and clear of all Liens, other than Liens imposed as a
result of actions by the Original Sponsors, the Sponsor or their affiliates
(provided that NRT, Purchaser or their affiliates shall not be deemed to be
affiliates of the Sponsor and its affiliates). For purposes of this
Agreement, the "Cendant Closing Price" shall mean the closing price per
share of Cendant Common Stock on the New York Stock Exchange (the "NYSE")
Composite Transaction Tape, as reported in the Wall Street Journal
(Northeast Edition), absent manifest error, on the trading day immediately
preceding the Closing Date.
(b) At the Closing, (i) the Sponsor shall deliver to Purchaser (A)
stock certificates representing the Sponsor Shares, duly endorsed for
transfer or accompanied by stock powers so duly endorsed, (B) evidence
reasonably satisfactory to Purchaser that Bear, Stearns & Co. Inc.'s
participation in the Sponsor Shares will be terminated in full at and as of
the Closing (and a statement in the form of Exhibit A hereto, executed by
Bear, Stearns & Co. Inc., shall be deemed to be reasonably acceptable to
Purchaser), and (C) a certificate in form and substance reasonably
satisfactory to Purchaser and duly executed by the Sponsor certifying all
facts necessary to exempt the transactions contemplated hereby from
withholding pursuant to the Foreign Investment in Real Property Act and
(ii) Purchaser shall deliver to the Sponsor certificates representing the
Closing Cendant Shares registered in the names of the Sponsor in accordance
with written instructions of the Sponsor delivered to Purchaser prior to
the Closing Date.
(c) On or prior to the Closing Date, Purchaser and the Sponsor
shall open a brokerage account (the "Brokerage Account") with a broker
selected by Purchaser in its sole discretion (the "Broker") and reasonably
acceptable to the Sponsor in terms of financial strength and national
reputation. Subject to the penultimate sentence of this paragraph, the
Brokerage Account shall provide Purchaser with the sole ability, in its
sole discretion, to sell, or cause to be sold, any shares of Cendant Common
Stock placed therein. The Closing Cendant Shares shall be deposited in the
Brokerage Account on the Closing Date in the name of and for the account of
the Sponsor. From and after the date on which the Shelf Registration
Statement (as defined in the Registration Rights Agreement) is declared
effective by the Securities and Exchange Commission (the "SEC"), Purchaser
shall from time to time cause the sale of the Closing Cendant Shares on
behalf of the Sponsor and shall use its reasonable efforts to cause the
sale of all of the Closing Cendant Shares to be completed no later than the
later of (i) the Payout Date or (ii) 30 days following the effectiveness
date of the Shelf Registration Statement (the later of such dates being
referred to as the "End Date"); provided, however, that if within 30 days
after the Shelf Registration Statement is declared effective, the Shelf
Registration Statement shall become subject to any stop order, injunction
or other order or requirement of the SEC or other governmental agency or
court, the date referred to in this clause (ii) shall be delayed until the
date on which the Shelf Registration Statement shall have been effective
for an aggregate of 30 days. Upon the settlement of each such sale, the
Broker will immediately remit, by wire transfer of immediately available
funds, the Proceeds (as defined below) of such sale up to an aggregate of
$186 million to such account or accounts specified by the Sponsor. If five
business days after the Payout Date, Purchaser shall be in default of its
obligations under Section 2(g) hereof, the Sponsor shall have the sole
ability, in its sole discretion, to sell or cause to be sold at prevailing
market prices, after giving effect to appropriate discounts (if any) for
block trades and restrictions on transfers, any Cendant Common Stock, in
one or a series of transactions, still remaining in the Brokerage Account.
For purposes hereof, "Payout Date" shall mean June 28, 2002 or, in the
event the Shelf Registration Statement is reviewed by the SEC prior to it
being declared effective, August 11, 2002.
(d) If the aggregate Proceeds from the sale of all of the Closing
Cendant Shares equal or exceed $186 million, Purchaser and the Sponsor
shall instruct the Broker, on the settlement date following the final sale
of the Closing Cendant Shares (the "Determination Date"), to pay $186
million of the Proceeds to the Sponsor and the remaining amounts (if any)
in the Brokerage Account to Cendant. As used in this Agreement, the
"Proceeds" from any sale of Cendant Common Stock on behalf of the Sponsor
hereunder shall be equal to the cash proceeds from such sale, net of all
underwriters', sale or brokers' commissions and discounts incurred in
connection with such sale.
(e) If the Proceeds from the sale of all of the Closing Cendant
Shares are less than $186 million (the difference between $186 million and
the Proceeds from the sale of all of the Closing Cendant Shares being
referred to as the "Adjustment Amount"), Purchaser shall pay to the Sponsor
the Adjustment Amount. The Adjustment Amount shall be payable, at
Purchaser's option (the exercise of which shall be set forth in a written
notice to the Sponsor delivered on the first business day following the
Determination Date), (i) by wire transfer in immediately available funds or
(ii) by delivery to the Brokerage Account on behalf of the Sponsor of a
number of additional shares of Cendant Common Stock (the "Additional
Cendant Shares"), the Proceeds of which shall be equal to or exceed the
Adjustment Amount. Purchaser shall cause the Additional Cendant Shares to
be sold on behalf of the Sponsor as soon as practicable following the
Determination Date. If the aggregate Proceeds from the sale of all of the
Additional Cendant Shares equal or exceed the Adjustment Amount, Purchaser
and the Sponsor shall instruct the Broker, on the settlement date following
the final sale of the Additional Cendant Shares, to pay the Adjustment
Amount to the Sponsor and the remaining amounts (if any) in the Brokerage
Account to Purchaser. If the aggregate Proceeds from the sale of the
Additional Cendant Shares do not equal or exceed the Adjustment Amount,
Purchaser or Cendant shall promptly following the settlement date of the
sale of the Additional Cendant Shares either pay to the Sponsor by wire
transfer of immediately available funds such difference or continue to
deposit additional Cendant Shares into the Brokerage Account (which shares
shall also constitute Additional Cendant Shares) until the Sponsor shall
have received an aggregate of $186 million in Proceeds or cash payments
hereunder. The parties hereto shall treat any payments made to the Sponsor
or Purchaser, as the case may be, pursuant to this Section 1(e) as a
purchase price adjustment for all tax purposes.
(f) Purchaser shall be entitled to deduct and withhold, or cause
to be deducted or withheld, from the consideration payable to Sponsor
hereunder such amounts as are required to be deducted or withheld with
respect to the making of such payment under the Internal Revenue Code of
1986, as amended (the "Code"), or any provision of applicable state, local
or foreign tax law. To the extent that amounts are so deducted and
withheld, such deducted and withheld amounts shall be treated for all
purposes of this Agreement as having been paid to such holders in respect
of which such deduction and withholding was made.
(g) Notwithstanding the foregoing, if by the Payout Date, the
Sponsor has not received the aggregate of $186 million in Proceeds or cash
payments from Purchaser under this Section 1, then Purchaser and Cendant,
jointly and severally, shall be obligated to pay to the Sponsor, no later
than the Payout Date, an amount in cash by wire transfer of immediately
available funds equal to the difference between (i) $186 million and (ii)
the aggregate Proceeds from the Brokerage Account received by the Sponsor
plus any cash payments to the Sponsor made previously by Purchaser or
Cendant pursuant to this Section 1. In the event of default by Purchaser
such that the Sponsor shall not have received $186 million by the Payout
Date, in addition to any other remedies that the Sponsor may have at law or
in equity, Purchaser and Cendant, jointly and severally, shall be obligated
to pay damages to the Sponsor in the form of interest on any unpaid amounts
at the rate of 8% per annum from August 11, 2002 until such unpaid amounts
have been paid in full.
(h) If paragraph (g) above is applicable, upon payment in full by
Cendant of its obligations under paragraph (g), any remaining Cendant
shares in the Brokerage Account shall be transferred to Cendant.
2. Closing. The closing (the "Closing") shall take place
simultaneously with the execution and delivery of this Agreement (the
"Closing Date"), at the offices of Skadden, Arps, Slate, Meagher & Flom
LLP, Four Times Square, New York, New York 10036.
3. Representations and Warranties of the Sponsor. Each of the
Original Sponsors and the Sponsor (collectively, the "Sponsors") jointly
and severally represents and warrants to Cendant and Purchaser as of the
date hereof as follows:
(a) Authorization. Each of the Sponsor and the Original Sponsors
has all requisite power and authority to execute and deliver this Agreement
and the Registration Rights Agreement and consummate the transactions
contemplated hereby and thereby. The execution and delivery by each of the
Sponsor and the Original Sponsor of this Agreement and the Registration
Rights Agreement and the consummation of the transactions contemplated
hereby and thereby have been duly authored by all requisite action by each
of the Sponsor and the Original Sponsor. This Agreement and the
Registration Rights Agreement have been duly executed and delivered by each
of the Sponsor and the Original Sponsor and, assuming due execution by
Cendant and Purchaser (as applicable), each of this Agreement and the
Registration Rights Agreement constitutes a valid and binding obligation of
each of the Sponsor and the Original Sponsor, enforceable against each of
the Sponsor and the Original Sponsor in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws and subject to general
principles of equity.
(b) Experience; Access to Information. The Sponsor is an
accredited investor within the meaning of Regulation D promulgated by the
SEC and, by virtue of its experience in evaluating and investing in private
placement transactions of securities in companies similar to Cendant, the
Sponsor is capable of evaluating the merits and risks of its investment in
Cendant, and has the capacity to protect its own interests. The Sponsor
acknowledges that Cendant and Purchaser do not make any representation or
warranty as to the future profitability, success or business prospects of
Cendant.
(c) Investment. The Sponsor is acquiring the Closing Cendant
Shares and the Additional Cendant Shares (if any) for investment for its
own account, not as a nominee or agent, and not with the view to, or for
resale in connection with, any distribution of any part thereof, except
pursuant to an effective registration statement pursuant to the Securities
Act of 1933, as amended (the "Securities Act") or any applicable exemption
therefrom. The Sponsor understands that the Closing Cendant Shares and the
Additional Cendant Shares (if any) to be acquired by it have not been
registered under the Securities Act, or applicable state and other
securities laws by reason of a specific exemption from the registration
provisions of the Securities Act and applicable state and other securities
laws, the availability of which depends upon, among other things, the bona
fide nature of the investment intent and the accuracy of each of the
Sponsor's representations as expressed herein.
(d) Ownership of Shares. The Sponsor is the beneficial and record
owner of 6,924,860.99 shares of NRT common stock, par value $0.01 per
share, which shares constitute all of the outstanding common stock of NRT.
The only members of the Sponsor are the Original Sponsors and the sole
Manager of the Sponsor is Apollo Management, L.P.
(e) Valid Title. The Sponsor has valid title to the Sponsor Shares
and there are no liens, claims, security interests, encumbrances,
restrictions on transfer or voting (other than restrictions imposed under
federal or state securities laws or the Stockholders Agreement)
(collectively, "Liens") in respect of the Sponsor Shares. Delivery of the
Sponsor Shares to Cendant on the terms set forth herein shall convey valid
title to Cendant of all of the Sponsor Shares free and clear of all Liens,
other than those Liens created by Cendant or their affiliates (provided
that the Sponsor and its affiliates shall not be deemed to be affiliates of
Cendant or its affiliates).
(f) No Additional Representations. The representations and
warranties set forth in this Section 3 are the only representations and
warranties made by the Sponsor. Except as specifically set forth herein,
all warranties, express or implied, are hereby disclaimed and excluded,
including warranties of merchantability and fitness for a particular
purpose. In no event shall the Sponsor be liable for special, incidental or
consequential damages.
4. Representations and Warranties of Cendant and Purchaser.
Cendant and Purchaser represent and warrant to each of the Sponsor as of
the date hereof as follows:
(a) Authorization. Cendant and Purchaser have all requisite power
and authority to execute and deliver this Agreement and, in the case of
Cendant, the Registration Rights Agreement and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by
Cendant and Purchaser of this Agreement and, in the case of Cendant, the
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all requisite
action by such parties. This Agreement and the Registration Rights
Agreement have been duly executed and delivered by Cendant and Purchaser
(as applicable) and, assuming due execution by each of the Sponsor and the
Original Sponsor, each of this Agreement and the Registration Rights
Agreement constitutes a valid and binding obligation of Cendant and
Purchaser (as applicable), enforceable against Cendant and Purchaser (as
applicable) in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws and subject to general principles of equity.
(b) Experience; Access to Information. Purchaser is an accredited
investor within the meaning of Regulation D promulgated by the SEC and, by
virtue of its experience in evaluating and investing in private placement
transactions of securities in companies similar to NRT, Purchaser is
capable of evaluating the merits and risks of its investment in NRT, and
has the capacity to protect its own interests. Purchaser and Cendant
acknowledge that the Sponsor does not make any representation or warranty
as to the future profitability, success or business prospects of NRT.
(c) Investment. Purchaser is acquiring the Sponsor Shares for
investment for its own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution of any part
thereof, except pursuant to an effective registration statement pursuant to
the Securities Act or an applicable exemption therefrom. Purchaser
understands that the Sponsor Shares to be acquired by it have not been
registered under the Securities Act, or applicable state and other
securities laws by reason of a specific exemption from the registration
provisions of the Securities Act and applicable state and other securities
laws, the availability of which depends upon, among other things, the bona
fide nature of the investment intent and the accuracy of Purchaser's
representations as expressed herein.
(d) Issuance. The issuance, sale and delivery of the Closing
Cendant Shares and the Additional Closing Shares (if any) have been duly
authorized by all requisite action of Cendant, and when issued, sold and
delivered in accordance with this Agreement, such Closing Cendant Shares
and Additional Closing Shares (if any) will be validly issued and
outstanding, fully paid and non-assessable, and free and clear of all
Liens, other than those Liens created by the Sponsor or its affiliates
(provided that Cendant and its affiliates shall not be deemed to be
affiliates of the Sponsor or its affiliates).
(e) No Additional Representations. The representations and
warranties set forth in this Section 4 are the only representations and
warranties made by Purchaser and Cendant. Except as specifically set forth
herein, all warranties, express or implied, are hereby disclaimed and
excluded, including warranties of merchantability an fitness for a
particular purpose. Neither Purchaser nor Cendant shall be liable for
special, incidental or consequential damages.
5. Restrictions on Transfer of Cendant Common Stock. The Sponsor
agrees that, prior to the earlier of the Payout Date or the End Date, it
will not, without the prior written consent of Purchaser, (a) offer for
sale, sell, contract to sell, pledge, grant any option to purchase, grant a
security interest in or otherwise encumber or directly or indirectly
otherwise dispose of, any of the Closing Cendant Shares or the Additional
Cendant Shares (if any) or (b) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Closing Cendant Shares or the Additional
Cendant Shares (if any).
6. Stop Transfer Orders, Legends. The stock certificates
representing the Closing Cendant Shares and the Additional Cendant Shares
(if any) shall bear the following legend (in addition to any legend
required under applicable state securities laws), and shall be subject to a
stop transfer order in accordance with therewith:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS CENDANT CORPORATION RECEIVES AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT.
7. Public Announcements. Purchaser, Cendant, the Sponsor and the
Original Sponsors hereby covenant and agree to consult with each other
before issuing, and provide each other the opportunity to review and
comment upon, any press release or other public statement or disclosure
with respect to the transactions contemplated by this Agreement.
8. Termination of Certain Agreements. Effective at the Closing,
the Option Agreement shall terminate and be of no further force or effect,
except for the obligations of NRT and Cendant under Section 2 of the Option
Agreement, which shall terminate upon the fulfillment of all of Cendant's
or Purchaser's obligations under Section 1 hereof. Effective at the
Closing, the parties and NRT will enter into a letter agreement in the form
attached hereto as Exhibit B which shall terminate the Stockholders
Agreement, except for the Sponsors' obligations under Section 5.4 of the
Stockholders Agreement, and all of the Sponsors' and Apollo Management,
L.P.'s rights and obligations under the Amended and Restated Acquisition
Cooperation Agreement, dated September 30, 1999, by and among NRT, Cendant,
the Original Sponsors and Apollo Management, L.P.
9. Miscellaneous.
(a) Governing Law. All questions concerning the construction,
interpretation and validity of this Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New
York, without giving effect to any choice or conflict of law provision or
rule (whether in the State of New York or any other jurisdiction) that
would cause the application of the law of any jurisdiction other than the
State of New York.
(b) 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 9(b). Any such notice will effective as of the
date of receipt.
(i) If to Cendant or Purchaser, such notice shall be sent to:
Cendant Corporation
9 West 57th Street
37th Floor
New York, New York 10019
Fax: (212) 413-1922
Attention: Eric J. Bock
Senior Vice President, Legal
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Fax: (212) 735-2000
Attention: Stephen F. Arcano
(ii) If to any of the Sponsor or the Original Sponsors, such notice
shall be sent to:
AP RES LLC
c/o Apollo Management, L.P.
1301 Avenue of the Americas, 38th Floor
New York, NY 10019
Fax:
Attention: Josh Harris
with a copy to:
Latham & Watkins
885 Third Avenue
New York, New York 10028
Fax:
Attention: Raymond Y. Lin
(c) Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to
the exclusive jurisdiction of any court of the State of New York or Federal
court of the United States of America sitting in the State of New York, and
any appellate court from any such courts, in any action or proceeding
arising out of or relating to this Agreement or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such court of
the State of New York or, to the extent permitted by law, in any such
Federal court. Each of the parties agrees that service of any process,
summons, notice or document by U.S. registered mail to its respective
address set forth in Section ) (or to such other address for notice that
such party has given the other party written notice of in accordance with
Section 9(b)) shall be effective service of process for any litigation
brought against it in any such court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT IN ANY COURT OF THE STATE OF NEW YORK OR FEDERAL
COURT SITTING IN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT.
(d) Counterparts. This Agreement may be executed in counterparts,
any one of which need not contain the signatures of more than one party,
but all such counterparts taken together when delivered shall constitute
one and the same agreement.
(e) Complete Agreement. This Agreement and the instruments or
agreements referred to herein contains the complete agreement among the
parties and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral which may have
related to the subject matter hereof in any way.
(f) 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. 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 permitted assigns.
(g) Amendments. This Agreement may only be amended in a writing
executed by each of the parties hereto.
(h) Expenses. All reasonable out-of-pocket expenses of the parties
hereto, including legal fees, of Cendant, the Purchaser and the Sponsors
(in the case of the Sponsors not in excess of $50,000) in connection with
the negotiation, drafting, review or implementation of this Agreement or
the Registration Rights Agreement shall be borne by NRT.
[End of Document]
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
CENDANT CORPORATION APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P., its General Partner
By: /s/ Eric J. Bock By: Apollo Capital Management II, Inc., its General Partner
------------------------------
Name: Eric J. Bock By: /s/ Josh Harris
Title: Senior Vice President & ----------------------------------
Corporate Secretary Name: Josh Harris
Title: Vice President
CENDANT REAL APOLLO OVERSEAS PARTNERS III, L.P.
ESTATE HOLDINGS INC. By: Apollo Advisors II, L.P., its General Partner
By: Apollo Capital Management II, Inc., its General Partner
By: /s/ Eric J. Bock
------------------------------ By: /s/ Josh Harris
Name: Eric J. Bock ----------------------------------
Title: Senior Vice President & Name: Josh Harris
Corporate Secretary Title: Vice President
APOLLO (UK) PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its General Partner
By: Apollo Capital Management II, Inc., its General Partner
By: /s/ Josh Harris
----------------------------------
Name: Josh Harris
Title: Vice President
AP RES LLC
By: Apollo Management, L.P, its Manager
By: AIF III Management, Inc., its General Partner
By: /s/ Josh Harris
-----------------------------------
Name: Josh Harris
Title: Vice President
Exhibit A
Bear, Stearns & Co. Inc. hereby acknowledges that upon the Closing
of the Stock Purchase Agreement (the "Stock Purchase Agreement"), dated
April 17, 2002, by and among Apollo Investment Fund III, L.P., Apollo
Overseas Partners III, L.P., Apollo (UK) Partners III, L.P., AP RES LLC
(the "Sponsor"), Cendant Corporation ("Cendant") and Cendant Real Estate
Holdings Inc. (the "Purchaser"), it will not have any continuing interest
or claims to the Sponsor Shares (as defined in the Stock Purchase
Agreement) and its claim or interest under the Participation Agreement,
dated August 11, 1997, will be only to a portion of the Proceeds (as
defined in the Stock Purchase Agreement) or cash received by the Sponsor in
accordance with the terms of the Participation Agreement.
Bear, Stearns & Co. Inc.
By: ___________________
Exhibit B
CENDANT CORPORATION
9 West 57th Street
New York, NY 10019
April 17, 2002
Apollo Investment Fund III, L.P.
Apollo Overseas Partners III, L.P.
Apollo (UK) Partners III, L.P.
AP RES LLC
c/o Apollo Management, L.P.
1301 Avenue of the Americas, 38th Floor
New York, NY 10019
Re: Termination of Certain Agreements
Relating to NRT Incorporated
---------------------------------
Gentlemen:
Reference is made to the Amended and Restated Stockholders
Agreement (the "Stockholders Agreement"), dated as of September 30, 1999,
by and among Apollo Investment Fund III, L.P., Apollo Overseas Partners
III, L.P. and Apollo (UK) Partners III, L.P. (collectively, the
"Sponsors"), Apollo Management, L.P., NRT Incorporated ("NRT") and Cendant
Corporation ("Cendant"). The parties hereto agree that upon the Closing (as
such term is defined in the Stock Purchase Agreement, executed on the date
hereof, by and among the Sponsors, AP RES LLC, NRT, Cendant and Cendant
Real Estate Holdings Inc.), the Stockholders Agreement shall be terminated
and be of no further force or effect, except for the Sponsors' obligations
under Section 5.4 of the Stockholders Agreement.
Reference is also made to the Amended and Restated Acquisition
Cooperation Agreement ("Acquisition Cooperation Agreement"), dated
September 30, 1999, by and among the Sponsors, Apollo Management, L.P., NRT
and Cendant. The parties hereto agree that upon the Closing, all of the
Sponsors' and Apollo Management, L.P.'s rights and obligations under the
Acquisition Cooperation Agreement shall be terminated and be of no further
force or effect.
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
CENDANT CORPORATION APOLLO INVESTMENT FUND III,
L.P.
By:__________________________ By: Apollo Advisors II, L.P., its General Partner
Name: Eric J. Bock By: Apollo Capital Management II, Inc., its General Partner
Title: Senior Vice President &
Corporate Secretary
By: __________________________
Name: Josh Harris
Title: Vice President
NRT INCORPORATED APOLLO OVERSEAS PARTNERS III, L.P.
By: ________________________ By: Apollo Advisors II, L.P., its General Partner
Name: By: Apollo Capital Management II, Inc., its General Partner
Title:
By: __________________________
Name: Josh Harris
Title: Vice President
AP RES LLC APOLLO (UK) PARTNERS III, L.P.
By: Apollo Management, L.P, its By: Apollo Advisors II, L.P., its General Partner
Manager By: Apollo Capital Management II, Inc., its General Partner
By: AIF III Management, Inc., its
General Partner
By: __________________________
By: ________________________ Name: Josh Harris
Name: Josh Harris Title: Vice President
Title: Vice President
APOLLO MANAGEMENT, L.P.
By: __________________________
Name: Josh Harris
Title: Vice President
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
dated February 7, 2002, April 1, 2002 as to Note 28 (which expresses an
unqualified opinion and includes an explanatory paragraph relating to the
modification of accounting for interest income and impairment of beneficial
interests in securitization transactions, the accounting for derivative
instruments and hedging activities and the revision of certain revenue
recognition policies as discussed in Note 1), appearing in the Annual
Report on Form 10-K of Cendant Corporation for the year ended December 31,
2001, 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
April 17, 2002
Exhibit 23.2
CONSENT OF KPMG LLP
The Board of Directors
Galileo International, Inc.:
We consent to the incorporation by reference in this registration
statement on Form S-3 of Cendant Corporation of our report dated January
26, 2001, except as to Note 15 which is as of February 22, 2001, with
respect to the consolidated balance sheets of Galileo International, Inc.
and subsidiaries as of December 31, 2000 and 1999 and the related
consolidated statements of income, stockholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 2000, which
report appears in the Form 8-K of Cendant Corporation dated October 15,
2001.
/s/ KPMG LLP
Chicago, Illinois
April 17, 2002
