Registration
No. 333-
As filed
with the Securities and Exchange Commission on May 13, 2005
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CENDANT
CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
(State or
Other Jurisdiction of Incorporation or Organization)
06-0918165
(I.R.S.
Employer Identification No.)
9 West
57th Street,
New York, New York 10019
(Address
of Principal Executive Offices) (Zip Code)
1999
Non-Employee Directors Deferred Compensation Plan
2005 UK
Share Incentive Plan
(Full
Title of Plan)
JAMES E.
BUCKMAN, ESQ.
Vice
Chairman and General Counsel
Cendant
Corporation
9 West
57th
Street
New York,
New York 10019
Tel:
(212) 413-1800 Fax: (212) 413-1922
Copies
to:
ERIC J.
BOCK, ESQ.
Executive
Vice President, Law and Corporate Secretary
Cendant
Corporation
9 West
57th
Street
New York,
New York 10019
Tel:
(212) 413-1800 Fax: (212) 413-1922
(Name,
Address, Telephone Number, Including Area Code, of Agent For
Service)
(Calculation
of Registration Fee on Next Page)
CALCULATION
OF REGISTRATION FEE
|
Title
Of
Securities
To Be Registered* |
Amount
To Be Registered1 |
Proposed
Maximum
Offering
Price Per Share3 |
Proposed
Maximum
Aggregate
Offering Price2,3 |
Amount
Of
Registration
Fee3 |
|
Common
Stock,
$.01
par value,
of
the series
designated
CD
Common
Stock |
920,000
|
$20.255 |
$18,634,600 |
$2,193.29
|
1 Consists
of (i) 420,000 shares under the 1999
Non-Employee Directors Deferred Compensation Plan and (ii)
500,000 shares under the 2005 UK
Share Incentive Plan.
2
Estimated solely for the purpose of determining the registration
fee.
3 The
registration fee for the securities registered hereby has been calculated
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, and is
based upon the average of the high and low sale price of the CD Common Stock, as
reported on the New York Stock Exchange on May 11, 2005.
*In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the 2005 UK
Share Incentive Plan.
Explanatory
Note
This
Registration Statement on Form S-8 relates to up to 920,000 shares of common
stock, par value $.01 per share of Cendant Corporation (the "Company"), of the
series designated CD Common Stock (the “CD Common Stock”), issuable pursuant to
the 1999 Non-Employee Directors Deferred Compensation Plan and the 2005 UK
Share Incentive Plan
(collectively, the “Plans”).
PART
I
INFORMATION
REQUIRED IN THE SECTION 10 (a) PROSPECTUS
The
documents containing the information specified in Part I will be sent or given
to all participants in the Plans as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the “Securities Act”). Such documents are
not filed with the Securities and Exchange Commission (the "SEC") either as part
of this Registration Statement or as prospectuses or prospectus supple-ments
pursuant to Rule 424 under the Securities Act. These documents and the documents
incorporat-ed by reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration State-ment, taken together, constitute the
prospectuses (the "Prospectuses") that meet the requirements of Section 10(a) of
the Securities Act relating to the Plans.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
|
Item
3. |
Incorporation
of Documents by Refer-ence. |
The SEC
allows us to "incorporate by reference" the information we file with them, which
means:
|
· |
incorporated
documents are considered part of this Registration Statement and the
Prospectuses, |
|
· |
we
can disclose important information to you by referring you to those
documents, |
|
· |
information
that we file with the SEC will automatically update this Registration
Statement and update and/or supersede the Prospectuses,
and |
|
· |
any
statement contained in a document incorporated or deemed to be
incorporated by reference in the Prospectuses shall be deemed to be
modified or superseded for the purposes of this Registration Statement and
the Prospectuses to the extent that a statement contained in the
Registration Statement or the Prospectuses or in any subsequently filed
document that also is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectuses modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
Prospectuses. |
We
incorporate by reference the documents listed below that were filed with the SEC
under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”):
|
· |
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2004,
filed on March 1, 2005 (except for Items 6, 7 and 8 which have been
updated in our Current Report on Form 8-K filed on May 5, 2005);
|
2
|
· |
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2005, filed
on May 5, 2005; |
|
· |
all
other reports filed by us pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to above; and |
|
· |
the
description of our common stock contained in the Proxy Statement dated
February 10, 2000, filed on February 11,
2000. |
We also
incorporate by reference each of the following documents that we will file with
the SEC after the date of this Prospectus and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining
unsold:
|
· |
reports
filed under Sections 13(a) and (c) of the Exchange
Act; |
|
· |
proxy
or information statements filed under Section 14 of the Exchange Act in
connection with any subsequent stockholders’ meetings;
and |
|
· |
any
reports filed under Section 15(d) of the Exchange
Act. |
You may
request a copy of any filings referred to above (excluding exhibits), at no
cost, by contacting us at the following address:
Investor
Relations
Cendant
Corporation
9 West
57th
Street
New York,
New York 10019
Telephone:
(212) 413-1800
Pursuant
to Instruction E to Form S-8, the Company hereby incorporates by reference the
contents of the Company’s Registration Statement on Form S-8, File No.
333-78475, filed on May 14, 1999, to the extent not amended hereby.
| Item 4. |
Description
of Securities. |
Not
Applicable.
| Item 5. |
Interests
of Named Experts and Counsel. |
Eric J.
Bock, Esq. has rendered an opinion on the validity of the securities being
registered under the Plans pursuant to this Registration Statement. Mr. Bock is
Executive Vice President, Law and Corporate Secretary of the Company. A copy of
this opinion is attached as Exhibit 5.1 to this Registration Statement. Mr. Bock
holds shares of CD Common Stock and options to acquire shares of CD Common
Stock.
3
| Item 6. |
Indemnification
of Directors and Officers. |
Section
145 of the General Corporation Law of the State of Delaware (the "GCL") empowers
a Delaware corporation to indemnify any controlling person, director, officer,
employee or agent who was or is a party to 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 the 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 attorney's 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 agents of such corporation in an action by or in the right of the
corporation under the same conditions, 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 director, officer, employee or
agent of the corporation is successful on the merits or other-wise in the
defense of any action, suit or proceeding referred to above or in defense of any
claim, issue or matter herein, the corporation must indemnify such person
against the expenses (including attorney's fees) which he or she actually and
reasonably incurred in connection therewith.
The
Company's By-Laws contain provisions that provide for indemnification of
officers and directors to the full extent permitted by, and in the manner
permissible under, the GCL.
As
permitted by Section 102 (b) (7) of the GCL, the Company's Restated Certificate
of Incorporation contains a provision eliminating the personal liability of a
director to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, subject to certain exceptions.
| Item 7. |
Exemption
From Registration Claimed. |
Not
Applicable.
| Item 8. |
Exhibits. |
See the
Exhibit Index herein.
| Item 9. |
Undertakings. |
(a) The
undersigned Company hereby undertakes:
(1) To file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
4
provided,
however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the SEC by the Company pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for
the purpose of determining any liability under the Securities Act, 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.
(b) The
undersigned Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) 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.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 and will be governed by the final adjudication of such issue.
5
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on this 13th day of
May, 2005.
|
CENDANT
CORPORATION | ||
| (Registrant) | ||
| |
|
|
| By: | /s/ James E. Buckman | |
| James E. Buckman | ||
| Vice Chairman and General Counsel | ||
POWER OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints James E. Buckman and Eric J. Bock, and each and either
of them, his or her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including,
without limitation, post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, 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 or she
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed as of May 13, 2005 by the following persons in the capacities
indicated.
|
Name |
Title |
|||
| /s/ Henry R. Silverman | Chairman of the Board, | |||
| Henry R. Silverman | Chief Executive Officer and Director | |||
| (Principal Executive Officer) | ||||
| /s/ Ronald L. Nelson | President, Chief Financial Officer | |||
| Ronald L. Nelson | and Director | |||
| /s/ James E. Buckman | Vice Chairman, General Counsel and | |||
| James E. Buckman | Director |
6
|
Name |
Title |
|||
| /s/ Stephen P. Holmes |
Vice
Chairman and Director |
|||
|
Stephen
P. Holmes |
||||
| /s/ Virginia M. Wilson | Executive Vice President and Chief | |||
| Virginia M. Wilson |
Accounting
Officer |
|||
| /s/ Myra J. Biblowit | Director | |||
| Myra J. Biblowit | ||||
| /s/ Leonard S. Coleman | Director | |||
| Leonard S. Coleman | ||||
| /s/ Martin L. Edelman | Director | |||
| Martin L. Edelman | ||||
| /s/ George Herrera | Director | |||
| George Herrera | ||||
| /s/ Cheryl D. Mills | Director | |||
| Cheryl D. Mills | ||||
| /s/ Brian Mulroney | Director | |||
| The Right Honourable Brian Mulroney | ||||
| Director | ||||
| /s/ Robert E. Nederlander | ||||
| Robert E. Nederlander |
7
|
Name |
Title |
|||
| /s/ Robert W. Pittman |
Director |
|||
|
Robert
W. Pittman |
||||
| /s/ Pauline D.E. Richards |
Director |
|||
|
Pauline
D.E. Richards |
||||
| /s/ Sheli Z. Rosenberg | Director | |||
| Sheli Z. Rosenberg | ||||
| /s/ Robert F. Smith | Director | |||
| Robert F. Smith | ||||
|
2005
UK Share Incentive Plan. Pursuant to the requirements of the Securities
Act, the trustee (or other persons who administer the Plan) has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, on May 13,
2005. | |||
|
2005 UK Share Incentive Plan
|
||||
| By: /s/ Edward B. Pictroski | ||||
|
Edward
B. Pictroski |
||||
|
Senior Vice President, Benefits and Compensation |
||||
|
Cendant Corporation |
||||
8
EXHIBIT
INDEX
|
Exhibit Number |
Exhibit
Description |
|
4.1 |
Amended
and Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 of the Company's Form 10-Q for the quarterly
period ended March 31, 2004). |
|
4.2 |
Amended
and Restated By-Laws of the Company (incorporated by reference to Exhibit
3.1 of the Company's Current Report on Form 8-K dated October 19,
2004). |
|
5.1 |
Opinion
of Eric J. Bock, Esq. (including consent).* |
|
15.1 |
Letter
Re: Unaudited Interim Financial Information.* |
|
23.1 |
Consent
of Deloitte & Touche LLP, relating to Cendant
Corporation.* |
|
23.2 |
Consent
of Eric J. Bock, Esq. (included in Exhibit 5.1). |
|
24.1 |
Powers
of Attorney of certain officers and directors of the Company (included on
the signature page of this Registration
Statement). |
________________
* Filed
herewith
9
EXHIBIT
5.1
CENDANT
CORPORATION
9 West
57th
Street
New York,
New York 10019
| May 13 , 2005 |
Cendant
Corporation
9 West
57th
Street
New York,
New York 10019
|
Re: |
Cendant
Corporation Registration
Statement
on Form S-8 |
Ladies
and Gentlemen:
I am
Executive Vice President, Law and Corporate Secretary of Cendant Corporation, a
Delaware corporation (the “Company”), and am rendering this opinion in
connection with the Company’s filing of a Registration Statement on Form S-8
(the “Registration Statement”) pursuant to the Securities Act of 1933, as
amended (the “Securities Act”), on the date hereof with the Securities and
Exchange Commission (the “Commission”). The Company is filing this Registration
Statement in order to register the following shares (the “Shares”): 420,000
shares of its common stock, par value $.01 per share of the series designated CD
Common Stock (the “CD Common Stock”), under the 1999 Non-Employee Directors
Deferred Compensation Plan and 500,000 shares of CD Common Stock under the 2005
UK Share Incentive Plan (collectively, the “Plans”).
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 rendering this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of
the following documents: (i) the Plans; (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 amended to the date hereof and (iv) such
other certificates, instruments and documents as I considered necessary or
appropriate for the purposes of this opinion.
In my
examination, I have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified, conformed or photostatic copies and the authenticity of the
originals of such copies. In making my examination of documents executed by
parties other than the Company, I have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder and
also have assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such documents and the
validity and binding effect thereof on such parties. As to any facts material to
the opinion expressed herein which we have not independently established or
verified, I have relied upon statements and representations of officers and
other representatives of the Company and others.
10
I am
admitted to the Bars of the States of New York and New Jersey, and I do not
express any opinion as to the law of any jurisdiction except for the General
Corporation Law of the State of Delaware.
Based
upon and subject to the foregoing, I am of the opinion that the Shares, when
issued in accordance with the terms and conditions of the Plans, will be validly
issued, fully paid and non-assessable.
I hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, however, I do not thereby admit that I am
within the category of persons whose consent is required under Section 7 of the
Securities Act and the rules and regulations of the Commission
thereunder.
| Very truly yours, | |
| /s/ Eric J. Bock | |
| Eric J. Bock |
11
EXHIBIT
15.1
May 12,
2005
Cendant
Corporation
9 West
57th
Street
New York,
New York
We have
made a review, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), of the unaudited interim financial information
of Cendant Corporation and subsidiaries for the three-month periods ended March
31, 2005 and 2004 and have issued our report dated May 4, 2005. As indicated in
our report, because we did not perform an audit, we expressed no opinion on that
information.
We are
aware that our report referred to above, which was included in your Quarterly
Report on Form 10-Q for the quarter ended March 31, 2005 is incorporated by
reference in this Registration Statement.
We are
also aware that the aforementioned reports, pursuant to Rule 436(c) under the
Securities Act of 1933, are not considered a part of the Registration Statement
prepared or certified by an accountant or a report prepared or certified by an
accountant within the meaning of Sections 7 and 11 of that Act.
/s/
Deloitte & Touche LLP
New York,
New York
12
EXHIBIT
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement of
Cendant Corporation on Form S-8 of our report dated February 28, 2005
(May 4, 2005 as to the effects of the discontinued operations and revised
segment reporting structure described in Notes 1 and 23) (which expresses
an unqualified opinion and includes an explanatory paragraph relating to the
revision of earnings per share calculations for all prior periods presented to
include the dilutive effect of certain contingently convertible debt securities
and the adoption of the fair value method of accounting for stock-based
compensation and the consolidation provisions for variable interest entities in
2003; and an explanatory paragraph relating to the effects of the classification
of certain subsidiaries as discontinued operations during the first quarter of
2005) appearing in the current report on Form 8-K of Cendant Corporation dated
May 5, 2005.
/s/
Deloitte & Touche LLP
New York,
New York
May 12,
2005
13