As filed with the Securities and Exchange Commission on April 27, 2001
Registration No 333-______
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CENDANT CORPORATION
(exact name of registrant as specified in its charter)
06-0918165 DELAWARE
(I.R.S. Employer (State or other Jurisdiction
Identification Number) Organization)
9 WEST 57TH STREET
NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1922
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
JAMES E. BUCKMAN, ESQ.
VICE CHAIRMAN AND GENERAL COUNSEL
CENDANT CORPORATION
9 WEST 57TH STREET
NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1923
(Name, address, including zip code, and telephone number
including area code, of agent for service)
Copies to:
----------------
ERIC J. BOCK, ESQ. VINCENT J. PISANO, ESQ.
SENIOR VICE PRESIDENT, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
LAW AND SECRETARY 4 TIMES SQUARE
CENDANT CORPORATION NEW YORK, NEW YORK 10036
9 WEST 57TH STREET (212) 735-3000
NEW YORK, NY 10019 (212) 735-2000
(212) 413-1800
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.
[X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT TO PROPOSED MAXIMUM PROPOSED AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED OFFERING PRICE MAXIMUM REGISTRATION
PER SECURITY(1) AGGREGATE FEE
OFFERING
PRICE
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CD Common Stock, $0.01 par value 2,808,989 $17.80 $50,000,004 $12,500
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(1) Pursuant to Rule 457(c), the registration fee is calculated based
on the average of the high and low prices for the common stock, as
reported on the New York Stock Exchange on April 26, 2001.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
Subject to Completion, Dated April 27, 2001
PROSPECTUS
____________ SHARES
CENDANT CORPORATION
CD COMMON STOCK
This prospectus relates to the sale by a selling stockholder,
including its transferees, donees, pledgees or successors, of up to
____________ shares of Cendant CD common stock.
------------------
The shares are being registered to permit the selling stockholder
to sell the shares from time to time in the public market. The selling
stockholder may sell the shares thorough ordinary brokerage transactions or
through any other means described in the section "Plan of Distribution." We
cannot assure you that the selling stockholder will sell all or any portion
of our CD common stock offered under this prospectus.
For a description of our CD common stock, please refer to the
description of common stock in "Summary Comparison of Terms of Existing
Common Stock with Terms of CD Stock and Move.com Stock" in our Proxy
Statement, dated February 10, 2000 (filed February 11, 2000), which is
incorporated herein by reference.
Our CD common stock is listed on the New York Stock Exchange under
the trading symbol "CD." The last reported sale price of our CD common
stock on the NYSE on _____ __, 2001 was $______.
------------------
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 4.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this prospectus is ______, 2001
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. The selling stockholder may not sell
these securities until the registration statement filed with the Securities
and Exchange Commission is declared effective. This preliminary prospectus
shall not constitute an offer to sell or the solicitation of an offer to
buy nor shall there be any sale of these securities in any jurisdiction in
which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
jurisdiction.
TABLE OF CONTENTS
Page
----
ABOUT THIS PROSPECTUS..........................................................3
FORWARD-LOOKING INFORMATION....................................................3
RISK FACTORS...................................................................5
CENDANT ......................................................................7
DIVIDEND POLICY................................................................8
USE OF PROCEEDS................................................................8
SELLING STOCKHOLDER............................................................8
PLAN OF DISTRIBUTION..........................................................10
LEGAL OPINIONS................................................................11
EXPERTS .....................................................................12
WHERE YOU CAN FIND MORE INFORMATION...........................................12
ABOUT THIS PROSPECTUS
This prospectus relates to the sale by a selling stockholder of up
to ____________ shares of our CD common stock. The selling stockholder may
sell the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities
the selling stockholder may offer. Each time the selling stockholder sells
shares of our CD common stock, a prospectus supplement will be provided
that will contain specific information about the terms of that offering to
the extent required. You should read this prospectus and any accompanying
prospectus supplement together with the additional information contained
under the heading "Where You Can Find More Information."
FORWARD-LOOKING INFORMATION
Some of the matters discussed in this prospectus and in the
documents incorporated by reference contain forward-looking statements
within the meaning of the securities laws. Forward- looking statements
include terms such as "may," "will," "expect," "believe," "plan" and other
similar terms. We caution that, while we believe those statements to be
based on reasonable assumptions and make those statements in good faith,
there can be no assurance that the actual results will not differ
materially from these assumptions or that the expectations provided in the
forward-looking statements derived from these assumptions will be realized.
You should be aware of important factors that could have a
material impact on future results. These factors include, but are not
limited to:
o the effect of economic conditions and interest rate changes on the economy on a
national, regional or international basis and the impact on our businesses;
o the effects of changes in current interest rates, particularly on our real estate
services and financial services 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 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 our ability to integrate and operate successfully acquired and merged businesses and
risks associated with such businesses, including the acquisition of Avis Group
Holdings, Inc. and the acquisition of Fairfield Communities, 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 uncertainty relating to the proposed spin-off of our discontinued Individual
Membership segment;
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 rating
agencies;
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 between vehicle
manufacturers and Avis Group Holdings, Inc. in the event that used vehicle values
decrease; and
o changes in laws and regulations, including changes in accounting standards and
privacy policy regulation.
RISK FACTORS
Investing in our common stock involves risks. You should carefully
consider the following discussion of risks as well as other information
contained in this prospectus and any accompanying prospectus supplement.
Discovery of Accounting Irregularities and Related Litigation and Governmental
Investigations
Our company 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, we announced
that in the course of transferring responsibility for our accounting
functions from our personnel associated with CUC prior to the merger to our
personnel associated with HFS before the merger and preparing for the
report of first quarter 1998 financial results, we discovered account
irregularities in some of the CUC business units. As a result, we, together
with our counsel and assisted by auditors, immediately began an intensive
investigation.
As a result of the findings of the investigations, we restated our
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 our behalf and several individual
lawsuits and arbitration proceedings were commenced in various courts and
other forums against us and other defendants by or on behalf of persons
claiming to be stockholders of ours and persons claiming to have purchased
or otherwise acquired securities or options issued by CUC or us 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 us, which are reflected in its
previously filed restated financial statements for the years ended December
31, 1997, 1996 and 1995 and for the six months ended June 30, 1998. On June
14, 2000, pursuant to an offer of settlement made by us, 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 us in the U.S. District Court in Newark, New Jersey,
brought on behalf of purchasers of all our and CUC publicly traded
securities, other than PRIDES, between May 1995 and August 1998. 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 have appealed the District Court's orders approving the plan of
allocation of the settlement fund and awarding of attorneys' fees and
expenses to counsel for the lead plaintiffs. None of the appeals challenged
the fairness of the $2.85 billion settlement amount. The Court of Appeals
for the Third Circuit has scheduled May 22, 2001 as the date for oral
arguments on the appeals. 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.
The settlement does not encompass all litigations asserting
against us claims 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.
The Price of our CD Common Stock is Subject to Possible Volatility
The stock market has from time to time experienced significant
price and volume fluctuations that are unrelated to the operating
performance of particular companies. These broad market fluctuations may
adversely affect the market price of our CD common stock.
CENDANT
We are one of the foremost providers of travel and real estate
services in the world. We were created through the merger of HFS into CUC
in December 1997 with the resultant corporation being renamed Cendant
Corporation.
We operate in four business segments--hospitality, real estate
services, vehicle services, and financial services. Our businesses provide
a wide range of complementary consumer and business services. Our
businesses are intended to complement one another and create cross-
marketing opportunities both within each segment and between segments.
o Our hospitality segment franchises hotel
businesses, facilitates vacation timeshare
exchanges, provides holiday cottage rentals in
Europe and provides travel agency services;
o Our real estate segment franchises real estate
brokerage businesses, provides home buyers with
mortgages and assists in employee relocations;
o Our vehicle services segment franchises and
operates car rental businesses, provides fleet
management services to corporate clients and
government agencies and operates parking
facilities in the United Kingdom; and
o Our financial services segment provides
marketing strategies primarily to financial
institutions through offering an array of
financial and insurance- based products to
consumers, and franchises tax preparation
service businesses.
As a franchisor of hotels, residential and commercial real estate
brokerage offices, car rental operations and tax preparation services, we
license the owners and operators of independent businesses the right to use
our brand names. We do not own or operate hotels, real estate brokerage
offices or tax preparation offices. Instead, we provide our franchisee
customers with services designed to increase their revenue and
profitability.
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.net. The information contained on our Web site is not
incorporated by reference in this prospectus.
All references to "we," "us," "our," or "Cendant" in this
prospectus are to Cendant Corporation.
****
We continually explore and conduct discussions with regards to
acquisitions and other strategic corporate transactions in our industries
and in other franchise, franchisable or service businesses. In addition to
transactions previously announced, as part of our regular on-going
evaluation of acquisition opportunities, we currently are engaged in a
number of separate, unrelated preliminary discussions concerning possible
acquisitions. The purchase price for the possible acquisitions may be paid
in cash, through the issuance of CD common stock or of our other
securities, borrowings, or a combination thereof. Prior to consummating any
such possible acquisition, we will need to, among other things, initiate
and complete satisfactorily our due diligence investigations, negotiate the
financial and other terms (including price) and conditions of such
acquisitions, obtain appropriate Board of Directors, regulatory and other
necessary consents and approvals, and, if necessary, secure financing. No
assurance can be given with respect to the timing, likelihood or business
effect of any possible transaction. In the past, we have been involved in
both relatively small acquisitions and acquisitions which have been
significant.
DIVIDEND POLICY
We have never paid a cash dividend on our capital stock. We do not
anticipate paying cash dividends on our capital stock in the foreseeable
future and intend to retain all earnings to finance the operations and
expansion of our business and the repurchase of common stock and debt
reduction. The payment of cash dividends in the future will depend on our
earnings, financial condition and capital needs and on other factors deemed
relevant by our board of directors at that time.
USE OF PROCEEDS
We will not receive any of the proceeds of sales by the selling
stockholder.
SELLING STOCKHOLDER
The following table presents information with respect to the
selling stockholder and the amount of shares of our CD common stock that it
may offer under this prospectus. The term "selling stockholder" includes
donees, pledgees, transferees or other successors in interest selling
securities received from a named selling stockholder after the date of this
prospectus.
Pursuant to the purchase agreement dated as of March 28, 2000 (the
"Purchase Agreement"), by and between us and Liberty Digital, Inc.
("Liberty Digital"), Liberty Digital purchased 1,598,030 shares of Move.com
common stock for $31.29 per share in exchange for consideration consisting
of $10 million in cash and 813,215 shares of Liberty Digital Class A common
stock valued at approximately $40 million. The shares of CD common stock
offered by this prospectus were issued in connection with our obligation
pursuant to the Purchase Agreement, to issue to Liberty Digital $50 million
in CD common stock in exchange for Liberty Digital's shares of Move.com
common stock in the event Move.com common stock is not publicly traded by
June 30, 2001.
We have agreed to pay all expenses incurred in connection with the
registration of the sale of the shares of CD common stock owned by the
selling stockholder and covered by this prospectus, other than brokerage
commissions, underwriting discounts and commissions, transfer taxes and
other out-of-pocket expenses incurred by the selling stockholder in
connection with the sale of these shares.
Since the date that we received information from the selling
stockholder, the selling stockholder identified below may have sold,
transferred or otherwise disposed of all or a substantial portion of the
shares of CD common stock held by it in a transaction or series of
transactions exempt from the Securities Act. Information regarding the
selling stockholder may change from time to time and any changed
information will be set forth in a prospectus supplement to the extent
required.
The selling stockholder may from time to time offer and sell any
or all of the securities under the prospectus. Because the selling
stockholder is not obligated to sell the shares of CD common stock held by
it, we cannot estimate the number of shares of CD common stock that the
selling stockholder will beneficially own after this offering.
Number of Shares of Number of Shares of CD
Name of Selling Common Stock Beneficially Percentage of Common Stock Covered by
Stockholder Owned Prior to this Offering Outstanding this Prospectus
------------------------------------- ------------------------------ --------------- -----------------------------
Liberty Digital
PLAN OF DISTRIBUTION
This prospectus, including any amendment or supplement, may be
used in connection with sales of up to ____________ shares of our CD common
stock. The selling stockholder, or its pledgees, assignees, transferees or
other successors in interest may offer its shares of CD common stock at
various times in one or more of the following transactions:
o one or more block trades;
o in exchange or the over-the-counter market transactions;
o in private transactions other than exchange or
over-the-counter market transactions;
o through short sales or put or call option transactions;
o through underwriters, brokers or dealers (who may act as
agents or principals); o directly to one or more
purchasers;
o through agents;
o through distribution by the selling stockholder or its
successor in interest to its members, partners or
shareholders;
o by pledge to secure debts and other obligations; or
o in any combination of such methods.
The selling stockholder may sell its shares at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices.
The selling stockholder also may resell all or a portion of its CD
common stock in open market transactions in reliance upon Rule 144 under
the Securities Act, provided it meets the criteria and conforms to the
requirements of Rule 144.
The selling stockholder may use underwriters, brokers, dealers or
agents to sell its shares. Any underwriters, brokers, dealers or agent may
receive compensation in the form of discounts, concessions or commissions
from the selling stockholder, the purchaser or such other persons who may
be effecting sales hereunder (which discounts, concessions or commissions
as to particular underwriters, brokers dealers or agents may be in excess
of those customary in the type of transactions involved). Underwriters may
sell the shares of CD common stock to or though dealers, and such dealers
may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agents. The selling stockholder or other persons
effecting sales hereunder, and any such underwriters, brokers, dealers and
agents may be deemed to be "underwriters" within the meaning of the
Securities Act, and any discounts or commissions they receive and any
profit on the sale of the CD common stock they realize may be deemed to be
underwriting discounts and commissions under the Securities Act. Some sales
may involve shares in which the selling stockholder has granted security
interests and which are being sold because of foreclosure of those security
interests. At the time a particular offering of shares is made and to the
extent required, the aggregate number of shares being offered, the name or
names of the selling stockholder and the terms of the offering, including
the names of the underwriters, broker-dealers or agents, any discounts,
concessions or commissions and other terms constituting compensation from
the selling stockholder, and any discounts, concessions or commissions
allowed or re- allowed or paid to broker-dealers, will be set forth in an
accompanying prospectus supplement.
The selling stockholder may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in
short sales of our CD common stock in the course of hedging the positions
they assume with the selling stockholder. The selling stockholder may also
enter into options or other transactions with broker-dealers or other
financial institutions that require the delivery to such broker-dealer or
their financial institution of the shares of CD common stock offered
hereby, which shares such broker-dealer or their financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction).
The selling stockholder may offer and sell shares of CD common
stock other than for cash. In such event, any required details of the
transaction will be set forth in a prospectus supplement.
Under the securities laws of certain states, the securities
offered by this prospectus may be sold in those states only through
registered or licenced brokers or dealers. In addition, in certain states
the securities offered by this prospectus may not be sold unless they have
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with. In
connection with any resales by the selling stockholder, a prospectus
supplement, if required, will be filed under Rule 424(b) under the
Securities Act, disclosing the number of shares involved and other details
of such resale to the extent appropriate.
Under the rules and regulations under the Exchange Act, any
person engaged in a distribution of the shares offered pursuant to this
prospectus may be limited in its ability to engage in market activities
with respect to those shares. Each selling stockholder will be subject to
the provisions of the Exchange Act and the rules and regulations under the
Exchange Act, including Regulation M. Those rules and regulations may limit
the timing of purchases and sales of any shares offered by the selling
stockholder pursuant to this prospectus, which may affect the marketability
of the shares offered by this prospectus.
Any common stock sold by a selling stockholder pursuant to a
prospectus supplement will be listed on the NYSE, subject to official
notice of issuance.
LEGAL OPINIONS
The validity of the shares of CD common stock offered hereby will
be passed on for us by Eric J. Bock, Esq., Senior Vice President, Law and
Secretary of Cendant. Mr. Bock holds shares of CD common stock and options
to acquire shares of CD common stock.
EXPERTS
Our financial statements, incorporated in this prospectus by
reference from our Annual Report on Form10-K for the year ended December
31, 2000 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 change in certain revenue
recognition policies regarding the recognition of non-refundable one-time
fees and pro rata refundable subscription revenue as described 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
We file reports, proxy statements and other information with the
Securities and Exchange Commission. Our filings with the commission are
available to the public over the Internet at the commission's web site at
http:www.sec.gov. You may also read and copy any document we file at the
commission at the public reference rooms of the commission in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the commission
at 1-800-SEC-0330 for further information on the public reference rooms.
The commission allows us to "incorporate by reference" the
information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus and
information that we file later with the commission will automatically
update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the commission
under sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until all of
the securities offered by this prospectus are sold.
o Annual Report on Form 10-K for the year ended December 31,
2000, filed on March 29, 2001;
o Current Reports on Form 8-K dated January 9, 2001, January
18, 2001, February 7, 2001 (filed on February 8, 2001),
February 8, 2001, February 20, 2001, March 1, 2001 (filed
on March 9, 2001), March 12, 2001, April 2, 2001 (filed on
April 3, 2001), April 18, 2001 (filed on April 19, 2001)
and April 18, 2001 (filed on April 19, 2001);
o Current Reports on Form 8-K/A dated January 19, 2001 and
March 21, 2001; and
o The description of our CD common stock contained in the
Proxy Statement dated February 10, 2000 (filed on February
11, 2000).
You may request a copy of these filings at no cost, by writing or
telephoning us at the following:
Investor Relations
Cendant Corporation
9 West 57th Street
New York, NY 10019
Telephone: (212) 413-1800
You should rely only on the information contained or incorporated
by reference in this prospectus. We have not authorized anyone to provide
you with different information. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information contained or incorporated by
reference in this prospectus is accurate as of any date other than the date
on the front cover of this prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission
Registration Fee.............................$ 12,500
*Accounting Fees and Expenses................$100,000
*Legal Fees and Expenses.....................$100,000
*Miscellaneous...............................$200,000
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Total Expenses...............................$412,500
=======
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* Estimated for purposes of completing the information required pursuant to
this Item 14.
We will pay all fees and expenses associated with filing the
Registration Statement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the General Corporation Law of the State of
Delaware allows a corporation to eliminate the personal liability of
directors of a corporation or its stockholders for monetary damages for a
breach of a fiduciary duty as a director, except where the director
breached his duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit.
Section 145 of the Delaware General Corporation Law empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation)
by reason of the fact that such person is or was a director, officer,
employee or agent of such corporation or is or was serving at the request
of such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding, provided
that such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interest of the corporation
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe such person's conduct was unlawful. A Delaware corporation
may indemnify directors, officers, employees and other agents of such
corporation in an action by or in the right of a corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the person to be indemnified has been adjudged to be liable to
the corporation. Where a director, officer, employee or agent of the
corporation is successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to above or in defense of any claim,
issue or matter therein, the corporation must indemnify such person against
the expenses (including attorneys' fees) which he or she actually and
reasonably incurred in connection therewith.
Section 174 of the General Corporation Law of the State of
Delaware provides, among other things, that a director who willfully or
negligently approves of an unlawful payment of dividends or an unlawful
stock purchase or redemption, may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to
such actions to be entered into the books containing the minutes of the
meetings of the board of directors at the time such action occurred or
immediately after such absent director receives notice of the unlawful
acts.
The Registrant's By-Laws contain provisions that provide for
indemnification of officers and directors and their heirs and distributees
to full extent permitted by, and in the manner permissible under, the
General Corporation Law of the State of Delaware.
As permitted by Section 102(b)(7) of the General Corporation Law
of the State of Delaware, the Registrant's Amended and Restated Certificate
of Incorporation contains a provision eliminating the personal liability of
a director to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, subject to some exceptions.
Cendant Corporation maintains, at its expense, a policy of
insurance which insures its directors and officers, subject to exclusions
and deductions as are usual in these kinds of insurance policies, against
specified liabilities which may be incurred in those capacities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT NO. DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation of Cendant
Corporation (incorporated by reference to Exhibit 3.1 to the
Registrant's 10-Q/A for the quarterly period ended March 31,
2000, dated July 28, 2000).
3.2 Amended and Restated By-laws of Cendant Corporation
(incorporated by reference to Exhibit 3.2 to the
Registrant's 10-Q/A for the quarterly period ended March 31,
2000, dated July 28, 2000).
4.1 Form of Certificate for Cendant's common stock, par value
$.01 per share. (Incorporated by reference to Exhibit 4.1 to
Cendant's Form S- 3 Registration Statement No. 333-45227).
5.1 Opinion of Eric J. Bock, Esq. regarding the legality of the
securities being registered by Cendant hereby.**
10.1 Purchase Agreement dated as of March 28, 2000, by and
between the Company, Liberty Digital.**
23.1 Consent of Deloitte & Touche LLP relating to Cendant
Corporation.*
23.2 Consent of Deloitte & Touche LLP relating to Avis Group
Holdings, Inc..*
23.3 Consent of Eric J. Bock, Esq. (see Exhibit 5.1).**
24.1 Power of Attorney (included on signature page).*
----------------------
* Filed herewith.
** Documents to be filed by amendment.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
will be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time will be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of such registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement will be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time will
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions referred to in Item 15 hereof, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cendant
Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on
April 27, 2001.
CENDANT CORPORATION
By: /s/ James E. Buckman
-----------------------------------
James E. Buckman
Vice Chairman
General Counsel and Director
Each person whose signature appears below hereby constitutes and
appoints James E. Buckman and Eric J. Bock, and each of them, his true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and his name, place, and stead, in any and all
capacities, to sign any and all (i) amendments (including post-effective
amendments) and additions to this Registration Statement and (ii)
Registration Statements, and any and all amendments thereto (including
post-effective amendments), relating to the offering contemplated pursuant
to Rule 462(b) under the Securities Act of 1933, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents full power and authority to do and perform
each and every act and this requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or his
substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the securities act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
------------------------------------------------------------------------------------------------------
-------------------------------- April 27, 2001
(Henry R. Silverman) Chairman of the Board,
President, Chief Executive
Officer and Director
/s/ James E. Buckman April 27, 2001
--------------------------------
(James E. Buckman) Vice Chairman, General
Counsel and Director
/s/ Stephen P. Holmes April 27, 2001
--------------------------------
(Stephen P. Holmes) Vice Chairman and Director
/s/ Kevin M. Sheehan April 27, 2001
--------------------------------
(Kevin M. Sheehan) Senior Executive Vice
President and Chief
Financial Officer (Principal
Financial Officer)
/s/ John McClain April 27, 2001
--------------------------------
(John McClain) Senior Vice President and
Controller (Principal
Accounting Officer)
April 27, 2001
--------------------------------
(Myra J. Biblowit) Director
-------------------------------- April 27, 2001
(The Honorable William S. Cohen) Director
/s/ Dr. John C. Malone April 27, 2001
--------------------------------
(Dr. John C. Malone) Director
/s/ Cheryl D. Mills April 27, 2001
--------------------------------
(Cheryl D. Mills) Director
-------------------------------- April 27, 2001
(Leonard S. Coleman) Director
/s/ Martin L. Edelman April 27, 2001
--------------------------------
(Martin L. Edelman) Director
/s/ Sheli Z. Rosenberg April 27, 2001
--------------------------------
(Sheli Z. Rosenberg) Director
/s/ The Rt. Hon. Brian Mulroney, April 27, 2001
P.C., LL.D
--------------------------------
(The Rt. Hon. Brian Mulroney, Director
P.C., LL.D.)
/s/ Robert W. Pittman April 27, 2001
--------------------------------
(Robert W. Pittman) Director
April 27, 2001
--------------------------------
(Robert F. Smith) Director
/s/ Robert E. Nederlander April 27, 2001
--------------------------------
(Robert E. Nederlander) Director
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation of
Cendant Corporation (incorporated by reference to Exhibit
3.1 to the Registrant's 10-Q/A for the quarterly period
ended March 31, 2000, dated July 28, 2000).
3.2 Amended and Restated By-laws of Cendant Corporation
(incorporated by reference to Exhibit 3.2 to the
Registrant's 10- Q/A for the quarterly period ended March
31, 2000, dated July 28, 2000).
4.1 Form of Certificate for Cendant's common stock, par value
$.01 per share. (Incorporated by reference to Exhibit 4.1
to Cendant's Form S- 3 Registration Statement No.
333-45227).
5.1 Opinion of Eric J. Bock, Esq. regarding the legality of
the securities being registered by Cendant hereby.**
10.1 Purchase Agreement dated as of March 28, 2000, by and
between the Company, Liberty Digital.**
23.1 Consent of Deloitte & Touche LLP relating to Cendant
Corporation.*
23.2 Consent of Deloitte & Touche LLP relating to Avis Group
Holdings, Inc..*
23.3 Consent of Eric J. Bock, Esq. (see Exhibit 5.1).**
24.1 Power of Attorney (included on signature page).*
----------------------
* Filed herewith.
** Documents to be filed by amendment.
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 March 12,
2001 (which expresses an unqualified opinion and includes an explanatory
paragraph relating to the change in certain revenue recognition policies
regarding the recognition of non-refundable one-time fees and pro rata
refundable subscription revenue as discussed in Note 1) appearing in the
Annual Report on Form 10-K of Cendant Corporation for the year ended
December 31, 2000 and to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
New York, New York
April 24, 2001
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Cendant Corporation on Form S-3 of our report dated January
29, 2001 (March 2, 2001 as to Note 27), appearing in the Annual Report on
Form 10-K of Avis Group Holdings, Inc. for the year ended December 31, 2000
and included in the Current Report on Form 8-K of Cendant Corporation dated
April 18, 2001.
/s/ Deloitte & Touche LLP
New York, New York
April 23, 2001