As filed with the Securities and Exchange Commission on May 25, 2001
Registration No 333-59244
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CENDANT CORPORATION
(exact name of registrant as specified in its charter)
06-0918165 DELAWARE
I.R.S. Employer Identification (State or other Jurisdiction of
Number) Incorporation or Organization)
9 WEST 57TH STREET
NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1922
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
JAMES E. BUCKMAN, ESQ.
VICE CHAIRMAN AND GENERAL COUNSEL
CENDANT CORPORATION
9 WEST 57TH STREET
NEW YORK, NY 10019
(212) 413-1800
FAX: (212) 413-1923
(Name, address, including zip code, and telephone number
including area code, of agent for service)
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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 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 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. [ ]
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 May 25, 2001
PROSPECTUS
603,865 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 603,865
shares of Cendant CD common stock.
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The shares are being registered to permit the selling stockholder
to sell the shares from time to time in the public market. The selling
stockholder may sell the shares thorough ordinary brokerage transactions or
through any other means described in the section "Plan of Distribution." We
cannot assure you that the selling stockholder will sell all or a portion
of our CD common stock offered under this prospectus.
For a description of our CD common stock, please refer to the
description of common stock in "Summary Comparison of Terms of Existing
Common Stock with Terms of CD Stock and Move.com Stock" in our Proxy
Statement, dated February 10, 2000 (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 April 18, 2001 was $16.89.
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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 603,865 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 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 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 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 settlement
and awarding of attorneys' fees and expenses to counsel for the lead
plaintiffs. On May 22, 2001, the Court of Appeals for the Third Circuit
heard 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 services 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
donors and pledgees selling securities received from a named selling
stockholder after the date of this prospectus. The shares of CD common
stock offered by this prospectus were issued in connection with our
obligation pursuant to the purchase agreement dated as of November 24,
2000, as amended by Amendment No. 1 thereto dated as of March 29, 2001, to
pay Chatham Street Holdings, LLC ("Chatham") $10 million within 90 days
after consummation of the Homestore Transaction.
In connection with the recapitalization of NRT Incorporated
("NRT"), we entered into an agreement with Chatham during 1999 as
consideration for certain amendments made with respect to the NRT franchise
agreements, which amendments provided for additional payments of certain
royalties to us. Pursuant to this agreement, Chatham was granted the right,
until September 2001, to purchase 1,561,000 shares of Move.com common
stock. During 2000, Chatham exercised this contractual right and purchased
1,561,000 shares of Move.com common stock for $16.02 per share or
approximately $25 million in cash. In connection with such exercise,
Chatham received warrants to purchase 780,500 shares of Move.com common
stock at $64.08 per share and 780,500 shares of Move.com common stock at
$128.16 per share. Also during 2000, we invested $25 million in convertible
preferred stock of WMC Finance Co. ("WMC"), an online provider of sub-prime
mortgages and an affiliate of Chatham, and was granted an option to
purchase approximately 5 million shares of WMC common stock.
During December 2000, Chatham sold these shares and warrants back
to us in exchange for consideration consisting of $75 million in cash and
the investment we held in WMC preferred stock valued at $25 million. We
also agreed to pay Chatham an additional $15 million in cash or CD common
stock within 90 days after consummation of the Homestore Transaction, as
defined below. On March 29, 2001, we entered into an amendment to the
foregoing obligation reducing the $15 million obligation to $10 million in
exchange for $5 million in cash.
During 2000, we entered into a definitive agreement (the
"Homestore Transaction") with Homestore.com, Inc. ("Homestore") to sell
certain businesses within our former Move.com Group segment, including the
Internet real estate portal, and our Welcome Wagon International, Inc.
business. On February 16, 2001, we consummated the sale.
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 Chatham
covered by this prospectus, other than brokerage commissions, underwriting
discounts and commissions, transfer taxes and other out-of-pocket expenses
incurred by Chatham 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
------------------------------------- ------------------------------ --------------- ------------------------
Chatham 603,865 * 603,865
* - less than 1%
PLAN OF DISTRIBUTION
This prospectus, including any amendment or supplement, may be
used in connection with sales of up to 603,865 shares of our CD common
stock. The selling stockholder, or its pledgees, assignees, transferees or
other successors in interest may offer its shares of CD common stock at
various times in one or more of the following transactions:
o in exchange or the over-the-counter market transactions;
o in private transactions other than exchange or
over-the-counter market transactions;
o through short sales or put and call option transactions;
o through underwriters, brokers or dealers (who may act as
agent or principal);
o directly to one or more purchasers;
o through agents;
o through distribution by the selling stockholder or its
successor in interest to its members, partners or
shareholders;
o in negotiated transactions;
o by pledge to secure debts and other obligations; or
o in a combination of such methods.
The selling stockholder may sell its shares at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices.
The selling stockholder also may resell all or a portion of its CD
common stock in open market transactions in reliance upon Rule 144 under
the Securities Act, provided it meets the criteria and conforms to the
requirements of Rule 144.
The selling stockholder may use underwriters, brokers, dealers or
agents to sell its shares. Any underwriters, brokers, dealers or agent may
receive compensations in the form of discounts, concessions or commissions
from the selling stockholder, the purchaser or such other persons who may
be effecting sales hereunder (which discounts, concessions or commissions
as to particular underwriters, brokers dealers or agents may be in excess
of those customary in the type of transactions involved). Underwriters may
sell the shares of CD common stock to or though dealers, and such dealers
may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agents. The selling stockholder or other persons
effecting sales hereunder, and any such underwriters, brokers, dealers and
agents may be deemed to be "underwriters" within the meaning of the
Securities Act, and any discounts or commissions they receive and any
profit on the sale of the common stock they realize may be deemed to be
underwriting discounts and commissions under the Securities Act. Some sales
may involve shares in which the selling stockholder has granted security
interests and which are being sold because of foreclosure of those security
interests. At the time a particular offering of shares is made and to the
extent required, the aggregate number of shares being offered, the name or
names of the selling stockholder and the terms of the offering, including
the names of the underwriters, broker-dealers or agents, any discounts,
concessions or commissions and other terms constituting compensation from
the selling stockholder, and any discounts, concessions or commissions
allowed or re-allowed or paid to broker-dealers, will be set forth in an
accompanying prospectus supplement.
The selling stockholder may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in
short sales of our common stock in the course of hedging the positions they
assume with the selling stockholder. The selling stockholder may also enter
into options or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealer or their
financial institution of the shares of common stock offered hereby, which
shares such broker-dealer or their financial institution may resell
pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
The selling stockholder may offer and sell shares of CD common
stock other than for cash. In such event, any required details of the
transaction will be set forth in a prospectus supplement.
Under the securities laws of certain states, the securities
offered by this prospectus may be sold in those states only through
registered or licenced brokers or dealers. In addition, in certain states
the securities offered by this prospectus may not be sold unless they have
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with. In
connection with any resales by the selling stockholder, a prospectus
supplement, if required, will be filed under Rule 424(b) under the
Securities Act, disclosing the number of shares involved and other details
of such resale to the extent appropriate.
Under the rules and regulations under the Exchange Act, any
person engaged in a distribution of the shares offered pursuant to this
prospectus may be limited in its ability to engage in market activities
with respect to those shares. Each selling stockholder will be subject to
the provisions of the Exchange Act and the rules and regulations under the
Exchange Act, including Regulation M. Those rules and regulations may limit
the timing of purchases and sales of any shares offered by the selling
stockholder pursuant to this prospectus, which may affect the marketability
of the shares offered by this prospectus.
We may suspend the use of this prospectus by the selling
stockholder under certain circumstances.
Any common stock sold by a selling stockholder pursuant to a
prospectus supplement will be listed on the NYSE, subject to official
notice of issuance.
LEGAL OPINIONS
The validity of the shares of CD common stock offered hereby will
be passed on for us by Eric J. Bock, Esq., Senior Vice President, Law and
Secretary of Cendant. Mr. Bock holds shares of CD common stock and options
to acquire shares of CD common stock.
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 Quarterly Report on Form 10-Q for the period ending March
31, 2001 (filed on May 11, 2001).
o Current Reports on Form 8-K dated April 2, 2001 (filed on
April 3, 2001), April 18, 2001 (filed on April 19, 2001),
April 18, 2001 (filed on April 19, 2001), May 2, 2001, May
4, 2001, May 10, 2001 (filed on May 11, 2001) and May 24,
2001 (filed on May 25, 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..............................................$ 2,500
*Accounting Fees and Expenses.................................$100,000
*Legal Fees and Expenses......................................$100,000
*Miscellaneous................................................$200,000
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Total Expenses................................................$402,500
=======
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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 November 24, 2000,
by and among Cendant, Chatham Street Holdings,
LLC, Cendant Finance Holding Corporation, with
respect to Section 6 thereof only, WMC Finance
Corporation and with respect to Section 8 thereof
only, Apollo Investment Fund III, L.P.*
10.2 Amendment No. 1 dated as of March 29, 2001, to
Purchase Agreement dated as of November 24, 2000.*
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
** Previously Filed.
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 May 25, 2001.
CENDANT CORPORATION
By: /s/ Eric J. Bock
-------------------------------------
Eric J. Bock
Senior Vice President - Law
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
---------------------------------- --------------------------- ---------------
May 25, 2001
---------------------------------- Chairman of the Board,
(Henry R. Silverman) President, Chief Executive
Officer and Director
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Vice Chairman, General
(James E. Buckman) Counsel and Director
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Vice Chairman and Director
(Stephen P. Holmes)
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Senior Executive Vice
(Kevin M. Sheehan) President and Chief
Financial Officer (Principal
Financial Officer)
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Senior Vice President and
(John McClain) Controller (Principal
Accounting Officer)
May 25, 2001
---------------------------------- Director
(Myra J. Biblowit)
May 25, 2001
---------------------------------- Director
The Honorable William S. Cohen)
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Director
(Dr. John C. Malone)
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Director
(Cheryl D. Mills)
---------------------------------- Director May 25, 2001
(Leonard S. Coleman)
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Director
(Martin L. Edelman)
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Director
(Sheli Z. Rosenberg)
/s/ Eric J. Bock* May 25, 2001
----------------------------------- Director
(The Rt. Hon. Brian Mulroney,
P.C., LL.D.)
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Director
(Robert W. Pittman)
---------------------------------- Director May 25, 2001
(Robert F. Smith)
/s/ Eric J. Bock* May 25, 2001
---------------------------------- Director
(Robert E. Nederlander)
*By: /s/ Eric J. Bock
-------------------------------
(Attorney-in-fact)
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 November 24, 2000, by and
among Cendant, Chatham Street Holdings, LLC, Cendant Finance
Holding Corporation, with respect to Section 6 thereof only,
WMC Finance Corporation and with respect to Section 8
thereof only, Apollo Investment Fund III, L.P.*
10.2 Amendment No. 1 dated as of March 29, 2001, to Purchase
Agreement dated as of November 24, 2000.*
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
** Previously Filed.
Exhibit 10.1
STOCK PURCHASE AGREEMENT (this
"Agreement"), dated as of November 24, 2000,
by and among CHATHAM STREET HOLDINGS, LLC, a
Delaware limited liability company (the
"Seller"), CENDANT CORPORATION, a Delaware
corporation ("Cendant"), CENDANT FINANCE
HOLDING CORPORATION, a Delaware corporation
and an affiliate of Cendant ("Cendant
Finance" and, collectively with Cendant the
"Buyer"), with respect to Section 6 hereof
only, WMC FINANCE CO., a Delaware corporation
("WMC"), and with respect to Section 8 hereof
only, APOLLO INVESTMENT FUND III, L.P.
"Apollo").
WHEREAS, the parties hereto deem it desirable and in
their respective best interests to enter into this Agreement for Seller to
sell to Buyer (a) 2,626,712 shares (the "WMC Common Shares") of Class A
Common Stock (the "WMC Common Stock") of WMC, (b) 1,561,000 shares (the
"Move.com Common Shares") of the class of Cendant's common stock designated
as Move.com Common Stock (the "Move.com Common Stock"), (c) a warrant to
purchase 780,500 shares of Move.com Common Stock for a purchase price of
$64.08 per share and (d) a warrant to purchase 780,500 shares of Move.com
Common Stock for a purchase price of $128.16 per share (the warrants
referred to in (c) and (d), the "Warrants" and, collectively with the WMC
Common Stock and the Move.com Common Stock, the "Transferred Securities")
and for Buyer to sell to Seller 2,606,342 shares (the "WMC Preferred
Shares") of Series E Cumulative Senior Preferred Stock of WMC (the "WMC
Preferred Stock"); and
WHEREAS, the parties hereto deem it desirable and in
their respective best interests for Seller, in connection with the sale of
the Transferred Securities, to assign to Buyer all of its right, title and
interest as a holder of the Move.com Common Shares and the Warrants
pursuant to the Registration Rights Agreement, dated as of March 29, 2000
(the "Move.com Registration Rights Agreement").
NOW THEREFORE, the parties hereto hereby agree as
follows:
(i) Sales of Transferred Securities.
-------------------------------
(a) In consideration of the payment as
described in Section 1(b) hereof, the
delivery by Cendant Finance of the WMC
Preferred Shares held by Cendant Finance
as described in Section 1(c) hereof and
the agreement by Cendant to make payments,
if any, following the consummation of a
Homestore Transaction as described in
Section 1(d) hereof, the Seller agrees, at
the Closing, to sell, assign, transfer and
convey to Buyer without representation or
warranty (other than as expressly provided
herein), all of its right, title and
interest in and to (i) the Transferred
Securities and as a holder of the Move.com
Common Shares and the Warrants under the
Move.com Registration Rights Agreement,
free and clear of all liens, claims,
charges and encumbrances whatsoever, and
with no restrictions on the voting rights
of the Transferred Securities and (ii) the
2,626,712 WMC Common Shares, free and
clear of all liens claims, charges and
encumbrances whatsoever, and with no a
restrictions on the voting rights of the
WMC Common Shares.
(b) Cendant hereby agrees, at the Closing, to
pay to Seller $75.1 million (the "Initial
Payment Amount") payable in consideration
for the conveyance of the securities set
forth in Sections 1(a)(i) and (ii). The
Initial Payment Amount shall be paid in
cash at the Closing by wire transfer of
immediately available funds to accounts
designated by Seller.
(c) Cendant Finance hereby agrees, at the
Closing, to sell, assign, transfer and
convey to Seller without representation or
warranty (other than as expressly provided
herein), in consideration of the
conveyance of the securities set forth in
Sections 1(a)(i) and (ii), all of its
right, title and interest in the 2,606,342
WMC Preferred Shares owned of record and
beneficially by Cendant Finance, free and
clear of all liens, claims, charges and
encumbrances whatsoever, and with no
restrictions on the voting rights thereof.
At the Closing, Cendant Finance shall
deliver to Seller certificates
representing all of such WMC Preferred
Shares, duly endorsed for transfer to
Seller or its designee. Cendant Finance
hereby waives compliance with any of the
procedures relating to a redemption of the
WMC Preferred Shares contained in the
Certificate of Designations relating to
the WMC Preferred Shares filed with the
Secretary of State of Delaware on March 9,
2000.
(d) If a Homestore Transaction shall be
consummated at any time on or prior to the
second anniversary of the date hereof,
Cendant shall pay to Seller an additional
amount equal to $15.0 million (the
"Homestore Transaction Amount"), payable
by Cendant, in consideration for the
conveyance of the securities set forth in
Sections 1(a)(i) and (ii), within ninety
(90) days after the consummation of such
Homestore Transaction (the date on which
such payment is made, the "Homestore
Payment Date"); provided, however, that at
Cendant's option, up to 100% of such
Homestore Transaction Amount shall be
payable by delivering to Seller a number
of Marketable Securities (as defined
below), the Proceeds (as defined in
Section 5 below) of which shall be equal
to the Homestore Transaction Amount minus
the actual cash payment made by Cendant on
the Homestore Payment Date. The cash
portion of the Homestore Transaction
Amount shall be payable in immediately
available funds on the Homestore Payment
Date. The Marketable Securities (if any)
delivered by Cendant pursuant to this
Section shall be delivered simultaneously
with the sale of such Marketable
Securities pursuant to Section 5 hereof.
For purposes of this Agreement, securities
shall only be "Marketable Securities" if
(i) they are fully-paid and non-assessable
shares, free and clear of all liens,
charges or encumbrances whatsoever, and
with no restrictions on the voting rights
thereof of (a) the class of Cendant's
common stock designated as Cendant Common
Stock ("Cendant Common Stock" and/or (b)
common stock of Homestore.com, Inc.
("Homestore Common Stock"), (ii) the offer
and sale of such securities to Seller on
the Homestore Payment Date has been
registered under the Securities Act of
1933, as amended (the "Securities Act"),
pursuant to an effective registration
statement, (iii) such securities shall be
capable of being resold publicly by Seller
immediately after the delivery thereof
pursuant to this Agreement in compliance
with Federal and state securities laws and
(iv) securities of the same class thereof
are listed for trading, and trading
thereon is not suspended, on the New York
Stock Exchange, in the case of Cendant
Common Stock, or the Nasdaq National
Market, in the case of Homestore Common
Stock (as the case may be), on the date of
sale thereof by Cendant as set forth in
Section 5 below. For purposes hereof, a
"Homestore Transaction" shall mean any
transaction between Move.com, Inc., a
Delaware corporation ("Move.com"), and/or
Cendant, on the one hand, and
Homestore.com, Inc., on the other hand,
which results in (x) the sale of all or
substantially all of the assets of
Move.com or any of its subsidiaries in one
or a series of related transactions,
whether by merger, consolidation, sale of
assets or otherwise, (y) a merger,
consolidation, sale of securities of
Move.com or other transaction or series of
related transactions, as a result of which
either (1) any person or "group" (as
defined in Rules 13d-1 and 13d-5 under the
Securities Exchange Act of 1934, as
amended) becomes the beneficial owner of
securities representing at least
thirty-five percent (35%) of the
outstanding Move.com Common Stock, the
outstanding equity securities of Move.com
or the outstanding voting securities of
Move.com or (2) the holders of the voting
securities of Move.com issued and
outstanding prior to such transaction or
series of related transactions cease to
hold at least sixty-five percent (65%) fo
the issued and outstanding common stock,
equity securities and voting securities of
the surviving entity immediately following
such transaction or series of related
transactions (in each case, assuming the
conversion of all convertible securities
and the exercise of all options, warrants
and other rights held by such beneficial
owner) or (z) the directors of Move.com as
of the date hereof together with directors
approved by a majority of the directors in
office at the time of election of any new
directors of Move.com shall cease to
constitute a majority of the total number
of directors of Move.com.
(e) Upon the Closing, (i) Cendant shall record
on its books and records the transfer of
the Move.com Common Shares and the
Warrants from Seller to Buyer and (ii) WMC
shall record on its books and records the
transfer of (A) the WMC Common Shares from
Seller to Buyer and (B) the WMC Preferred
Shares from Buyer to Seller.
(ii) Closing. The closing (the "Closing") shall take
place simultaneously with the execution and
delivery of this Agreement (the "Closing Date"),
at the offices of O'Sullivan Graev & Karabell,
LLP, 30 Rockefeller Plaza, New York, New York
10112.
(iii) Representations and Warranties of Seller. Seller
represents and warrants to Buyer as follows:
(a) Corporate Authorization. Seller has all
requisite power and authority to execute,
deliver and perform this Agreement and the
transactions contemplated hereby, and the
execution, delivery and performance by
Seller of this Agreement have been duly
authored by all requisite action by
Seller. This Agreement has been duly
executed and delivered by Seller and,
assuming due execution by Cendant and
Cendant Finance, this Agreement
constitutes a valid and binding obligation
of Seller, enforceable against Seller 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. Seller
is an accredited investor within the
meaning of Regulation D promulgated by the
Securities and Exchange Commission and, by
virtue of its experience in evaluating and
investing in private placement
transactions of securities in companies
similar to Cendant, Seller is capable of
evaluating the merits and risks of its
investment in Cendant, and has the
capacity to protect its own interests.
Seller acknowledges that Cendant does not
make any representation or warranty as to
the future profitability, success or
business prospects of Cendant.
(c) Investment. Seller has not been formed
solely for the purpose of making this
investment and is acquiring the Cendant
Common Stock (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.
Seller understands that the Cendant Common
Stock 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 Seller's representations
as expressed herein.
(d) Valid Title. Seller has valid title to the
WMC Common Stock and the Transferred
Securities and there are no liens, charges
or encumbrances in respect of the WMC
Common Stock or the Transferred
Securities. Seller has all rights under
the Move.com Registration Rights Agreement
in connection with the Transferred
Securities and has not assigned any of
such rights thereunder to any other
Person.
(e) NO ADDITIONAL REPRESENTATIONS. THE
REPRESENTATIONS AND WARRANTIES SET FORTH
IN THIS SECTION 3 ARE THE ONLY
REPRESENTATIONS AND WARRANTIES MADE BY THE
SELLER. 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
SELLER BE LIABLE FOR SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES.
(iv) Representations and Warranties of Buyer. Cendant
and Cendant Finance jointly and severally represent
and warrant to Seller as of the date hereof as
follows:
(a) Corporate Authorization. Each of Cendant
and Cendant Finance has all requisite
power and authority to execute, deliver
and perform this Agreement and the
transactions contemplated hereby, and the
execution, delivery and performance by
each of Cendant and Cendant Finance of
this Agreement have been duly authorized
by all requisite action by each of Cendant
and Cendant Finance. This Agreement has
been duly executed and delivered by each
of Cendant and Cendant Finance and,
assuming due execution by WMC and Seller,
this Agreement constitutes a valid and
binding obligation of each of Cendant and
Cendant Finance, enforceable against each
of Cendant and Cendant Finance 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. Buyer
is an accredited investor within the
meaning of Regulation D promulgated by the
Securities and Exchange Commission and, by
virtue of its experience in evaluating and
investing in private placement
transactions of securities in companies
similar to WMC, Buyer is capable of
evaluating the merits and risks of its
investment in WMC, and has the capacity to
protect its own interests. Buyer
acknowledges that WMC and Seller do not
make any representation or warranty as to
the future profitability, success or
business prospects of WMC. Buyer is
currently a stockholder of WMC, has had
access to WMC's senior management, has had
an opportunity to ask questions and
receive answers from WMC and its senior
management regarding matters relevant to
WMC and an investment therein and has had
the opportunity to obtain any and all
information and conduct such due diligence
review as it has deemed appropriate.
(c) Investment. Cendant Finance has not been
formed solely for the purpose of making
this investment and is acquiring the WMC
Common 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. Cendant Finance understands
that the WMC Common 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 Cendant's and Cendant
Finance's representations as expressed
herein.
(d) Valid Title. Cendant Finance has valid
title to all of the WMC Preferred Shares
purchased by Buyer on March 9, 2000 (or
issued in connection with any payment of
an in-kind dividend thereon since such
date) and there are no liens, charges or
encumbrances in respect of the WMC
Preferred Shares.
(v) Sales of Marketable Securities. In the event
that Cendant elects to pay a portion of the
Homestore Transaction Amount by delivering
Marketable Securities to Seller pursuant to
Section 1(d) hereof, Cendant shall cause such
Marketable Securities to be sold on Seller's
behalf on the Homestore Payment Date or as soon
as possible thereafter through a broker selected
by Cendant on the Homestore Payment Date. The
Proceeds of the sale of such Marketable
Securities shall be paid to Seller
simultaneously with the settlement of such sale
transaction. As used in this Agreement, the
"Proceeds" of any sale of Marketable Securities
by Seller hereunder shall be equal to the cash
proceeds, net of all underwriters', sales or
brokers' commissions and discounts and all other
fees and expenses relating to or arising out of
the transactions contemplated hereby, including
without limitation, all registration expenses,
in each case, that are incurred by Seller and
are not paid by Cendant.
(vi) Repurchases of WMC Common Stock by WMC. WMC
represents that the WMC Common Stock being
delivered to Buyer at the Closing constitutes no
more than 19.99% of the shares of WMC Common
Stock outstanding as of the Closing Date. WMC
agrees that, for so long as Buyer owns any
shares of WMC Common Stock, WMC shall not,
without the prior written consent of Buyer,
repurchase, redeem, reclassify, cancel or
otherwise reduce the number of its outstanding
shares of capital stock if the effect of such
repurchase, redemption, reclassification,
cancellation or other reduction would be to
cause Buyer to own more than 19.99% of the
outstanding shares of WMC Common Stock.
(vii) Public Announcements. Buyer and Seller 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.
(viii) Indemnification of Buyer by Apollo. Apollo shall
indemnify, defend and hold harmless Buyer and
any of its directors, officers, agents and
affiliates (the "Buyer Indemnified Parties")
from and against any and all losses, damages and
liabilities (including reasonable attorneys'
fees and expenses) suffered by any of the Buyer
Indemnified Parties as a result of, arising out
of, or incurred with respect to Buyer's
ownership of the WMC Common Shares (which, for
the avoidance of doubt, shall exclude the loss
of the value of the WMC Common Shares) other
than those losses, damages and liabilities as a
result of, arising out of, or incurred with
respect to any material misstatement by any
Buyer Indemnified Party in any filing or
submission to any governmental authority or any
document sent to Buyer's stockholders.
(ix) 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 internal law 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) 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
Sate of New York, and any appellate
court from any thereof, 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 such Federal 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.
(c) Counterparts. This Agreement may be
executed in two or more 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.
(d) 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.
(e) Amendments. This Agreement may only be
amended in a writing executed by each
of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
CHATHAM STREET HOLDINGS, LLC
By: /s/ Marc E. Becker
-----------------------------------
Name: Marc E. Becker
Title: Vice President
CENDANT CORPORATION
By: /s/ Eric J. Bock
----------------------------------
Name: Eric J. Bock
Title: Senior Vice President - Law
CENDANT FINANCE HOLDING CORPORATION
By: /s/ Eric J. Bock
------------------------------------
Name: Eric J. Bock
Title: Senior Vice President - Law
WMC FINANCE CO.
(with respect to Section 6 only)
By: /s/ Scott McAfee
-----------------------------
Name: Scott McAfee
Title:
APOLLO INVESTMENT FUND III, L.P.
(with respect to Section 8 only)
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
Exhibit 10.2
AMENDMENT NO. 1, dated as of
March 29, 2001 (this "Amendment") to
the STOCK PURCHASE AGREEMENT, dated as
of November 24, 2000, by and among
CHATHAM STREET HOLDINGS, LLC, a
Delaware limited liability company,
CENDANT CORPORATION, a Delaware
corporation, CENDANT FINANCE HOLDING
CORPORATION, a Delaware corporation
and an affiliate of Cendant
Corporation, with respect to Section 6
thereof only, WMC FlNANCE CO., a
Delaware corporation, and, with
respect to Section 8 thereof only,
APOLLO INVESTMENT FUND III, L.P. (the
"Original Agreement", as amended, this
"Agreement").
Preamble
WHEREAS, Section 9(e) of the Original Agreement allows the amendment
of the Original Agreement by a writing executed by each of the parties
thereto; and
WHEREAS, the undersigned constitute each of the parties to the
Original Agreement and have determined that it would be in their respective
best interests to amend the Original Agreement on the terms and conditions
set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties to this Amendment
hereby agree as follows:
Section 1. Capitalized Terms. Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Original Agreement.
Section 2. Amendments to the Original Agreement. The Original
Agreement is hereby amended as follows:
(a) Section 1 of the Original Agreement is hereby amended
by deleting Section 1(b) in its entirety and substituting the following
language in lieu thereof:
"Cendant hereby agrees, at the Closing, to pay to Seller
$75.1 million (the "Initial Payment Amount"), payable in
consideration for the conveyance of the securities set
forth in Sections 1(a)(i) and (ii). The Initial Payment
Amount shall be paid in cash at the Closing by wire
transfer of immediately available funds to accounts
designated by Seller. Cendant hereby agrees to pay
Seller, on March 29, 2001, an additional amount of $5.0
million (the "Additional Payment Amount"), payable in
consideration for the conveyance of the securities set
forth in Sections 1(a)(i) and (ii). The Additional
Payment Amount shall be paid in cash on March 29, 2001 by
wire transfer of immediately available funds to accounts
designated by the Seller."
(b) The first sentence of Section 1(d) of the Original
Agreement is hereby amended by deleting "$15.0 million" and replacing it
with "$10.0 million".
Section 3. Entire Agreement. Except as modified by this Amendment,
the Original Agreement shall remain in full force and effect, enforceable
in accordance with its terms. This Amendment is not a consent to any waiver
or modification of any other terms or conditions of the Agreement or any of
the instruments or documents referred to in the Agreement and shall not
prejudice any right or rights which the parties thereto may now or
hereafter have under or in connection with the Agreement or any of the
instruments or documents referred to therein. The Original Agreement and
this Amendment contain all of the agreements between the parties with
respect to the subject matter thereof. The parties to this Amendment hereby
acknowledge that nothing contained herein shall modify or otherwise alter
the obligations of WMC Finance Co. pursuant to the Original Agreement.
Section 4. Effectiveness. This Amendment shall become effective on
the date each of the parties hereto shall have executed a copy hereof
(whether the same or different copies).
Section 5. Counterparts. This Amendment may be executed in any
number of counterparts, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute
one agreement.
Section 6. Governing Law. All questions concerning the construction,
interpretation and validity of this Amendment shall be governed by and
construed and enforced in accordance with the internal law 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.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused their
authorized representatives to execute this Agreement on the date first
written above.
CHATHAM STREET HOLDINGS, LLC
By: /s/ Marc E. Becker
------------------------------------------
Name: Marc E. Becker
Title: Vice President
CENDANT CORPORATION
By: /s/ Samuel L. Katz
------------------------------------------
Name: Samuel L. Katz
Title: Senior Executive Vice President
CENDANT FINANCE HOLDING CORPORATION
By: /s/ Samuel L. Katz
------------------------------------------
Name: Samuel L. Katz
Title: Senior Executive Vice President
WMC FINANCE CO.
By: /s/ Scott A. McAfee
--------------------------
Name: Scott A. McAfee
Title: President and CEO
APOLLO INVESTMENT FUND 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
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1
to Registration Statement No. 333-59244 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 incorporated by reference in the
Prospectus, which is a part of such Registration Statement, and to the
reference to us under the heading "Experts" in such Prospectus.
/s/ Deloitte & Touche LLP
New York, New York
May 24, 2001
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1
to Registration Statement No. 333-59244 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, which is incorporated
by reference in the Prospectus, which is part of such Registration
Statement.
/s/ Deloitte & Touche LLP
New York, New York
May 24, 2001