RESALE REGISTRATION RIGHTS AGREEMENT
between
CENDANT CORPORATION
and
LEHMAN BROTHERS INC.
DATED AS OF FEBRUARY 13, 2001
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of February 13, 2001,
between Cendant Corporation, a Delaware corporation (together with any successor
entity, herein referred to as the "Issuer"), and Lehman Brothers Inc. (the
"Initial Purchaser").
Pursuant to the Purchase Agreement, dated February 7, 2001, between
the Issuer and the Initial Purchaser (the "Purchase Agreement"), the Initial
Purchaser has agreed to purchase from the Issuer $1,232,715,000 ($1,479,358,000
if the Initial Purchaser exercises the over-allotment option in full) in
aggregate principal amount at maturity of Zero Coupon Senior Convertible
Contingent Debt Securities (CODES SM) Notes due 2021 (the "Debentures"). The
Debentures will be convertible into fully paid, nonassessable CD common stock,
par value $.01 per share, of the Issuer (the "Common Stock") on the terms, and
subject to the conditions, set forth in the Indenture (as defined herein). To
induce the Initial Purchaser to purchase the Debentures, the Issuer has agreed
to provide the registration rights set forth in this Agreement pursuant to
Section 3(m) of the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
AGREEMENT: This Resale Registration Rights Agreement.
APPLICABLE AMOUNT: With respect to each $1,000 principal amount at
maturity of the Debentures, the sum of the initial issue price of such
Debentures ($608.41) plus accrued original issue discount with respect to
such Debentures through the date of determination.
BLUE SKY APPLICATION: As defined in Section 6(a) hereof.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
BUSINESS DAY: A day other than a Saturday or Sunday or any day on
which banking institutions in the city of New York are authorized or
obligated by law or executive order to close.
CLOSING DATE: The date of this Agreement.
COMMISSION: Securities and Exchange Commission.
COMMON STOCK: As defined in the preamble hereto.
DAMAGES PAYMENT DATE: Each February 13 and August 13.
DEBENTURES: As defined in the preamble hereto.
EFFECTIVENESS PERIOD: As defined in Section 2(a)(iii) hereof.
EFFECTIVENESS TARGET DATE: As defined in Section 2(a)(ii) hereof.
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EXCHANGE ACT: Securities Exchange Act of 1934, as amended.
HOLDER: A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
HOLDER QUESTIONNAIRE: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 6(a) hereof.
INDENTURE: The Indenture, dated as of February 13, 2001, between the
Issuer and The Bank of New York, as trustee (the "Trustee"), pursuant to
which the Debentures are to be issued, as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms
thereof.
INITIAL PURCHASER: As defined in the preamble hereto.
ISSUER: As defined in the preamble hereto.
LIQUIDATED DAMAGES: As defined in Section 3(a) hereof.
MAJORITY OF HOLDERS: Holders holding over 50% of the aggregate
principal amount at maturity of Debentures outstanding; PROVIDED that, for
purpose of this definition, a holder of shares of Common Stock which
constitute Transfer Restricted Securities and issued upon conversion of
the Debentures shall be deemed to hold an aggregate principal amount at
maturity of Debentures (in addition to the principal amount at maturity of
Debentures held by such holder) equal to the quotient of (x) the number of
such shares of Common Stock held by such holder and (y) the conversion
rate then in effect as determined in accordance with the Indenture.
NASD: National Association of Securities Dealers, Inc.
PERSON: An individual, partnership, corporation, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
PURCHASE AGREEMENT: As defined in the preamble hereto.
PROSPECTUS: The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by
all other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
QUESTIONNAIRE DEADLINE: As defined in Section 2(b) hereof.
RECORD HOLDER: With respect to any Damages Payment Date, each Person
who is a Holder on the 15th day preceding the relevant Damages Payment
Date.
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REGISTRATION DEFAULT: As defined in Section 3(a) hereof.
SALE NOTICE: As defined in Section 4(d) hereof.
SECURITIES ACT: Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 2(a)(i) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 2(a)(i) hereof.
SUSPENSION NOTICE. As defined in Section 4(c) hereof.
SUSPENSION PERIOD. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as in effect on the date the
Indenture is qualified under the TIA.
TRANSFER RESTRICTED SECURITIES: Each Debenture and each share of
Common Stock issued upon conversion of Debentures until the earlier of:
(i) the date on which such Debenture or such share of Common
Stock issued upon conversion has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement;
(ii) the date on which such Debenture or such share of Common
Stock issued upon conversion is transferred in compliance with Rule
144 under the Securities Act or may be sold or transferred by a
person who is not an affiliate of the Issuer pursuant to Rule 144
under the Securities Act (or any other similar provision then in
force) without any volume or manner of sale restrictions thereunder;
or
(iii) the date on which such Debenture or such share of Common
Stock issued upon conversion ceases to be outstanding (whether as a
result of redemption, repurchase and cancellation, conversion or
otherwise).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration
in which securities of the Issuer are sold to an underwriter for
reoffering to the public.
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2. SHELF REGISTRATION.
(a) The Issuer shall:
(i) not later than 90 days after the date hereof (the "Shelf
Filing Deadline"), cause to be filed a registration statement
pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities held by
Holders that have provided the information required pursuant to the
terms of Section 2(b) hereof;
(ii) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission
not later than 180 days after the date hereof (the "Effectiveness
Target Date"); and
(iii) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the
extent necessary to ensure that (A) it is available for resales by
the Holders of Transfer Restricted Securities entitled to the
benefit of this Agreement and (B) conforms with the requirements of
this Agreement and the Securities Act and the rules and regulations
of the Commission promulgated thereunder as announced from time to
time for a period (the "Effectiveness Period") of:
(1) two years following the last date of original
issuance of Debentures; or
(2) such shorter period that will terminate when (x) all
of the Holders of Transfer Restricted Securities are able to
sell all Transfer Restricted Securities immediately without
restriction pursuant to Rule 144(k) under the Securities Act
or any successor rule thereto, (y) when all Transfer
Restricted Securities have ceased to be outstanding (whether
as a result of redemption, repurchase and cancellation,
conversion or otherwise) or (z) all Transfer Restricted
Securities of Holders that complete and deliver in a timely
manner the Holder Questionnaire are registered under the Shelf
Registration Statement and have been disposed of in accordance
with the Shelf Registration Statement.
(b) No Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in the Shelf Registration Statement pursuant
to this Agreement unless such Holder furnishes to the Issuer in writing, prior
to or on the 20th Business Day after receipt of a request therefor (the
"Questionnaire Deadline"), such information as the Issuer may reasonably request
for use in connection with the Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein and in any application to be filed with
or under state securities laws (the form of which request is attached hereto as
Exhibit A and is referred to herein as the "Holder Questionnaire"). In
connection with all such requests for information from
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Holders of Transfer Restricted Securities, the Issuer shall notify such Holders
of the requirements set forth in the preceding sentence. Holders that do not
complete the questionnaire and deliver it to the Issuer shall not be named as
selling securityholders in the Prospectus or preliminary Prospectus included in
the Shelf Registration Statement and therefore shall not be permitted to sell
any Transfer Restricted Securities pursuant to the Shelf Registration Statement.
No Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 3 hereof unless such Holder shall have provided all
such reasonably requested information prior to or on the Questionnaire Deadline.
Each Holder as to which the Shelf Registration Statement is being effected
agrees to furnish promptly to the Issuer all information required to be
disclosed in order to make information previously furnished to the Issuer by
such Holder not materially misleading. Each Holder who intends to be named as a
selling Holder in the Shelf Registration Statement shall promptly furnish to the
Issuer in writing such other information as the Issuer may from time to time
reasonably request in writing.
3. LIQUIDATED DAMAGES.
(a) If:
(i) the Shelf Registration Statement is not filed with
the Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been
declared effective by the Commission prior to or on the
Effectiveness Target Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during
the Effectiveness Period, shall thereafter cease to be effective or
fail to be usable for its intended purpose without being succeeded
within five Business Days by a post-effective amendment to the Shelf
Registration Statement or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or
(iv) (A) prior to or on the 45th or 75th day, as the case may
be, of any Suspension Period, such suspension has not been
terminated or (B) Suspension Periods exceed an aggregate of 90 days
in any 360 day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"Registration Default"), the Issuer hereby agrees to pay liquidated damages
("Liquidated Damages") with respect to the Transfer Restricted Securities from
and including the day following the Registration Default to but excluding the
day on which the Registration Default has been cured, accruing at a rate:
(A) in respect of the Debentures, to each holder of
Debentures, (x) with respect to the first 90-day period during which
a Registration Default shall have occurred and be continuing, equal
to 0.25% per annum of the Applicable Amount of the Debentures, and
(y) with respect to the period commencing on the 91st day following
the day the Registration Default shall have occurred and be
continuing,
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equal to 0.50% per annum of the Applicable Amount of the Debentures;
PROVIDED that in no event shall Liquidated Damages accrue at a rate
per year exceeding 0.50% of the Applicable Amount of the Debentures;
and
(B) in respect of any shares of Common Stock, to each holder
of shares of Common Stock issued upon conversion of Debentures, (x)
with respect to the first 90-day period in which a Registration
Default shall have occurred and be continuing, equal to 0.25% per
annum of the Applicable Amount of the converted Debentures, and (y)
with respect to the period commencing the 91st day following the day
the Registration Default shall have occurred and be continuing,
equal to 0.50% per annum of the Applicable Amount of the converted
Debentures; PROVIDED that in no event shall Liquidated Damages
accrue at a rate per year exceeding 0.50% of the Applicable Amount
of the converted Debentures.
(b) All accrued Liquidated Damages shall be paid in arrears to
Record Holders by the Issuer on each Damages Payment Date by wire transfer of
immediately available funds or by federal funds check. Following the cure of all
Registration Defaults relating to any particular Debenture or share of Common
Stock, the accrual of Liquidated Damages with respect to such Debenture or share
of Common Stock will cease.
All obligations of the Issuer set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive
monetary remedy available to the Holders of Transfer Restricted Securities for
such Registration Default.
4. REGISTRATION PROCEDURES.
(a) In connection with the Shelf Registration Statement, the
Issuer shall comply with all the provisions of Section 4(b) hereof and shall use
its best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto, shall as expeditiously as
possible prepare and file with the Commission a Shelf Registration Statement
relating to the registration on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Issuer shall:
(i) Subject to any notice by the Issuer in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), use its reasonable best efforts
to keep the Shelf Registration Statement continuously effective
during the Effectiveness Period; upon the occurrence of any event
that would cause the Shelf Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission
or (B) not be
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effective and usable for resale of Transfer Restricted Securities
during the Effectiveness Period, the Issuer shall file promptly an
appropriate amendment to the Shelf Registration Statement or a
report filed with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and the Shelf Registration
Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter. Notwithstanding
the foregoing, the Issuer may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders for a period
not to exceed an aggregate of 45 days in any 90-day period (each
such period, a "Suspension Period") if:
(x) an event occurs and is continuing as a result of
which the Shelf Registration Statement would, in the Issuer's
reasonable judgment, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and
(y) the Issuer reasonably determines that the disclosure
of such event at such time would have a material adverse
effect on the business of the Issuer (and its subsidiaries, if
any, taken as a whole);
PROVIDED that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Issuer's ability to consummate
such transaction, the Issuer may extend a Suspension Period from 45
days to 75 days; PROVIDED, HOWEVER, that Suspension Periods shall
not exceed an aggregate of 90 days in any 360-day period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective
during the Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof
set forth in the Shelf Registration Statement or supplement to the
Prospectus; provided that in no event will such method(s) of
distribution take the form of an Underwritten Offering without the
prior agreement of the Issuer, which agreement will not be
unreasonably withheld.
(iii) Advise the underwriter(s), if any, and selling Holders
promptly (but in any event within five Business Days) and, if
requested by such Persons, to confirm such advice in writing:
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(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
the Shelf Registration Statement or any post-effective
amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to
the Shelf Registration Statement or amendments or supplements
to the Prospectus or for additional information relating
thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any
statement of a material fact made in the Shelf Registration
Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or
changes in the Shelf Registration Statement or the Prospectus
in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification
of the Transfer Restricted Securities under state securities or Blue
Sky laws, the Issuer shall use its reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest possible
time and will provide to the Initial Purchaser and each Holder who
is named in the Shelf Registration Statement prompt notice of the
withdrawal of any such order.
(iv) Furnish to one counsel for the selling Holders and each
of the underwriter(s), if any, before filing with the Commission, a
copy of the Shelf Registration Statement and copies of any
Prospectus included therein or any amendments or supplements to the
Shelf Registration Statement or Prospectus (other than documents
incorporated by reference after the initial filing of the Shelf
Registration Statement), which documents will be subject to the
review of such holders and underwriter(s), if any, for a period of
at least five Business Days (in the case of the Shelf Registration
Statement) and two Business Days (in the case of any amendment or
supplement thereto), and the Issuer will not file the Shelf
Registration Statement or Prospectus or any amendment or supplement
to the Shelf Registration Statement or Prospectus (other than
documents incorporated by reference) to which a selling Holder of
Transfer Restricted Securities covered by the Shelf Registration
Statement or the underwriter(s), if any, shall reasonably object
prior to the filing thereof. A selling Holder or underwriter, if
any, shall be
9
deemed to have reasonably objected to such filing if the Shelf
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material
misstatement or omission.
(v) Make available at reasonable times for inspection by one
or more representatives of the selling Holders, designated in
writing by a Majority of Holders whose Transfer Restricted
Securities are included in the Shelf Registration Statement, any
underwriter participating in any distribution pursuant to the Shelf
Registration Statement, and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), all financial and
other records, pertinent corporate documents and properties of the
Issuer as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the
Issuer's officers, directors, managers and employees to supply all
information reasonably requested by any such representative or
representatives of the selling Holders, underwriter, attorney or
accountant in connection with the Shelf Registration Statement after
the filing thereof and before its effectiveness, subject, upon the
request of the Issuer, to the execution of a confidentiality
agreement which is reasonable in the context of a registered public
offering.
(vi) If requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request
to have included therein, including, without limitation: (1)
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, (2) information with respect to the principal
amount of Debentures or number of shares of Common Stock being sold
to such underwriter(s), (3) the purchase price being paid therefor
and (4) any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as
soon as reasonably practicable after the Issuer is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(vii) Furnish to each selling Holder and each of the
underwriter(s), if any, upon their request, without charge, at least
one copy of the Shelf Registration Statement, as first filed with
the Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Person may
request).
(viii) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request;
subject to any notice by the Issuer in accordance with this Section
4(b) of the existence of any fact or event of the kind described in
Section 4(b)(iii) (D), the Issuer hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if
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any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto.
(ix) The Issuer shall:
(A) upon request, furnish to each selling Holder and
each underwriter, if any, in such substance and scope as they
may reasonably request and as are customarily made by issuers
to underwriters in primary underwritten offerings for selling
security holders, upon the date of closing of any sale of
Transfer Restricted Securities in an Underwritten
Registration:
(1) a certificate, dated the date of such closing,
signed by the Chief Financial Officer of the Issuer
confirming, as of the date thereof, the matters set
forth in Section 5(g) of the Purchase Agreement and such
other matters as such parties may reasonably request;
(2) opinions, each dated the date of such closing,
of counsel to the Issuer covering such of the matters as
are customarily covered in legal opinions to
underwriters in connection with underwritten offerings
of securities; and
(3) customary comfort letters, dated the date of
such closing, from the Issuer's independent accountants
(and from any other accountants whose report is
contained or incorporated by reference in the Shelf
Registration Statement) to the extent deliverable in
accordance with their professional standards, in the
customary form and covering matters of the type
customarily covered in comfort letters to underwriters
in connection with underwritten offerings of securities;
(B) set forth in full in the underwriting agreement, if
any, indemnification provisions and procedures which provide
rights no less protective than those set forth in Section 6
hereof with respect to all parties to be indemnified; and
(C) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance
with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the selling Holders pursuant to this clause
(ix).
(x) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s),
if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions in
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the United States as the selling Holders or underwriter(s), if any,
may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; PROVIDED, HOWEVER, that the Issuer
shall not be required (A) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so
qualified or to take any action that would subject it to the service
of process in any jurisdiction where it is not now so subject or (B)
to subject themselves to taxation in any such jurisdiction if they
are not now so subject.
(xi) Cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities
to be sold and not bearing any restrictive legends (unless required
by applicable securities laws); and enable such Transfer Restricted
Securities to be in such denominations and registered in such names
as the Holders or the underwriter(s), if any, may request at least
two Business Days before any sale of Transfer Restricted Securities
made by such underwriter(s).
(xii) Use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to
be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its reasonable best efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading.
(xiv) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf
Registration Statement and provide the Trustee under the Indenture
with certificates for the Debentures that are in a form eligible for
deposit with The Depository Trust Company.
(xv) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained in
accordance with the rules and regulations of the NASD.
(xvi) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and all reporting
requirements under the rules and regulations of the Exchange Act.
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(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the holders of Debentures to effect such
changes to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the TIA; and execute
and use its best efforts to cause the Trustee thereunder to execute
all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner.
(xviii) Cause all Transfer Restricted Securities covered by
the Shelf Registration Statement to be listed or quoted, as the case
may be, on each securities exchange or automated quotation system on
which similar securities issued by the Issuer are then listed or
quoted.
(xix) Provide to each Holder upon written request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective
date of the Shelf Registration Statement.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "Suspension Notice") from the
Issuer of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will, and will use its reasonable best efforts
to cause any underwriter(s) in an Underwritten Offering to, forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement until:
(i) such Holder has received copies of the supplemented
or amended Prospectus contemplated by Section 4(b)(xiii) hereof;
or
(ii) such Holder is advised in writing by the Issuer that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by
reference in the Prospectus.
If so directed by the Issuer, each Holder will deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Upon the effectiveness of the Shelf Registration Statement,
each Holder shall notify the Issuer at least three Business Days prior to any
intended distribution of Transfer Restricted Securities pursuant to the Shelf
Registration Statement (a "Sale Notice"), which notice shall be effective for
five Business Days. Each Holder of Transfer Restricted Securities, by accepting
the same, agrees to hold any communication by the Company in response to a Sale
Notice in confidence.
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5. REGISTRATION EXPENSES.
(a) All expenses incident to the Issuer's performance of or
compliance with this Agreement shall be borne by the Issuer regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses
(including filings made by any Initial Purchaser or Holders with
the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Debentures) and the Issuer's expenses for
messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Issuer and,
subject to Section 5(b) below, the Holders of Transfer Restricted
Securities;
(v) all application and filing fees in connection with
listing (or authorizing for quotation) the Common Stock on a
national securities exchange or automated quotation system pursuant
to the requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Issuer (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Issuer shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Issuer.
(b) In connection with the Shelf Registration Statement required
by this Agreement, including any amendment or supplement thereto, and any other
documents delivered to any Holders, the Issuer shall reimburse the Initial
Purchaser and the Holders of Transfer Restricted Securities being registered
pursuant to the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, which shall be Simpson
Thacher & Bartlett, or such other counsel as may be chosen by a Majority of
Holders for whose benefit the Shelf Registration Statement is being prepared.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Issuer shall indemnify and hold harmless each Holder, such
Holder's officers and employees and each person, if any, who controls such
Holder within the meaning of the Securities Act (each, an "Indemnified Holder"),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to resales of the Transfer Restricted
Securities), to
14
which such Indemnified Holder may become subject, insofar as any such loss,
claim, damage, liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a material
fact contained in (A) the Shelf Registration Statement or Prospectus or
any amendment or supplement thereto or (B) any blue sky application or
other document or any amendment or supplement thereto prepared or executed
by the Issuer (or based upon written information furnished by or on behalf
of the Issuer expressly for use in such blue sky application or other
document or amendment on supplement) filed in any jurisdiction
specifically for the purpose of qualifying any or all of the Transfer
Restricted Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a
"Blue Sky Application"); or
(ii) the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; PROVIDED,
HOWEVER, that the Issuer shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in the Shelf Registration Statement or Prospectus or amendment or
supplement thereto or Blue Sky Application in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf of any Holder
(or its related Indemnified Holder) specifically for use therein, provided,
further, that the Issuer shall not be liable for any loss, liability, claim,
damage or expense (1) arising from an offer or sale of Transfer Restricted
Securities occurring during a Suspension Period, provided the Holder has
received a Suspension Notice with respect to such Suspension Period, or (2) if
the Holder fails to deliver at or prior to the written confirmation of sale, a
Prospectus that is amended or supplemented, and such Prospectus, as amended or
supplemented, would have corrected the untrue statement or omission or alleged
untrue statement or omission of a material fact contained in the Prospectus
delivered by the Holder, so long as the Prospectus, as amended or supplemented,
has been delivered to such Holder prior to such time. The foregoing indemnity
agreement is in addition to any liability which the Issuer may otherwise have to
any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and
hold harmless the Issuer, its officers and employees and each person, if any,
who controls the Issuer within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Issuer or any such officer, employee or
controlling person may become subject, insofar as any such loss, claim, damage
or liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or Prospectus
or any amendment or supplement thereto or any Blue Sky Application; or
15
(ii) the omission or the alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein,
and shall reimburse the Issuer and any such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Issuer or any such officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Holder may
otherwise have to the Issuer and any such officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, PROVIDED, FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Holders shall have the right to employ one separate firm to represent
jointly the Holders and their officers, employees and controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Holders against the Issuer under this Section 6
if, in the reasonable judgment of the Holders seeking indemnification, it is
advisable for the Holders and such officers, employees and controlling persons
to be jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Issuer. No indemnifying
party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or
16
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and
against any loss of liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer from the offering and sale of the Transfer
Restricted Securities on the one hand and a Holder with respect to the
sale by such Holder of the Transfer Restricted Securities on the other, or
(ii) if the allocation provided by clause (6)(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 6(d)(i) but also the
relative fault of the Issuer on the one hand and the Holders on the other
in connection with the statements or omissions or alleged statements or
alleged omissions that resulted in such loss, claim, damage or liability
(or action in respect thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Issuer on the one hand and a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Debentures
purchased under the Purchase Agreement (before deducting expenses) received by
the Issuer, on the one hand, bear to the total net gain received by such Holder
with respect to its sale of Transfer Restricted Securities on the other. The
relative fault of the parties shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuer
on the one hand or the Holders on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Issuer and each Holder agree that it would not
be just and equitable if the amount of contribution pursuant to this Section
6(d) were determined by PRO RATA allocation or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph (d). The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section 6 shall be deemed to
include, for purposes of this Section 6, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
or preparing to defend any such action or claim. Notwithstanding the provisions
of this Section 6, no Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Transfer Restricted
Securities purchased by it were resold exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of any untrue or
alleged untrue statement or
17
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
7. RULE 144A. In the event the Issuer is not subject to Section
13 or 15(d) of the Exchange Act, the Issuer hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting
arrangements.
9. SELECTION OF UNDERWRITERS. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering if approved
by the Issuer as provided in Section 4(b)(ii). In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by a Majority of Holders
whose Transfer Restricted Securities are included in such offering; PROVIDED,
that such investment bankers and managers must be reasonably satisfactory to the
Issuer.
10. MISCELLANEOUS.
(a) REMEDIES. The Issuer acknowledges and agrees that any failure
by the Issuer to comply with its obligations under Section 2 hereof may result
in material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Issuer's obligations under Section 2 hereof. The Issuer
further agrees to waive the defense in any action for specific performance that
a remedy at law would be adequate.
(b) INTENTIONALLY OMITTED.
(c) NO INCONSISTENT AGREEMENTS. The Issuer will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with
18
the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. In addition, the Issuer shall not grant to any of its
security holders (other than the Holders of Transfer Restricted Securities in
such capacity) the right to include any of its securities in the Shelf
Registration Statement provided for in this Agreement other than the Transfer
Restricted Securities. The Issuer has not previously entered into any agreement
(which has not expired or been terminated) granting any registration rights with
respect to its securities to any Person which rights conflict with the
provisions hereof.
(d) AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Issuer has obtained the written
consent of a Majority of Holders.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the registrar under the Indenture or the transfer
agent of the Common Stock, as the case may be; and
(ii) if to the Issuer:
Cendant Corporation
9 West 57th Street
New York, New York 10019
Attention: Eric J. Bock, Esq.
Fax (212) 413-1923
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Vincent J. Pisano, Esq.
Fax (917)-777-2718
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; PROVIDED,
HOWEVER, that (i) this Agreement shall not inure to the benefit of or be
19
binding upon a successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from such Holder and
(ii) nothing contained herein shall be deemed to permit any assignment, transfer
or other disposition of Transfer Restricted Securities in violation of the terms
of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Transfer Restricted Securities, in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Transfer Restricted Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) SECURITIES HELD BY THE ISSUER OR THEIR AFFILIATES. Whenever
the consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities held
by the Issuer or its "affiliates" (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(i) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(k) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuer with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
CENDANT CORPORATION
By______________________________
NAME:
TITLE:
LEHMAN BROTHERS INC.
By_____________________________
AUTHORIZED REPRESENTATIVE
EXHIBIT A
CENDANT CORPORATION
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of Zero Coupon Senior Convertible Debt
Securities (CODESSM) due 2021 (the "Debentures") of Cendant Corporation (the
"Issuer"), or CD common stock, par value $.01 per share (the "Shares" and
together with the Debentures, the "Transfer Restricted Securities") of the
Issuer understands that the Issuer has filed, or intends to file, with the
Securities and Exchange Commission (the "Commission") a registration statement
(the "Shelf Registration Statement"), for the registration and resale under Rule
415 of the Securities Act of 1933, as amended (the "Securities Act"), of the
Transfer Restricted Securities in accordance with the terms of the Registration
Rights Agreement, dated as of February 13, 2001 (the "Registration Rights
Agreement") between the Issuer and Lehman Brothers Inc. A copy of the
Registration Rights Agreement is available from the Issuer upon request at the
address set forth below. All capitalized terms not otherwise defined herein have
the meaning ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Transfer Restricted Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Transfer Restricted Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Transfer Restricted Securities generally will
be required to be named as a selling securityholder in the related Prospectus,
deliver a Prospectus to purchasers of Transfer Restricted Securities and be
bound by those provisions of the Registration Rights Agreement applicable to
such beneficial owner (including certain indemnification provisions, as
described below). BENEFICIAL OWNERS THAT DO NOT COMPLETE THIS NOTICE AND
QUESTIONNAIRE WITHIN 20 BUSINESS DAYS OF RECEIPT HEREOF AND DELIVER IT TO THE
ISSUER AS PROVIDED BELOW WILL NOT BE NAMED AS SELLING SECURITYHOLDERS IN THE
PROSPECTUS AND THEREFORE WILL NOT BE PERMITTED TO SELL ANY TRANSFER RESTRICTED
SECURITIES PURSUANT TO THE SHELF REGISTRATION STATEMENT.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus.
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NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Transfer Restricted Securities hereby gives notice to the Issuer of its
intention to sell or otherwise dispose of Transfer Restricted Securities
beneficially owned by it and listed below in Item 3 (unless otherwise specified
under Item 3) pursuant to the Shelf Registration Statement. The undersigned, by
signing and returning this Notice and Questionnaire, understands that it will be
bound by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed
to indemnify and hold harmless the Issuer, the Issuer's directors, the Issuer's
officers who sign the Shelf Registration Statement and each person, if any, who
controls the Issuer within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against certain losses arising
in connection with statements concerning the undersigned made in the Shelf
Registration Statement or the related Prospectus in reliance upon the
information provided in this Notice and Questionnaire.
The undersigned hereby provides the following information to the Issuer
and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. (a) Full legal name of Selling Securityholder:
(b) Full legal name of registered holder (if not the same as (a) above)
through which Transfer Restricted Securities listed in Item (3)
below are held:
(c) Full legal name of DTC participant (if applicable and if not the
same as (b) above) through which Transfer Restricted Securities
listed in Item (3) are held:
2. Address for notices to Selling Securityholders:
Telephone:
Fax:
Contact Person:
3. Beneficial ownership of Transfer Restricted Securities:
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(a) Type of Transfer Restricted Securities beneficially owned, and
principal amount of Debentures or number of shares of Common Stock,
as the case may be, beneficially owned:
(b) CUSIP No(s). of such Transfer Restricted Securities beneficially
owned:
4. Beneficial ownership of the Issuer's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Issuer other than
the Transfer Restricted Securities listed above in Item (3) ("Other
Securities").
(a) Type and amount of Other Securities beneficially owned by the
Selling Securityholder:
(b) CUSIP No(s). of such Other Securities beneficially owned:
4. Relationship with the Issuer
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship
with the Issuer (or their predecessors or affiliates) during the past
three years.
State any exceptions here:
6. Plan of Distribution
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities listed
above in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all). Such Transfer Restricted Securities may be sold from
time to time directly by the undersigned or, alternatively, through
underwriters, broker-dealers or agents. If the Transfer Restricted
Securities are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Transfer Restricted Securities
may be sold in one or more transactions at fixed prices, at prevailing
market prices at the time of sale, at varying prices determined at the
time of sale, or at
A-3
negotiated prices. Such sales may be effected in transactions (which may
involve crosses or block transactions):
(i) on any national securities exchange or quotation service
on which the Transfer Restricted Securities may be listed or
quoted at the time of sale;
(ii) in the over-the-counter market;
(iii) in transactions otherwise than on such exchanges or
services or in the over-the-counter market; or
(iv) through the writing of options.
In connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Transfer
Restricted Securities and deliver Transfer Restricted Securities to close
out such short positions, or loan or pledge Transfer Restricted Securities
to broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Transfer Restricted Securities without the prior
agreement of the Issuer.
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Exchange Act and the rules and regulations
promulgated thereunder relating to stock manipulation, particularly Regulation M
thereunder (or any successor rules or regulations), in connection with any
offering of Transfer Restricted Securities pursuant to the Shelf Registration
Statement. The undersigned agrees that neither it nor any person acting on its
behalf will engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein.
Pursuant to the Registration Rights Agreement, the Issuer has agreed under
certain circumstances to indemnify the Selling Securityholders against certain
liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Issuer of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
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the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related Prospectus. The undersigned understands that such information will be
relied upon by the Issuer in connection with the preparation or amendment of the
Shelf Registration Statement and the related Prospectus.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
Beneficial Owner
By: ________________________________
Name:
Title:
Please return the completed and executed Notice and Questionnaire to Cendant
Corporation at:
Cendant Corporation
9 West 57th Street
New York, New York 10019
Attention: James E. Buckman, Esq.
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