Registration No. 333-34517-2
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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POST-EFFECTIVE AMENDMENT NO. 2
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
CENDANT CORPORATION**
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
06-0918165
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(I.R.S. Employer Identification No.)
6 Sylvan Way, Parsippany, New Jersey 07054
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(Address of Principal Executive Offices) (Zip Code)
CENDANT CORPORATION 1997 EMPLOYEE STOCK PLAN
HFS INCORPORATED 1992 INCENTIVE STOCK OPTION PLAN
HFS INCORPORATED AMENDED AND RESTATED 1993 STOCK OPTION PLAN
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(Full Title of the Plan)
JAMES E. BUCKMAN, ESQ.
Senior Executive Vice President and General Counsel
Cendant Corporation
6 Sylvan Way
Parsippany, New Jersey 07054
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(Name and Address of Agent For Service)
(973) 428-9700
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Telephone Number, Including Area Code, of Agent For Service.
Copies to:
ERIC J. BOCK, ESQ
Vice President
Cendant Corporation
6 Sylvan Way
Parsippany, New Jersey 07054
(Calculation of Registration Fee on Next Page)
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* Filed as a Post-Effective Amendment on Form S-8 to such
Registration Statement pursuant to the procedure described herein.
See "Explanatory Note."
** At the effective time of the Merger described in the Explanatory
Note, CUC International Inc. changed its name to "Cendant
Corporation."
CALCULATION OF REGISTRATION FEE
PROPOSED
TITLE OF PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PRICE PER SHARE PRICE REGISTRATION FEE
COMMON STOCK,
$.01 PAR VALUE 92,474,386 N/A*** N/A*** N/A***
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*** Fee previously paid.
EXPLANATORY NOTE
Cendant Corporation (the "Company") hereby amends its
Registration Statement on Form S-4 (No. 333-34517), declared effective on
August 28, 1997 and amended by Post-Effective Amendment No. 1, filed on
December 17, 1997 (as so amended, the "S-4"), by filing this
Post-Effective Amendment No. 2 on Form S-8 relating to up to 92,474,386
shares of common stock, $.01 par value per share, of the Company
("Company Common Stock") issuable upon the exercise of options to acquire
or receive shares of Company Common Stock pursuant to the provisions of
(i) the HFS Incorporated 1992 Incentive Stock Option Plan (the "1992
Plan") and the HFS Incorporated Amended and Restated 1993 Stock Option
Plan (the "1993 Plan," and together with the 1992 Plan, the "HFS Stock
Option Plans") which have been assumed by the Company pursuant to the
Merger Agreement defined and described below, and (ii) the Cendant
Corporation 1997 Employee Stock Plan (the "1997 Plan," together with the
HFS Stock Option Plans, the "Cendant Stock Option Plans").
At a Special Meeting of Stockholders of CUC International
Inc. ("CUC"), held on October 1, 1997, CUC's stockholders approved and
adopted an Agreement and Plan of Merger, dated as of May 27, 1997 (the
"Merger Agreement"), between HFS Incorporated ("HFS") and CUC, and the
transactions contemplated thereby. Pursuant to the Merger Agreement,
among other things, (i) HFS merged with and into CUC (the "Merger"), with
CUC continuing as the surviving corporation and changing its name to
"Cendant Corporation"; (ii) each share of common stock, par value $.01
per share, of HFS (the "HFS Common Stock") issued and outstanding
immediately prior to the effective time of the Merger (the "Effective
Time") was converted into 2.4031 shares of Company Common Stock; and
(iii) at the Effective Time, the Company assumed the HFS Stock Option
Plans (and all outstanding stock options granted thereunder).
Prior to the Effective Time, (i) stock options granted
under the 1992 Plan related to shares of HFS Common Stock, which shares
had been registered by HFS under a Registration Statement on Form S-1
(No. 33-51422); and (ii) stock options granted under the 1993 Plan
related to shares of HFS Common Stock, which shares had been registered
by HFS under a Registration Statement on Form S-8 (No. 33-83956)(as
subsequently amended by HFS in a Registration Statement on Form S-8 (No.
33- 94756) and five additional amendments thereto).
This Post-Effective Amendment relates to up to 16,344,445
shares of Company Common Stock issuable pursuant to the 1992 Plan,
64,902,225 shares of Company Common Stock issuable pursuant to the 1993
Plan and 11,209,716 shares of Company Common Stock issuable pursuant to
the 1997 Plan. When the S-4 was filed, the Company registered 504,493,633
shares of Company Common Stock (the "S-4 Registered Shares"). The S-4
Registered Shares included 94,633,439 shares of Company Common Stock
("S-4 Option Shares") anticipated to be exchanged for shares of HFS
Common Stock underlying options to acquire HFS Common Stock ("HFS
Options") in the event HFS Options were exercised after the filing of the
S-4 but prior to the Effective Time. However, because not all of the HFS
Options were exercised prior to the Effective Time, only 2,159,053 S-4
Option Shares were issued. In addition, no additional options will be
granted after the Effective Time under the HFS Stock Option Plans.
Consequently, up to 81,264,670 shares of Company Common Stock will be
issued in connection with the Company's assumption of the HFS Stock
Option Plans, and the remaining 11,209,716 of the S-4 Registered Shares
will be issued under the 1997 Plan.
The designation of this Post-Effective Amendment as
Registration No. 333-34517-2 denotes that this Post-Effective Amendment
relates only to the up to 92,474,386 shares of Company Common Stock
issuable upon exercise of options under the Cendant Stock Option Plans
and that this is the second Post-Effective Amendment to the S-4 filed but
the first Post-Effective Amendment filed with respect to such shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by the registrant, Cendant
Corporation (formerly named "CUC International Inc" and hereinafter
referred to as the "Company"), a Delaware corporation, pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference herein:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1997;
(2) The Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended April 30, 1997, July 31, 1997 and October 31, 1997,
respectively, and the Company's Current Reports on Form 8-K dated as of
February 4, 1997, February 13, 1997, February 26, 1997, March 17, 1997,
May 29, 1997, August 15, 1997, October 31, 1997 and November 4, 1997,
respectively;
(3) The Joint Proxy Statement/Prospectus of the Company
and HFS Incorporated on Schedule 14A, dated August 28, 1997; and
(4) The description of the common stock, par value $.01
per share, of the Company (the "Company Common Stock") set forth in the
Registration Statements on Form 8-A, dated July 27, 1984 and August 15,
1989 (including any amendment or report filed for the purpose of updating
such description).
The Company's consolidated statements of income,
shareholders' equity and cash flows for the three years ended January 31,
1997 and the Company's balance sheet for the year ended January 31, 1996
have not been restated to reflect the results of Hebdo Mag International
Inc., which was acquired by the Registrant in October 1997 and accounted
for as a pooling-of-interests.
All documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be
a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also
is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Eric J. Bock, Esq. has rendered an opinion on the validity
of the securities being registered under the stock option plans pursuant to
this Registration Statement. Mr. Bock is a vice president of the
Registrant. A copy of this opinion is attached as Exhibit 5.1 to this
Registration Statement. Mr. Bock holds shares of Company Common Stock and
options to acquire shares of Company Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Previously filed.(1)
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. REQUIRED 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, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
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1 See Item 20 of the S-4.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act 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 opinion of its counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing this Post-Effective Amendment on
Form S-8 to the Registration Statement (No. 333-34517) on Form S-4 and
has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Parsippany,
State of New Jersey, on this 17th day of December, 1997.
CENDANT CORPORATION
(Registrant)
By: /s/ James E. Buckman
_________________________
James E. Buckman
Senior Executive Vice
President and General Counsel
Pursuant to the requirements of the Securities Act, this
Post-Effective Amendment to the S-4 has been signed as of December 17,
1997 by the following persons in the capacities indicated.
Name Title
* Chairman of the Board of
______________________ Directors
Walter A. Forbes
*** President, Chief Executive
______________________ Officer and Director
Henry R. Silverman (Principal Executive Officer)
*** Chief Financial Officer and
______________________ Director (Principal Financial
Michael P. Monaco and Accounting Officer)
*** Director
______________________
Stephen P. Holmes
*** Director
_______________________
Robert D. Kunisch
* Director
________________________
Christopher K. McLeod
* Director
________________________
E. Kirk Shelton
*** Director
_________________________
John D. Snodgrass
** Director
_________________________
Robert T. Tucker
*** Director
_________________________
James E. Buckman
* Director
__________________________
Barlett Burnap
*** Director
__________________________
Leonard S. Coleman
*** Director
__________________________
Christel DeHaan
* Director
__________________________
T. Barnes Donnelly
*** Director
__________________________
Martin L. Edelman
** Director
_________________________
Frederick D. Green
* Director
__________________________
Stephen A. Greyser
** Director
__________________________
Carole G. Hankin
*** Director
__________________________
Brian Mulroney, P.C., LL.D.
*** Director
__________________________
Robert E. Nederlander
* Director
___________________________
Burton C. Perfit
** Director
___________________________
Anthony G. Petrello
*** Director
__________________________
Robert W. Pittman
*** Director
__________________________
E. John Rosenwald, Jr.
* Director
___________________________
Robert P. Rittereiser
* Director
___________________________
Stanley M. Rumbough, Jr.
*** Director
___________________________
Leonard Schutzman
*** Director
___________________________
Robert F. Smith
** Director
___________________________
Craig R. Stapleton
* Pursuant to the Power of Attorney designated as Exhibit 24.1 hereto
and previously included as Exhibit 24 to the S-4.
By /s/ E. Kirk Shelton
______________________
E. Kirk Shelton
Attorney-in-Fact
** Pursuant to an executed Power of Attorney (which is designated as
Exhibit 24.2 hereto and previously included as Exhibit 24.1 to the
S-4):
By /s/ E. Kirk Shelton
______________________
E. Kirk Shelton
Attorney-in-Fact
*** Pursuant to an executed Power of Attorney (which is designated as
Exhibit 24.2 hereto and previously included as Exhibit 24.1 to
the S-4):
By /s/ James E. Buckman
_____________________
James E. Buckman
Attorney-in-Fact
EXHIBIT INDEX
Exhibit
Number Exhibit Description
4.1 Amended and Restated Certificate of Incorporation of the Company.
4.2 Amended and Restated By-Laws of the Company.
5.1 Opinion of Eric J. Bock, Esq. as to the legality of the shares
being issued (including consent).
15.1 Letter of Ernst & Young LLP re: Unaudited Interim Financial
Information of the Company.
23.1 Consent of Ernst & Young LLP relating to the audited financial
statements of the Company.
23.2 Consent of Deloitte & Touche LLP relating to the audited
financial statements of HFS Incorporated.
23.3 Consent of Deloitte & Touche LLP relating to the audited
financial statements of Sierra On-Line, Inc.
23.4 Consent of KPMG Peat Marwick LLP relating to the
audited financial statements of Davidson &
Associates, Inc.
23.5 Consent of Price Waterhouse LLP relating to the audited financial
statements of Ideon Group Inc.
23.6 Consent of White, Nelson & Co. LLP relating to the audited
financial statements of Century 21 Region V.
23.7 Consent of Tony H. Davidson, CPA relating to the
audited financial statements of Century 21 Real
Estate, Inc. and subsidiaries.
23.8 Consent of Coopers & Lybrand L.L.P. relating to the audited
financial statements of Coldwell Banker Corporation.
23.9 Consent of Deloitte & Touche LLP relating to the
audited financial statements of Coldwell Banker
Corporation.
23.10 Consent of Price Waterhouse LLP relating to the audited financial
statements of Avis, Inc.
23.11 Consent of Ernst & Young LLP relating to the
audited financial statements of Resort Condominiums
International, Inc.
23.12 Consent of KPMG Peat Marwick LLP relating to the
audited financial statements of PHH Corporation.
23.13 Consent of Woolard, Krajnik & Company, LLP relating to the
audited financial statements of Century 21 of Eastern
Pennsylvania, Inc.
23.14 Consent of Eric J. Bock, Esq. (included in Exhibit 5.1).
24.1 Power of Attorney.(2)
24.2 Power of Attorney.(3)
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2 Previously filed as Exhibit 24 to the S-4.
3 Previously filed as Exhibit 24.1 to the S-4.
EXHIBIT 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
CENDANT CORPORATION
The undersigned, James E. Buckman, certifies
that he is the Senior Executive Vice President and
General Counsel of Cendant Corporation, a corporation
organized and existing under the laws of the State of
Delaware (the "Corporation"), and does hereby further
certify as follows:
(1) The name of the Corporation is
Cendant Corporation.
(2) The name under which the Corporation
was originally incorporated was Comp-U-Card of
America, Inc. and the original Certificate of
Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware
on August 1, 1974.
(3) This Restated Certificate of
Incorporation was duly adopted in accordance
with the provisions of Section 245 of the
General Corporation Law of the State of
Delaware.
(4) The text of the Restated Certificate
of Incorporation of the Corporation as amended
hereby is restated to read in its entirety, as
follows:
1. The name of the Corporation is Cendant
Corporation.
2. The address of its registered office in
the State of Delaware is Corporation Trust Center, 1209
Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address
is The Corporation Trust Company.
3. The nature of the business or purposes to
be conducted or promoted is:
To engage in any lawful act or activity for which
corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of all classes
of stock which the Corporation shall have authority to
issue is 2,010,000,000 shares, of which 10,000,000 shall
be Preferred Stock, par value $.01 per share, and
2,000,000,000 shall be Common Stock, par value $.01 per
share. No stockholder shall have any preemptive right to
subscribe to or purchase any additional shares of stock
of the Corporation or any securities convertible into any
such shares or representing a right or option to purchase
any such shares.
The Board of Directors is expressly authorized
to adopt, from time to time, a resolution or resolutions
providing for the issuance of Preferred Stock in one or
more series, to fix the number of shares in each such
series (subject to the aggregate limitations thereon in
this Article) and to fix the designations and the powers,
preferences and relative, participating, optional or
other special rights, and the qualifications, limitations
and restrictions, of each such series. The authority of
the Board of Directors with respect to each such series
shall include determination of the following (which may
vary as between the different series of Preferred Stock):
a. The number of shares constituting the shares and
the distinctive designation of the series;
b. The dividend rate on the shares of the series
and the extent, if any, to which dividends thereon
shall be cumulative;
c. Whether shares of the series shall be redeemable
and, if redeemable, the redemption price payable on
redemption thereof, which price may, but need not,
vary according to the time or circumstances of such
redemption;
d. The amount or amounts payable upon the shares of
the series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation prior to any payment or distribution of
the assets of the Corporation to any class or
classes of stock of the Corporation ranking junior
to the Preferred Stock;
e. Whether the shares of the series shall be
entitled to the benefit of a sinking or retirement
fund to be applied to the purchase or redemption of
shares of the series and, if so entitled, the amount
of such fund and the manner of its application,
including the price or prices at which the shares
may be redeemed or purchased through the application
of such fund;
f. Whether the shares of the series shall be
convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the
same or any other class or classes of stock of the
Corporation, and, if so convertible or exchangeable,
the conversion price or prices, or the rates of
exchange, and the adjustments thereof, if any, at
which such conversion or exchange may be made, and
any other terms and conditions of such conversion or
exchange;
g. The extent, if any, to which the holders of
shares of the series shall be entitled to vote on
any question or in any proceedings or to be
represented at or to receive notice of any meeting
of stockholders of the Corporation;
h. Whether, and the extent to which, any of the
voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of any
such series may be made dependent upon facts
ascertainable outside of the Restated Certificate of
Incorporation or of any amendment thereto, or
outside the resolution or resolutions providing for
the issuance of such series adopted by the Board of
Directors, provided that the manner in which such
facts shall operate upon the voting powers,
designations, preferences, rights and
qualifications, limitations or restrictions of such
series is clearly and expressly set forth in the
resolution or resolutions providing for the issuance
of such series adopted by the Board of Directors;
and
i. Any other preferences, privileges and powers and
relative, participating, optional or other special
rights, and qualifications, limitations or
restrictions of such series, as the Board of
Directors may deem advisable, which shall not affect
adversely any other class or series of Preferred
Stock at the time outstanding and which shall not be
inconsistent with the provisions of this Restated
Certificate of Incorporation.
Shares of Common Stock and of Preferred Stock
may be issued from time to time as the Board of Directors
shall determine and on such terms and for such
consideration, not less than par value, as shall be fixed
by the Board of Directors. No consent by any series of
Preferred Stock shall be required for the issuance of any
other series of Preferred Stock unless the Board of
Directors in the resolution providing for the issuance of
any series of Preferred Stock expressly provides that
such consent shall be required.
Subject to the rights, if any, of holders of
shares of Preferred Stock from time to time outstanding,
dividends may be paid upon the Common Stock as and when
declared by the Board of Directors out of any funds
legally available therefor.
Except as otherwise provided by law or as
otherwise expressly provided in the resolution or
resolutions providing for the issuance of shares of any
series of the Preferred Stock, the holders of shares of
the Common Stock shall have the exclusive right to vote
for the election of directors and for all other purposes.
Each holder of shares of Common Stock of the Corporation
entitled at any time to vote shall have one vote for each
share thereof held. Except as otherwise provided with
respect to shares of Preferred Stock authorized from time
to time by the Board of Directors, the exclusive voting
power for all purposes shall be vested in the holders of
shares of Common Stock.
5. The Corporation is to have perpetual
existence.
6. In furtherance and not in limitation of
the powers conferred by statute, the Board of Directors
is expressly authorized:
a. To make, alter, or repeal the By-Laws of
the Corporation.
b. To authorize and cause to be executed
mortgages and liens upon the real and personal
property of the Corporation.
c. To set apart out of any of the funds of
the Corporation available for dividends a reserve or
reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
d. Subject to the provisions of the By-Laws,
to designate one or more committees, each committee
to consist of one or more of the directors of the
Corporation. Subject to the provisions of the By-
Laws, the Board of Directors may designate one or
more directors as alternate members of any
committee, who shall replace any absent or
disqualified member at any meeting of the committee
in the manner specified in such designation. Any
such committee, to the extent provided in the
resolution of the Board of Directors adopted in
accordance with the By-Laws of the Corporation,
shall have and may exercise all the powers and
authority of the Board of Directors in the
management of the business and affairs of the
Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may
require it; but no such committee shall have the
power or authority in reference to amending the
Restated Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending
to the stockholders a dissolution of the Corporation
or a revocation of a dissolution, or amending the
By-Laws of the Corporation; and, unless the
resolution or By-Laws expressly so provide, no such
committee shall have the power or authority to
declare a dividend or to authorize the issuance of
stock.
e. When and as authorized by the stockholders
in accordance with statute, to sell, lease, or
exchange all or substantially all of the property
and assets of the Corporation, including its
goodwill and its corporate franchises, upon such
terms and conditions and for such consideration,
which may consist in whole or in part of money or
property, including shares of stock in, and/or other
securities of, any other corporation or
corporations, as its Board of Directors shall deem
expedient and for the best interests of the
Corporation.
7. Whenever a compromise or arrangement is
proposed between this Corporation and its creditors or
any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of
any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for
this Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code, order a
meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in
number representing three-fourths in value of the
creditors or class of creditors, and/or of the
stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise
or arrangement to any reorganization of this Corporation
as consequence of such compromise or arrangement, the
said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the
stockholders or class of stockholders of this
Corporation, as the case may be, and also on this
Corporation.
8. Meetings of stockholders may be held
within or without the State of Delaware, as the By-Laws
may provide. The books of the Corporation may be kept
(subject to any provision contained in the statues)
outside the State of Delaware at such place or places as
may be designated from time to time by the Board of
Directors or in the By-Laws of the Corporation.
Elections of directors need not be by written ballot
unless the By-Laws of the Corporation shall so provide.
9. For the management of the business and for
the conduct of the affairs of the Corporation, and in
further creation, definition, limitation and regulation
of the power of the Corporation and of its directors and
of its stockholders, it is further provided:
a. Election of Directors. Elections of
Directors need not be by written ballot unless the
By-Laws of the Corporation shall so provide.
b. Number, Election and Terms of Directors.
The number of Directors of the Corporation shall be
fixed from time to time by or pursuant to the By-
Laws. The Directors shall be classified, with
respect to the time for which they severally hold
office, into three classes, as nearly equal in
number as possible, as shall be provided in the
manner specified in the By-Laws, one class to hold
office initially for a term expiring at the annual
meeting of stockholders to be held in 1986, another
class to hold office initially for a term expiring
at the annual meeting of stockholders to be held in
1987, and another class to hold office initially for
a term expiring at the annual meeting of
stockholders to be held in 1988, with the members of
each class to hold office until their successors are
elected and qualified. At each annual meeting of
the stockholders of the Corporation, the successors
to the class of Directors whose term expires at that
meeting shall be elected to the office for a term
expiring at the annual meeting of stockholders held
in the third year following the year of their
election.
c. Stockholder Nomination of Director
Candidates. Advance notice of nominations for the
election of Directors, other than by the Board of
Directors or a Committee thereof, shall be given in
the manner provided in the By-Laws.
d. Newly Created Directorships and Vacancies.
Newly created directorships resulting from any
increase in the number of Directors and any
vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or
other cause shall be filled solely by the
affirmative vote of a majority of the remaining
Directors then in office, even though less than a
quorum of the Board of Directors. Any Director
elected in accordance with the preceding sentence
shall hold office for the remainder of the full term
of the class of Directors for which the new
directorship was created or the vacancy occurred and
until such Director's successor shall have become
elected and qualified. No decrease in the number of
Directors constituting the Board of Directors shall
shorten the term of any incumbent Director.
e. Removal of Directors. Any Director may be
removed from office without cause only by the
affirmative vote of the holders of 80% of the
combined voting power of the then outstanding shares
of stock entitled to vote generally in the election
of Directors voting together as a single class.
f. Stockholder Action. Any action required
or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual
or special meeting of such holders and may not be
effected by any consent in writing by such holders.
Except as otherwise required by law, special
meetings of stockholders of the Corporation may be
called only by the Chairman of the Board, the
President or the Board of Directors pursuant to a
resolution approved by a majority of the entire
Board or Directors.
g. By-Law Amendments. The Board of Directors
shall have power to make, alter, amend and repeal
the By-Laws (except so far as the By-Laws adopted by
the stockholders shall otherwise provide). Any By-
Laws made by the Directors under the powers
conferred hereby may be altered, amended or repealed
by the Directors or by the stockholders.
Notwithstanding the foregoing and anything contained
in this Restated Certificate of Incorporation to the
contrary, Sections 1, 2 and 3 of Article II, and
Sections 1, 2 and 3 of Article III of the By-Laws
shall not be altered, amended or repealed and no
provision inconsistent therewith shall be adopted
without the affirmative vote of the holders of at
least 80% of the voting power of all the shares of
the Corporation entitled to vote generally in the
election of Directors, voting together as a single
class.
h. Amendment, Repeal. Notwithstanding
anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote
of the holders of at least 80% of the voting power
of all shares of the Corporation entitled to vote
generally in the election of Directors, voting
together as a single class, shall be required to
alter, amend, adopt any provision inconsistent with,
or repeal, this Article 9 or any provision hereof.
10. a. Vote Required for Certain Business
Combinations.
A. Higher Vote for Certain Business
Combinations. In addition to any affirmative vote
required by law or this Restated Certificate of
Incorporation, and except as otherwise expressly
provided herein:
(1) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter
defined) with (a) any Interested Stockholder
(as hereinafter defined) or (b) any other
corporation (whether or not itself an
Interested Stockholder) which is, or after such
merger or consolidation would be, an Affiliate
(as hereinafter defined) of an Interested
Stockholder; or
(2) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one
transaction or a series of transactions) to or
with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any
assets of the Corporation or any Subsidiary
having an aggregate Fair Market Value of $10
million or more; or
(3) the issuance or transfer by the
Corporation or any Subsidiary (in one
transaction or series of transactions) of any
securities of the Corporation or any subsidiary
to any Interested Stockholder or to any
Affiliate of any Interested Stockholder in
exchange for cash, securities or other property
(or a combination thereof) having an aggregate
Fair Market Value of $10 million or more; or
(4) the adoption of any plan or proposal
for the liquidation or dissolution of the
Corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(5) any reclassification of securities
(including any reverse stock split), or
recapitalization of the Corporation, or any
merger or consolidation of the Corporation with
any of its Subsidiaries or any other
transaction (whether or not with or into or
otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly,
of increasing the proportionate share of the
outstanding shares of any class of Equity
Security (as hereinafter defined) of the
Corporation or any Subsidiary which is directly
or indirectly owned by any Interested
Stockholder or any Affiliate of any Interested
Stockholder;
shall require the affirmative vote of the
holders of at least 80% of the voting power of
the then outstanding shares of capital stock of
the Corporation entitled to vote generally in
the election of directors (the "Voting Stock"),
voting together as a single class (it being
understood that for the purposes of Article 10,
each share of the Voting Stock shall have one
vote). Such affirmative vote shall be required
notwithstanding the fact that no vote may be
required, or that a lesser percentage may be
specified, by law or in any agreement with any
national securities exchange or otherwise.
B. Definition of "Business Combination". The
term "Business Combination" used in this Article 10
shall mean any transaction which is referred to in
any one or more of clauses (i) through (v) of
Paragraph A hereof.
(b) When Higher Vote is Not Required. The
provisions of Article 10(a) shall not be applicable
to any particular Business Combination, and such
Business Combination shall require only such
affirmative vote as is required by law and any other
provision of this Restated Certificate of
Incorporation, if all of the conditions specified in
either of the following Paragraphs A and B are met:
A. Approval by Disinterested Directors. The
Business Combination shall have been approved by
majority of the Disinterested Directors (as
hereinafter defined).
B. Price and Procedure Requirements. All of the
following conditions shall have been met:
(i) The aggregate amount of the cash
and the Fair Market Value (as hereinafter
defined) as of the date of the consummation of
the Business Combination of consideration other
than cash to be received per share by holders
of Common Stock in such Business Combination
shall be at least equal to the higher of the
following:
(a) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any
shares of Common Stock acquired by it (1)
within the two-year period immediately prior to
the first public announcement of the terms of
the proposed Business Combination (the
"Announcement Date") or (2) in the transaction
in which it became an Interested Stockholder,
whichever is higher; and
(b) the Fair Market Value per share of
Common Stock on the Announcement Date or on the
date on which the Interested Stockholder became
an Interested Stockholder (such latter date is
referred to in this Paragraph 10 as the
"Determination Date"), whichever is higher.
(ii) The aggregate amount of the
cash and the Fair Market Value as of the date
of the consummation of the Business Combination
of consideration other than cash to be received
per share by holders of shares of any other
class of outstanding Voting Stock shall be at
least equal to the higher of the following:
(a) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any
shares of Common Stock acquired by it (1)
within the two-year period immediately prior to
the Announcement Date or (2) in the transaction
in which it became an Interested Stockholder,
whichever is higher; and
(b) the Fair Market Value per share of
such class of Voting Stock on the Announcement
Date or on the Determination Date, whichever is
higher.
(iii) The consideration to be
received by holders of Voting Stock shall be in
cash or in the same form as the Interested
Stockholder has previously paid for shares of
such class of Voting Stock. If the Interested
Stockholder has paid for any Voting Stock with
varying forms of consideration, the form of
consideration for such Voting Stock shall be
either cash or the form used to acquire the
largest number of shares of such Voting Stock
previously acquired by it. The price
determined in accordance with paragraphs B(i)
and B(ii) of this Article 10(b) shall be
subject to appropriate adjustment in the event
of any stock dividend, stock split, combination
of shares or similar event.
(iv) After such Interested
Stockholder has become an Interested
Stockholder and prior to the consummation of
such Business Combinations: (a) there shall
have been (1) no reduction in the annual rate
of dividends paid on the Common Stock (except
as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority
of the Disinterested Directors, and (2) an
increase in such annual rate of dividends as
necessary to reflect any reclassification
(including any reverse stock split),
recapitalization, reorganization or any similar
transaction which has the effect of reducing
the number of outstanding shares of the Common
Stock, unless the failure so to increase such
annual rate is approved by a majority of the
Disinterested Directors; and (b) such
Interested Stockholder shall have not become
the beneficial owner of any additional shares
of Voting Stock except as part of the
transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(c) Certain Definitions. For the purpose
of this Article 10:
A. A "person" shall mean any individual,
firm, corporation or other entity.
B. "Interested Stockholder" shall mean any
person (other than the Corporation or any
Subsidiary) who or which:
(i) is the beneficial owner,
directly or indirectly, of 5% or more of the
voting power of the outstanding Voting Stock;
or
(ii) is an Affiliate of the
Corporation and at any time within the two-year
period immediately prior to the date in
question was the beneficial owner, directly or
indirectly, of 5% or more of the voting power
of the then outstanding Voting Stock; or
(iii) is an assignee of or has
otherwise succeeded to any shares of Voting
Stock which were at any time within the two-
year period immediately prior to the date in
question beneficially owned by any Interested
Stockholder, if such assignment or succession
shall have occurred in the course of a
transaction or series of transactions not
involving a public offering within the meaning
of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of
any Voting Stock:
(i) which such person or any of its
Affiliates or Associates (as hereinafter
defined) beneficially owns directly or
indirectly; or
(ii) which such person or any of its
Affiliates or Associates has (a) the right to
acquire (whether such right is exercisable
immediately or only after the passage of time),
pursuant to any agreement, arrangement or
understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (b) the right to vote
pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned,
directly or indirectly, by any other person
with which such person or any of its Affiliates
or Associates has any agreement, arrangement or
understanding for the purpose of acquiring,
holding, voting or disposing of any shares of
Voting Stock.
D. For the purpose of determining whether a
person is an Interested Stockholder pursuant to
paragraph B of this Article 10(c), the number of
shares of Voting Stock deemed to be outstanding
shall include shares deemed owned through
application of paragraph C of the Article 10(c) but
shall not include any other shares of Voting Stock
which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or
otherwise.
E. "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on
January 1, 1985.
F. "Subsidiary" means any corporation of
which a majority of any class of Equity Security is
owned, directly or indirectly, by the Corporation,
provided, however, that for the purposes of the
definition of Interested Stockholder set forth in
paragraph B of this Article 10(c), the term
"Subsidiary" shall mean only a corporation of which
a majority of each class of Equity Security is
owned, directly or indirectly, by the Corporation.
G. "Disinterested Director" means any member
of the Board of Directors who is unaffiliated with
the Interested Stockholder and was a member of the
Board of Directors prior to the time that the
Interested Stockholder became an Interested
Stockholder, and any successor of a Disinterested
Director who is unaffiliated with the Interested
Stockholder and is recommended to succeed a
Disinterested Director by a majority of
Disinterested Directors then on the Board of
Directors.
H. "Fair Market Value" means: (i) in the
case of stock, the highest closing bid quotation
with respect to a share of such stock during the 30-
day period preceding the date in question on the
National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in
use, or, if such stock is then listed on an
exchange, the highest closing sale price during the
30-day period immediately preceding the date in
question of a share of such stock on the Composition
Tape for New York Stock Exchange -- Listed Stocks,
or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such
stock is not listed on such Exchange, on the
principal United States securities exchange
registered under the Securities Exchange Act of 1934
on which such stock is listed, or, if such stock is
not listed on any such exchange or quoted as
aforesaid, the fair market value on the date in
question of a share of such stock as determined by
the Board of Directors in good faith; and (ii) in
the case of property other than cash or stock, the
fair market value of such property on the date in
question as determined by the Board of Directors, in
good faith.
I. In the event of any Business Combination
in which the Corporation survives, the phrase
"consideration other than cash to be received" as
used in paragraphs B(i) and (ii) of Article 10(b)
shall include the shares of Common Stock retained by
the holders of such shares.
J. "Equity Security" shall have the meaning
ascribed to such term in Section 3(a)(11) of the
Securities Exchange Act of 1934, as in effect on
January 1, 1985.
(d) Powers of the Board of Directors. A
majority of the Directors shall have the power and
duty to determine for the purposes of this Article
10 on the basis of information known to them after
reasonable inquiry, (A) whether a person is an
Interested Stockholder, (B) the number of shares of
Common Stock beneficially owned by any person, (C)
whether a person is an Affiliate or Associate of
another (D) whether the assets which are the subject
of any Business Combination have, or the
consideration to be received for an issuance of
transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, or an
issuance or transfer of securities by the
Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of
$10 million or more. A majority of the Directors
shall have the further power to interpret all of the
terms and provisions of this Article 10.
(e) No Effect on Fiduciary Obligations of
Interested Shareholders. Nothing contained in this
Article 10 shall be construed to relieve any
Interested Stockholder from any fiduciary obligation
imposed by law.
(f) Amendment, Repeal, etc.
Notwithstanding any other provisions of this
Restated Certificate of Incorporation or the By-Laws
(and notwithstanding the fact that a lesser
percentage may be specified by law, this Restated
Certificate of Incorporation or the By-Laws) the
affirmative vote of the holders of 80% or more of
the outstanding Voting Stock, voting together as a
single class, shall be required to amend or repeal,
or adopt any provisions inconsistent with this
Article 10.
11. No director of the Corporation shall be
personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty by such
director as a director; provided, however, that this
Article 11 shall not eliminate or limit the liability of
a director to the extent provided by applicable law (i)
for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under
section 174 of the General Corporation Law of the State
of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. No
amendment to or repeal of this Article 11 shall apply to
or have any effect on the liability or alleged liability
of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to
such amendment or repeal.
IN WITNESS WHEREOF, the Corporation has caused
this Restated Certificate of Incorporation to be executed
this 17th day of December, 1997.
CENDANT CORPORATION
By: /s/ James E. Buckman
______________________
Name: James E. Buckman
Title: Senior Executive
Vice President and
General Counsel
EXHIBIT 4.2
AMENDED AND RESTATED BY-LAWS
OF
CENDANT CORPORATION
(the "Corporation")
ARTICLE I
OFFICES
SECTION 1.
The registered office of the Corporation in the State of
Delaware shall be in the City of Wilmington, County of New
Castle, State of Delaware.
The Corporation shall have offices at such other places as
the Board of Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS
SECTION 1. Annual Meeting.
The annual meeting of the stockholders for the election of
Directors and for the transaction of such other business as may
properly come before the meeting shall be held at such place,
within or without the State of Delaware, and hour as shall be
determined by the Board of Directors. The day, place and hour of
each annual meeting shall be specified in the notice of annual
meeting.
The meeting may be adjourned from time to time and place to
place until its business is completed.
At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by
or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation,
not less than sixty days nor more than ninety days prior to the
meeting; provided, however, that in the event that less than
seventy days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the
close of business on the tenth day following the date on which
such notice of the date of the annual meeting was mailed or such
public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting: (a) a brief
description of the business desired to be brought before the
annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business,
(c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material
interest of the stockholder in such business. Notwithstanding
anything in the By-Laws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the
procedures set forth in this Section 1. The presiding officer of
an annual meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this
Section 1, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the
meeting shall not be transacted.
SECTION 2. Special Meeting.
Except as otherwise required by law, special meetings of the
stockholders may be called only by the Chairman of the Board, the
President, or the Board of Directors pursuant to a resolution
approved by a majority of the entire Board of Directors.
SECTION 3. Stockholder Action; How Taken.
Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called
annual or special meeting of such holders and may not be effected
by any consent in writing by such holders.
SECTION 4. Notice of Meeting.
Notice of every meeting of the stockholders shall be given
in the manner prescribed by law.
SECTION 5. Quorum.
Except as otherwise required by law, the Certificate of
Incorporation or these By-Laws, the holders of not less than
one-third of the shares entitled to vote at any meeting of the
stockholders, present in person or by proxy, shall constitute a
quorum and the act of the majority of such quorum shall be deemed
the act of the stockholders.
If a quorum shall fail to attend any meeting, the chairman
of the meeting may adjourn the meeting to another place, date or
time.
If a notice of any adjourned special meeting of stockholders
is sent to all stockholders entitled to vote thereat, stating
that it will be held with those present constituting a quorum,
then, except as otherwise required by law, those present at such
adjourned meeting shall constitute a quorum and all matters shall
be determined by a majority of votes cast at such meeting.
SECTION 6. Qualification of Voters.
The Board of Directors (hereinafter sometimes referred to as
the "Board") may fix a day and hour not more than sixty nor less
than ten days prior to the day of holding any meeting of the
stockholders as the time which the stockholders entitled to
notice of and to vote at such meeting shall be determined. Only
those persons who were holders of record of voting stock at such
time shall be entitled to notice of and to vote at such meeting.
SECTION 7. Procedure.
The order of business and all other matters of procedure at
every meeting of the stockholders may be determined by the
presiding officer.
The Board shall appoint two or more Inspectors of Election
to serve at every meeting of the stockholders at which Directors
are to be elected.
ARTICLE III
DIRECTORS
SECTION 1. Number, Election and Terms.
The number of Directors shall be fixed from time to time by
the Board of Directors but shall not be less than three. The
Directors shall be classified, with respect to the time for which
they severally hold office, into three classes, as nearly equal
in number as possible, as determined by the Board of Directors,
one class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1986, another class
to hold office initially for a term expiring at the annual
meeting of stockholders to be held in 1987, and another class to
hold office initially for a term expiring at the annual meeting
of stockholders to be held in 1988, with the members of each
class to hold office until their successors are elected and
qualified. At each annual meeting of stockholders, the successors
of the class of Directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year
of their election.
The term "entire Board" as used in these By-Laws means the
total number of Directors which the Corporation would have if
there were no vacancies.
Nominations for the election of Directors may be made by the
Board of Directors or a committee appointed by the Board of
Directors or by any stockholder entitled to vote in the election
of Directors generally. However, any stockholder entitled to vote
in the election of Directors generally may nominate one or more
persons for election as Directors at a meeting only if written
notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the
Corporation not later than (i) with respect to an election to be
held at an annual meeting of stockholders, ninety days prior to
the anniversary date of the immediately preceding annual meeting,
and (ii) with respect to an election to be held at a special
meeting of stockholders for the election of Directors, the close
of business on the tenth day following the date on which notice
of such meeting is first given to stockholders. Each such notice
shall set forth: (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons to be
nominated; (b) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d)
such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission; and (e) the consent of each nominee to serve
as a Director of the Corporation of so elected. The presiding
officer of the meeting may refuse to acknowledge the nomination
of any person not made in compliance with the foregoing
procedure.
SECTION 2. Newly Created Directorships and Vacancies.
Newly created directorships resulting from any increase in
the number of Directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification,
removal or other cause shall be filled solely by the affirmative
vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board of Directors. Any
Directors elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of
Directors in which the new directorship was created or the
vacancy occurred and until such Director's successor shall have
been elected and qualified. No decrease in the number of
Directors constituting the Board of Directors shall shorten the
term of any incumbent Director.
SECTION 3. Removal.
Any Director may be removed from office, without cause, only
by the affirmative vote of the holders of 80% of the combined
voting power of the then outstanding shares of stock entitled to
vote generally in the election of Directors, voting together as a
single class.
SECTION 4. Regular Meetings.
Regular meetings of the Board shall be held at such times
and places as the Board may from time to time determine.
SECTION 5. Special Meetings.
Special meetings of the Board may be called at any time, at
any place and for any purpose by the Chairman of the Executive
Committee, the Chairman of the Board, or the President, or by any
officer of the Corporation upon the request of a majority of the
entire Board.
SECTION 6. Notice of Meeting.
Notice of regular meetings of the Board need not be given.
Notice of every special meeting of the Board shall be given
to each Director at his usual place of business, or at such other
address as shall have been furnished by him for the purpose. Such
notice shall be given at least twenty-four hours before the
meeting by telephone or by being personally delivered, mailed, or
telegraphed. Such notice need not include a statement of the
business to be transacted at, or the purpose of, any such
meeting.
SECTION 7. Quorum.
Except as may be otherwise provided by law or in these
By-Laws, the presence of a majority of the entire Board shall be
necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board, and the act
of a majority of such quorum shall be deemed the act of the
Board, except as otherwise provided in the By-Laws and except
that, until the third anniversary of the effective time of the
merger (the "Effective Time") contemplated in the Agreement and
Plan of Merger, dated as of May 27, 1997 (the "Merger
Agreement"), between the Corporation and HFS, a Delaware
corporation, the affirmative vote of 80% of the entire Board
shall be required to change the size of the Board of Directors or
for the Board to amend or modify, or adopt any provision
inconsistent with, or repeal this Section 7.
Less than a quorum may adjourn any meeting of the Board from
time to time without notice.
SECTION 8. Participation In Meetings By Conference Telephone.
Members of the Board, or of any committee thereof, may
participate in a meeting of such Board or committee by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other and such participation shall constitute presence in person
at such meeting.
SECTION 9. Powers.
The business, property and affairs of the Corporation shall
be managed by or under the direction of its Board of Directors,
which shall have and may exercise all the powers of the
Corporation to do all such lawful acts and things as are not by
law, or by the Certificate of Incorporation, or by these By-Laws,
directed or required to be exercised or done by the stockholders.
SECTION 10. Compensation of Directors.
Directors shall receive such compensation for their services
as shall be determined by a majority of the entire Board provided
that Directors who are serving the Corporation as officers or
employees and who receive compensation for their services as such
officers or employers shall not receive any salary or other
compensation for their services as Directors.
ARTICLE IV
OFFICERS
SECTION 1. Number.
(a) General. The officers of the Corporation shall be
appointed or elected (i) in the manner set forth in this Article
IV and (ii) to the extent not so set forth, by the Board of
Directors. The officers shall be a Chairman of the Board, a
President and Chief Executive Officer, one or more Vice Chairmen
of the Board, a Chief Financial Officer, a General Counsel, such
number of vice presidents as the Board may from time to time
determine and a Secretary. The Chairman of the Board or, in his
absence or if such office be vacant, the President, shall preside
at all meetings of the stockholders and of the Board. In the
absence of the Chairman of the Board and the President, a Vice
Chairman of the Board shall preside at all meetings of the
stockholders and of the Board. Any person may hold two or more
offices, other than the offices of Chairman of the Board and Vice
Chairman of the Board, at the same time. Subject to this Section
1, the Chairman of the Board and the Vice Chairmen of the Board
shall be chosen from among the Board of Directors, but the other
officers need not be members of the Board.
(b) Chairman of the Board. The Chairman of the Board shall
be a member of the Board of Directors and shall be an officer of
the Corporation. Mr. Forbes will be Chairman of the Board from
and after the Effective Time and until January 1, 2000, at which
time Mr. Silverman will be Chairman of the Board. If, for any
reason Mr. Forbes ceases to serve as Chairman of the Board prior
to January 1, 2000 and at such time Mr. Silverman is President
and Chief Executive Officer, Mr. Silverman shall become Chairman
of the Board.
(c) President and Chief Executive Officer. The President
and Chief Executive Officer shall be a member of the Board of
Directors and an officer of the Corporation. The President and
Chief Executive Officer shall be the chief executive officer of
the Corporation and shall supervise, coordinate and manage the
Corporation's business and activities and supervise, coordinate
and manage its operating expenses and capital allocation, shall
have general authority to exercise all the powers necessary for
the President and Chief Executive Officer of the Corporation and
shall perform such other duties and have such other powers as may
be prescribed by the Board or these By-laws, all in accordance
with basic policies as established by and subject to the
oversight of the Board. In the absence or disability of the
Chairman of the Board, the duties of the Chairman of the Board
shall be performed and the Chairman of the Board's authority may
be exercised by the President and Chief Executive Officer. Mr.
Silverman will be President and Chief Executive Officer from and
after the Effective Time and until January 1, 2000, at which time
Mr. Forbes will be President and Chief Executive Officer. If, for
any reason Mr. Silverman ceases to serve as President and Chief
Executive Officer prior to January 1, 2000 and at such time Mr.
Forbes is Chairman of the Board, Mr. Forbes shall become
President and Chief Executive Officer.
(d) Chief Financial Officer. The Chief Financial Officer
shall have responsibility for the financial affairs of the
Corporation and shall exercise supervisory responsibility for the
performance of the duties of the Treasurer and the Controller.
The Chief Financial Officer shall perform such other duties and
have such other powers as may be prescribed by the Board or these
By-laws, all in accordance with basic policies as established by
and subject to the oversight of the Board, the Chairman of the
Board and the President and Chief Executive Officer.
(e) General Counsel. The General Counsel shall have
responsibility for the legal affairs of the Corporation and for
the performance of the duties of the Secretary. The General
Counsel shall perform such other duties and have such other
powers as may be prescribed by the Board or these By-laws, all in
accordance with basic policies as established by and subject to
the oversight of the Board, the Chairman of the Board and the
President and Chief Executive Officer.
(f) Until January 1, 2002, any amendment to or modification
or repeal of, or adoption of any provision inconsistent with,
this Section 1, by the Board shall require the affirmative vote
of 80% of the entire Board.
SECTION 2. Additional Officers.
The Board may appoint such other officers, agents and
employees as it shall deem appropriate. All references in these
By-laws to a particular officer shall be deemed to refer to the
person holding such office regardless of whether such person
holds additional offices.
SECTION 3. Terms of Office.
(a) Subject to Section 1 of this Article IV and this
Section 3, all officers, agents and employees of the Corporation
shall hold their respective offices or positions at the pleasure
of the Board of Directors and may be removed at any time by the
Board of Directors with or without cause.
(b) Until January 1, 2002, the removal of Mr. Forbes or Mr.
Silverman from the positions specifically provided for in the
employment agreements between the Corporation and Mr. Forbes and
HFS and Mr. Silverman, which are expressly contemplated by
Section 5.17(b) of the Merger Agreement (including by means of a
breach of such employment agreements) shall require the
affirmative vote of 80% of the entire Board.
(c) Until January 1, 2002, any amendment to or modification
or repeal of, or the adoption of any provision inconsistent with,
this Section 3 of this Article IV by the Board or any
modification to either of the respective roles, duties or
authority of Messrs. Forbes and Silverman shall require the
affirmative vote of 80% of the entire Board.
SECTION 4. Duties.
Except as provided in Sections 1 or 3 of this Article IV,
the officers, agents and employees shall perform the duties and
exercise the powers usually incident to the offices or positions
held by them respectively, and/or such other duties and powers as
may be assigned to them from time to time by the Board of
Directors or the Chief Executive Officer.
ARTICLE V
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1. Designation.
The Board of Directors of the Corporation shall have the
following committees:
(a) An Executive Committee (which will also act as the
nominating committee) which will consist of eight Directors.
Until the third anniversary of the Effective Time, the Executive
Committee shall have the full and exclusive power and authority,
subject to Section 3(b) of this Article V, to evaluate director
candidates for election to the Board and committees of the Board,
to nominate directors for election to the Board at any annual or
special meeting of stockholders and to elect directors to fill
vacancies (x) on the Board in between stockholder meetings or (y)
on any committee of the Board (to the extent an alternate member
has not been previously designated by the Board), in each case
pursuant to Section 9(d) of the Certificate of Incorporation. By
establishing the Executive Committee, the Board shall have
delegated exclusively to the Executive Committee its authority
with respect to such matters until the third anniversary of the
Effective Time and the Board shall have no authority to nominate
or elect Directors unless this Section 1 is amended in accordance
with Section 1(d) of this Article V. Subject to the preceding two
sentences, the Executive Committee shall have and may exercise
all of the powers of the Board of Directors when the Board is not
in session, including the power to authorize the issuance of
stock, except that the Executive Committee shall have no power to
(i) alter, amend or repeal these By-Laws or any resolution or
resolutions of the Board of Directors; (ii) declare any dividend
or make any other distribution to the stockholders of the
Corporation; (iii) appoint any member of the Executive Committee;
or (iv) take any other action which legally may be taken only by
the Board. The Chairman of the Board will also serve as Chairman
of the Executive Committee. Six of the members of the Executive
Committee will, to the extent practicable, be officers of the
Corporation and the remaining members will be independent
Directors. Each resolution of the Executive Committee will
require approval by at least five members of such Committee,
provided, that, until the third anniversary of the Effective
Time, any resolution regarding the filling of a Board vacancy in
between stockholder meetings, the filling of a vacancy on any
committee of the Board or the nomination of a director for
election at any annual or special meetings of stockholders in a
manner that (l) is consistent with Section 3(b) of this Article V
will require the approval by only three members of the Executive
Committee (or only two members if there are then two vacancies on
the Executive Committee) or (2) is inconsistent with Section 3(b)
of this Article V will require approval by at least seven members
of the Executive Committee.
(b) A Compensation Committee which will consist of four
Directors. The Compensation Committee will have the following
powers and authority: (i) determining and fixing the compensation
for all senior officers of the Corporation and those of its
subsidiaries that the Compensation Committee shall from time to
time consider appropriate, as well as all employees of the
Corporation and its subsidiaries compensated at a rate in excess
of such amount per annum as may be fixed or determined from time
to time by the Board; (ii) performing the duties of the
committees of the Board provided for in any present or future
stock option, incentive compensation or employee benefit plan of
the Corporation or, if the Compensation Committee shall so
determine, any such plan of any subsidiary; and (iii) reviewing
the operations of and policies pertaining to any present or
future stock option, incentive compensation or employee benefit
plan of the Corporation or any subsidiary that the Compensation
Committee shall from time to time consider appropriate. Each
resolution of the Compensation Committee will require approval by
at least three members of such committee.
(c) An Audit Committee will consist of four Directors. The
Audit Committee will have the following powers and authority: (i)
employing independent public accountants to audit the books of
account, accounting procedures, and financial statements of the
Corporation and to perform such other duties from time to time as
the Audit Committee may prescribe; (ii) receiving the reports and
comments of the Corporation's internal auditors and of the
independent public accountants employed by the Audit Committee
and to take such action with respect thereto as may seem
appropriate; (iii) requesting the Corporation's consolidated
subsidiaries and affiliated companies to employ independent
public accountants to audit their respective books of account,
accounting procedures, and financial statements; (iv) requesting
the independent public accountants to furnish to the Compensation
Committee the certifications required under any present or future
stock option, incentive compensation or employee benefit plan of
the Corporation; (v) reviewing the adequacy of internal financial
controls; (vi) approving the accounting principles employed in
financial reporting; (vii) approving the appointment or removal
of the Corporation's general auditor; and (viii) reviewing the
accounting principles employed in financial reporting. Each
resolution of the Audit Committee will require approval by at
least three members of such committee.
(d) Until the third anniversary of the Effective Time, any
amendment to or modification or repeal of, and the adoption of
any provision inconsistent with, this Section 1 by the Board or
the designation by the Board of any additional committees, shall
require the affirmative vote of 80% of the entire Board.
SECTION 2. Meetings; Notice.
Regular meetings of committees shall be held at such times
and places as the Board or the committee in question may from
time to time determine. Special meetings of any committee may be
called at any time, at any place and for any purpose by the
Chairman of such committee, the Chairman of the Board, or the
President, or by any officer of the Corporation upon the request
of a majority of the members of such committee. Notice of regular
meetings of the committees need not be given. Notice of every
special meeting of any committee shall be given to each member at
his usual place of business, or at such other address as shall
have been furnished by him for the purpose. Such notice shall be
given at least twenty-four hours before the meeting by telephone
or by being personally delivered, mailed, or telegraphed. Such
notice need not include a statement of the business to be
transacted at, or the purpose of, any such meeting.
SECTION 3. Committee Members; Board of Director Nominations.
(a) Subject to the terms of Section 3(b) of this Article V:
(i) Each member of any committee of the Board shall
hold office until such member's successor is elected and has
qualified, unless such member sooner dies, resigns or is removed.
(ii) Until the third anniversary of the Effective
Time, the Board may remove a director from a committee or change
the chairmanship of a committee only by resolution adopted by the
affirmative vote of 80% of the entire Board.
(iii) The Board may designate one or more Directors as
alternate members of any committee to fill any vacancy on a
committee and to fill a vacant chairmanship of a committee,
occurring as a result of a member or chairman leaving the
committee, whether through death, resignation, removal or
otherwise. Any such designation may only be made or amended by
the affirmative vote of 80% of the entire Board.
(b) Until the third anniversary of the Effective Time:
(i) The members of the Executive Committee will
consist of four CUC Directors (as defined below) and four HFS
Directors (as defined below); the members of the Compensation
Committee will consist of two CUC Directors and two HFS
Directors; and the members of the Audit Committee will consist of
two CUC Directors and two HFS Directors.
(ii) If the number of CUC Directors and HFS Directors
serving, or that would be serving following the next
stockholders' meeting at which Directors are to be elected, as
Directors of the Corporation or as members of any committee of
the Board would not be equal, then, the Executive Committee shall
promptly nominate Directors for election to the Board at the next
stockholders' meeting at which Directors are to be elected to the
Board, elect Directors to fill vacancies on the Board in between
stockholders' meetings or elect Directors to fill vacancies on
any committee of the Board (to the extent an alternate member has
not previously been designated by the Board), as the case may be,
by resolution adopted in accordance with Section 1(a) of Article
V and as provided in clause (iv) of this Section 3(b).
(iii) The CUC Directors shall designate the Chairman
of the Audit Committee and the HFS Directors shall designate the
Chairman of the Compensation Committee.
(iv) Nominations of Directors for election to the
Board at any annual or special meeting of stockholders, the
election of Directors to fill vacancies on the Board in between
stockholders' meetings or the election of Directors to fill
vacancies on any committee of the Board (to the extent an
alternate member has not been previously designated by the Board)
shall be undertaken by the Executive Committee such that the
number of HFS Directors and CUC Directors on the Board or any
committee of the Board shall be equal. The term "HFS Director"
means (A) any person serving as a Director of HFS on May 27, 1997
(or any person appointed by the Board of Directors of HFS after
May 27, 1997 to fill a vacancy on the HFS Board created other
than due to an increase in the size of the Board of Directors of
HFS) who continues as a Director of CUC at the Effective Time and
(B) any person who becomes a Director of CUC and who was
designated as such by the remaining HFS Directors prior to his or
her election; and the term "CUC Director" means (A) any person
serving as a Director of CUC on May 27, 1997 (or any person
appointed by the Board of Directors of CUC after May 27, 1997 to
fill a vacancy on the CUC Board created other than due to an
increase in the size of the Board of Directors of CUC) who
continues as a Director of CUC at the Effective Time, (B) any of
the four persons designated by the CUC Directors to become a
Director of CUC at the Effective Time and (C) any person who
becomes Director of CUC and who was designated as such by the
remaining CUC Directors prior to his or her election.
SECTION 4. Amendments.
Notwithstanding anything contained in these By-Laws or the
Certificate of Incorporation to the contrary and in addition to
any other requirement set forth herein and therein, until the
third anniversary of the Effective Time, the affirmative vote of
at least 80% of the entire Board shall be required for the Board
to amend, modify or repeal, or adopt any provision inconsistent
with, the provisions of this Article V.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
SECTION 1. Power to Indemnify in Actions, Suits or Proceedings
other than Those by or in the Right of the Corporation.
Subject to Section 3 of this Article VI, the Corporation
shall 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 the Corporation) by reason of the fact that such
person is or was a director or officer of the Corporation, or is
or was a director or officer of the Corporation serving at the
request of the Corporation as a director or officer, employee or
agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against 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 if such person
acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith
and in a manner which such person reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that such person's conduct was unlawful.
SECTION 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation.
Subject to Section 3 of this Article VI, the Corporation
shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is
or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of
the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 3. Authorization of Indemnification.
Any indemnification under this Article VI (unless ordered by
a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of
the director or officer is proper in the circumstances because
such person has met the applicable standard of conduct set forth
in Section 1 or Section 2 of this Article VI, as the case may be.
Such determination shall be made (i) by a majority vote of the
Directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (ii) if there are no such
Directors, or if such Directors so direct, by independent legal
counsel in a written opinion or (iii) by the stockholders. To the
extent, however, that a director or officer of the Corporation
has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith,
without the necessity of authorization in the specific case.
SECTION 4. Good Faith Defined.
For purposes of any determination under Section 3 of this
Article VI, a person shall be deemed to have acted in good faith
and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no
reasonable cause to believe such person's conduct was unlawful,
if such person's action is based on the records or books of
account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the
Corporation or another enterprise in the course of their duties,
or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise.
The term "another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to have met
the applicable standard of conduct set forth in Section 1 or 2 of
this Article VI, as the case may be.
SECTION 5. Indemnification by a Court.
Notwithstanding any contrary determination in the specific
case under Section 3 of this Article VI, and notwithstanding the
absence of any determination thereunder, any director or officer
may apply to the Court of Chancery in the State of Delaware for
indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VI. The basis of such
indemnification by a court shall be a determination by such court
that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable
standards of conduct set forth in Section 1 or 2 of this Article
VI, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VI nor the absence
of any determination thereunder shall be a defense to such
application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant
to this Section 5 shall be given to the Corporation promptly upon
the filing of such application. If successful, in whole or in
part, the director or officer seeking indemnification shall also
be entitled to be paid the expense of prosecuting such
application.
SECTION 6. Expenses Payable in Advance.
Expenses incurred by a director or officer in defending any
civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as
authorized in this Article VI.
SECTION 7. Nonexclusivity of Indemnification and Advancement of
Expenses.
The indemnification and advancement of expenses provided by
or granted pursuant to this Article VI shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
the Certificate of Incorporation, any By-Law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to
action in such person's official capacity and as to action in
another capacity while holding such office, it being the policy
of the Corporation that indemnification of the persons specified
in Sections 1 and 2 of this Article VI shall be made to the
fullest extent permitted by law. The provisions of this Article
VI shall not be deemed to preclude the indemnification of any
person who is not specified in Section 1 or 2 of this Article VI
but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State
of Delaware, or otherwise.
SECTION 8. Insurance.
The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation
would have the power or the obligation to indemnify such person
against such liability under the provisions of this Article VI.
SECTION 9. Certain Definitions.
For purposes of this Article VI, references to "the
Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its Directors or officers,
so that any person who is or was a director or officer of such
constituent corporation, or is or was a director or officer of
such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, shall stand in the
same position under the provisions of this Article VI with
respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its
separate existence had continued. For purposes of this Article
VI, references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall
include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by,
such director or officer with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner such person reasonably believed to
be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner
"not opposed to the best interests of the Corporation" as
referred to in this Article VI.
SECTION 10. Survival of Indemnification and Advancement of
Expenses.
The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article VI shall, unless otherwise
provided when authorized or ratified, continue as to a person who
has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
SECTION 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article VI to the
contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5 hereof),
the Corporation shall not be obligated to indemnify any director
or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors of the
Corporation.
SECTION 12. Indemnification of Employees and Agents.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article VI to
Directors and officers of the Corporation.
ARTICLE VII
SEAL
SECTION 1.
The Corporate seal shall bear the name of the Corporation
and the words "Corporate Seal, Delaware."
ARTICLE VIII
AMENDMENTS
SECTION 1. Amendments of By-Laws.
Subject to the provisions of the Certificate of
Incorporation, these By-Laws may be altered, amended or repealed
at any regular meeting of the stockholders (or at any special
meeting thereof duly called for that purpose) by the vote of a
majority of the shares outstanding and entitled to vote at such
meeting; provided that in the notice of such special meeting
notice of such purpose shall be given. Subject to the laws of the
State of Delaware, the provisions of Certificate of Incorporation
and the provisions of these By-Laws (including, without
limitation, the greater vote requirement set forth in Section 7
of Article III, Sections 1 and 3 of Article IV and Sections 1 and
4 of Article V hereof), the Board of Directors may by majority
vote of those present at any meeting at which a quorum is present
amend these By-Laws, or enact such other bylaws as in their
judgment may be advisable for the regulation of the conduct of
the affairs of the Corporation.
EXHIBIT 5.1
CENDANT CORPORATION
6 Sylvan Way
Parsippany, New Jersey 07054
December 17, 1997
Cendant Corporation
6 Sylvan Way
Parsippany, New Jersey 07054
Re: Cendant Corporation Post-Effective
Amendment No. 2 on Form S-8 to the
Registration Statement on Form S-4
Ladies and Gentlemen:
I am a Vice President of Cendant Corporation, a Delaware
corporation (the "Company"), and am rendering this opinion in connection
with the Company's filing of a Post-Effective Amendment No. 2 on Form S-8
(the "Amendment") to the Registration Statement on Form S-4 (the
"Registration Statement") pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), on the date hereof with the Securities and
Exchange Commission (the "Commission"). The Company filed the Registration
Statement on August 28, 1997 in order to register shares of its common
stock, $.01 par value per share ("Company Common Stock"), in connection
with the merger (the "Merger") of HFS Incorporated ("HFS") with and into
the Company pursuant to the Agreement and Plan of Merger, dated as of May
27, 1997, between HFS and the Company (the "Merger Agreement"). The Merger
was consummated on December 17, 1997.
The Amendment relates to the registration of up to 16,344,445
shares of Company Common Stock issuable pursuant to the HFS Incorporated
1992 Incentive Stock Option Plan (the "1992 Plan"), 64,902,225 shares of
Company Common Stock issuable pursuant to the HFS Incorporated Amended and
Restated 1993 Stock Option Plan (the "1993 Plan," and together with the
1992 Plan, the "HFS Stock Option Plans") and 11,209,716 shares of Company
Common Stock issuable pursuant to the Cendant Corporation 1997 Employee
Stock Plan (collectively with the HFS Stock Option Plans, the "Cendant
Stock Option Plans") . The Company assumed the HFS Stock Option Plans
pursuant to the terms of the Merger Agreement.
This opinion is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with rendering this opinion, I have examined and am
familiar with originals or copies, certified or otherwise identified to my
satisfaction, of the following documents: (i) the Registration Statement;
(ii) the Cendant Stock Option Plans; (iii) the Amended and Restated
Certificate of Incorporation of the Company, as amended to the date hereof;
(iv) the Merger Agreement; (v) resolutions of the Board of Directors of the
Company relating to the transactions contemplated by the Merger Agreement,
the Registration Statement and the Amendment; and (vi) such other
certificates, instruments and documents as I considered necessary or
appropriate for the purposes of this opinion.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified, conformed or
photostatic copies and the authenticity of the originals of such copies. In
making my examination of documents executed by parties other than the
Company, I have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and also have
assumed the due authorization by all requisite action, corporate or other,
and execution and delivery by such parties of such documents and the
validity and binding effect thereof on such parties. As to any facts
material to the opinion expressed herein which we have not independently
established or verified, I have relied upon statements and representations
of officers and other representatives of the Company and others.
I am admitted to the Bars of the State of New York and New Jersey,
and I do not express any opinion as to the law of any jurisdiction except
for the General Corporation Law of the State of
Delaware.
Based upon and subject to the foregoing, I am of the opinion that
the shares of Company Common Stock, when issued in accordance with the
terms and conditions of the Cendant Stock Option Plans, will be validly
issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Amendment. In giving this consent, however, I do not thereby admit that I
am within the category of persons whose consent is required under Section 7
of the Securities Act and the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Eric J. Bock
Eric J. Bock
EXHIBIT 15.1
CENDANT CORPORATION
EXHIBIT 15 - LETTER RE: UNAUDITED INTERIM FINANCIAL INFORMATION
December 17, 1997
Shareholders and Board of Directors
Cendant Corporation (formerly named "CUC International Inc.")
We are aware of the incorporation by reference in the Post-Effective
Amendment No. 2 on Form S-8 (Registration Statement No. 333-34517-2), of
Cendant Corporation (formerly "CUC International Inc.") pertaining to the
HFS Incorporated 1992 Incentive Stock Option Plan and HFS Incorporated
Amended and Restated 1993 Stock Option Plan, for the registration of its
common stock of our report dated June 13, 1997 relating to the unaudited
condensed consolidated interim financial statements of CUC International
Inc. ("CUC") that was included in CUC's Quarterly Report on Form 10-Q for
the quarter ended April 30, 1997.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report is not a
part of the registration statement prepared or certified by accountants
within the meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young
Stamford, Connecticut
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Post-Effective
Amendment No. 2 on Form S-8 (Registration Statement No. 333-34517-2), of
Cendant Corporation (formerly "CUC International Inc.") pertaining to the
HFS Incorporated 1992 Incentive Stock Option Plan and HFS Incorporated
Amended and Restated 1993 Stock Option Plan of our report dated March 10,
1997, with respect to the consolidated financial statements and schedule of
CUC International Inc. included in its Annual Report (Form 10-K) for the
year ended January 31, 1997, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Stamford, Connecticut
December 17, 1997
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 on Form S-8 to Registration Statement No. 333-34517 of
Cendant Corporation on Form S-4 of our report dated March 31, 1997 (May 27,
1997 as to Note 2a, April 30, 1997 as to Note 2b) appearing in the HFS
Incorporated Current Report on Form 8-K, dated July 16, 1997, and
incorporated by reference from the Joint Proxy Statement of CUC
International Inc. and HFS Incorporated on Schedule 14A filed on August 28,
1997.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
December 16, 1997
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 on Form S-8 to Registration Statement No. 333-34517 of
Cendant Corporation on Form S-4 of our report dated June 24, 1996, relating
to the consolidated balance sheet of Sierra On-Line, Inc. and subsidiaries
for the year ended March 31, 1996 and the consolidated statements of
operations, stockholders' equity and cash flows for the two years ended
March 31, 1996, incorporated by reference from the Joint Proxy Statement of
CUC International Inc. and HFS Incorporated on Schedule 14A filed on August
28, 1997.
/s/ Deloitte & Touche LLP
Seattle, Washington
December 16, 1997
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Cendant Corporation
We consent to the incorporation by reference in the Post-Effective
Amendment on Form S-8 to Form S-4 of Cendant Corporation (formerly CUC
International Inc.) pertaining to the HFS Incorporated 1992 Incentive Stock
Option Plan/HFS Incorporated Amended and Restated 1993 Stock Option Plan,
of our report dated February 21,1996, with respect to the consolidated
balance sheet of Davidson & Associates, Inc. and subsidiaries as of
December 31, 1995 and the related consolidated statements of earnings,
shareholders' equity, and cash flows and related schedule for each of the
years in the two year period ended December 31, 1995.
/s/ KMPG Peat Marwick LLP
Long Beach, California
December 17, 1997
EXHIBIT 23.5
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Post-Effective Amendment No. 2 on Form S-8 to Form S-4 (No.
333-34517) of Cendant Corporation (formerly known as CUC International
Inc.) of our report dated February 2, 1996, relating to the consolidated
financial statements of Ideon Group, Inc., which appears in the Annual
Report on Form 10-K of CUC International Inc. for the year ended January
31, 1997.
/s/ Price Waterhouse LLP.
PRICE WATERHOUSE LLP
Tampa, Florida
December 16, 1997
EXHIBIT 23.6
INDEPENDENT AUDITORS' CONSENT
We consent of the incorporation by reference in the Post-Effective
Amendment No. 2 on Form S-8 to Registration Statement No. 333-34517 of
Cendant Corporation on Form S-4 of our report dated January 12, 1996,
related to the consolidated financial statements of Century 21 Region V
(Business Acquired by HFS Incorporated) as of and for the year ended July
31, 1995, included in the HFS Incorporated Current Report on Form 8-K, as
amended, dated February 16, 1996, and incorporated by reference in the
Joint Proxy Statement of CUC International, Inc. and HFS Incorporated on
Schedule 14A filed on August 28, 1997.
/s/ White, Nelson & Co.
Anaheim, California
December 16, 1997
EXHIBIT 23.7
INDEPENDENT AUDITOR'S CONSENT
I consent to the incorporation by reference in this Post-Effective
Amendment No. 2 on Form S-8 to Registration Statement No. 333-34517 of
Cendant Corporation on form S-4 of my report dated September 25, 1995
related to the consolidated balance sheet of Century 21 Real Estate, Inc.
and subsidiaries as of July 31, 1995, 1994 and 1993 and the related
statements of income and retained earnings and cash flows for the years
then ended included in the HFS Incorporated Current Report on Form 8-K, as
amended, dated February 16, 1996 and incorporated by reference in the Joint
Proxy Statement of CUC International, Inc. and HFS Incorporated on Schedule
14A filed on August 28, 1997.
/s/ Tony H. Davidson, CPA
Lake Oswego, Oregon
December 16, 1997
EXHIBIT 23.8
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 Registration Statement of Cendant Corporation Inc. on Form
S-8 of our report dated February 27, 1996 related to the consolidated
financial statements of Coldwell Banker Corporation and Subsidiaries as of
December 31, 1995 and 1994, and for each of the two years in the period
ended December 31, 1995, incorporated by reference in the Registration
Statement of CUC International Inc. on Form S-4, dated August 28, 1997, and
included in the HFS Incorporated Current Report on Form 8-K dated May 8,
1996, as amended by Form 8-K/A dated March 27, 1997.
/s/ Coopers & Lybrand L.L.P.
Newport Beach, California
December 15, 1997
EXHIBIT 23.9
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 on Form S-8 to Registration Statement No. 333-34517 of
Cendant Corporation on Form S-4 of our report dated March 11,1994, related
to the consolidated statements of operations, stockholders' equity and cash
flows for the three months ended December 31, 1993 and the consolidated
statements of operations and cash flows for the nine months ended September
30, 1993 of Coldwell Banker Corporation and subsidiaries (formerly Coldwell
Banker Residential Holding Company and subsidiaries) included in the HFS
Incorporated Current Report on Form 8-K, as amended, dated May 8, 1996, and
incorporated by reference from the Joint Proxy Statement of CUC
International Inc. and HFS Incorporated on Schedule 14A filed on August 28,
1997.
/s/ Deloitte & Touche LLP
Costa Mesa, California
December 16, 1997
EXHIBIT 23.10
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Post-Effective
Amendment No. 2 on Form S-8 to Form S-4 of Cendant Corporation of our
report dated April 25, 1996 relating to the consolidated financial
statements of Avis, Inc., appearing in HFS Incorporated's Current Report on
Form 8-K, dated August 29, 1996, as amended (Form 8-K). The Form 8-K is
incorporated by reference in the Joint Proxy Statement/Prospectus of CUC
International and HFS Incorporated dated August 28, 1997.
/s/ Price Waterhouse LLP
New York, New York
December 16, 1997
EXHIBIT 23.11
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Post-Effective
Amendment No. 2 on Form S-8 (Registration Statement No. 333-34517-2) of
Cendant Corporation pertaining to the HFS Incorporated 1992 Incentive Stock
Option Plan and the HFS Incorporated Amended and Restated 1993 Stock Option
Plan of our report dated February 23, 1996 (except notes 9-11, as to which
the date is February 7, 1997), with respect to the combined financial
statements of Resort Condominiums International, Inc., its affiliates and
subsidiaries for the year ended December 31, 1995, included in the Current
Report on Form 8-K/A of HFS Incorporated dated March 27, 1997, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Indianapolis, Indiana
December 16, 1997
EXHIBIT 23.12
THE BOARD OF DIRECTORS
PHH CORPORATION:
We consent to the incorporation by reference in the Registration Statement
of Cendant Corporation on Form S-8 relating to Post-Effective Amendment No.
2 to Form S-4 (No. 333-34517), of our report dated April 30, 1997, with
respect to the consolidated balance sheets of PHH Corporation and
subsidiaries (the "Company") at December 31, 1996 and January 31, 1996 and
the related consolidated statements of income, stockholders' equity, and
cash flows for the year ended December 31, 1996 and each of the years in
the two year period ended January 31, 1996, which report appears in the
Form 8-K of HFS Incorporated dated July 16, 1997, incorporated by reference
in the Registration Statement.
Our report contains an explanatory paragraph that states that the Company
adopted the provisions of Statement of Financial Accounting Standards No.
122, "Accounting for Mortgage Servicing Rights," in the year ended January
31, 1996.
/s/ KPMG Peat Marwick LLP
Baltimore, Maryland
December 16, 1997
EXHIBIT 23.13
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 on Form S-8 to Registration Statement No. 333-34517 of
Cendant Corporation on Form S-4 of our report dated June 22, 1995 (except
for Note 13, as to which the date is October 12, 1995), related to the
financial statements of Century 21 of Eastern Pennsylvania, Inc. as of and
for the years ended April 30, 1995 and 1994, included in HFS,
Incorporated's Current Report on Form 8-K dated February 16, 1996 and
incorporated by reference in the Joint Proxy Statement of CUC
International, Inc. and HFS Incorporated on Schedule 14A filed on August
28, 1997.
/s/ Woolard, Krajnik & Company, LLP
WOOLARD, KRAJNIK & COMPANY, LLP
Exton, Pennsylvania
December 16, 1997
