EXHIBIT 4(b)
CUC International Inc.
3% Convertible Subordinated Notes due February 15, 2002
REGISTRATION RIGHTS AGREEMENT
Dated as of
February 11, 1997
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇ & Company Incorporated,
Alex. ▇▇▇▇▇ & Sons Incorporated,
▇▇▇▇▇▇ ▇▇▇▇ LLC,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC,
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
CUC International Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 3% Convertible
Subordinated Notes due February 15, 2002 (the "Securities"). As an inducement to
the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. DEFINITIONS. (a) Capitalized terms used herein without definition
shall have the meanings ascribed thereto in the Purchase Agreement. As used in
this Agreement, the following defined terms shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of
1933, as amended.
"Affiliate" of any specified person means any other person which
directly, or indirectly through one or more intermediaries, is in control of, is
controlled by, or is under common control with such specified person. For
purposes of this definition, control of a person means the power, direct or
indirect, to direct or cause the direction of the management and policies of
such person whether by contract, securities ownership or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Company's common stock, par value $.01 per
share.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) hereof.
"Effective Time" means the date on which the Commission first declares
the Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
The term "holder" means, when used with respect to any Security, the
Holder (as defined in the Indenture) thereof and, with respect to any Common
Stock, the record holder of such Common Stock.
"Indenture" means the Indenture, dated as of February 11, 1997, between
the Company and Marine Midland Bank, as Trustee, as amended and supplemented
from time to time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" means an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus and any final prospectus filed pursuant to Rule 424(b)
under the Act, including any prospectus that discloses information previously
omitted from a prospectus filed as part of an effective registration statement
in reliance upon Rule 430A under the Act) included in the Shelf Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Shelf Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
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"Purchase Agreement" means the purchase agreement dated February 5,
1997 between the Purchasers and the Company.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture and the shares of Common Stock
issued or issuable upon conversion of such Securities; provided, however, that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock which (i) has been registered pursuant to an effective registration
statement under the Securities Act and sold in a manner contemplated by the
Prospectus included in the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto) or (iii) has otherwise been
transferred and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.6(c) of the Indenture.
"Rules and Regulations" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments to such registration statement and supplements to such
Prospectus, including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration statement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated by the
Commission thereunder, as the same shall be amended from time to time.
The term "underwriter" means any underwriter of Registrable Securities
in connection with an underwritten offering pursuant to Section 6 hereof.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as representing the
principal amount of Securities which was surrendered for conversion or exchange
in order to receive such number of shares of Common Stock.
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2. SHELF REGISTRATION. (a) The Company shall, within 90 calendar days
after the First Time of Delivery (as defined in the Purchase Agreement), file
with the Commission a Shelf Registration Statement relating to the offer and
sale of the Registrable Securities and, thereafter, shall use its reasonable
best efforts to cause such Shelf Registration Statement to be declared effective
under the Act as promptly as practicable but not later than 180 calendar days
after the First Time of Delivery; provided, however, that no holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement or to use the Prospectus forming a part thereof for resales of
Registrable Securities unless such holder is in compliance with Section 3(a)
hereof.
(b) The Company shall use its reasonable best efforts:
(i) To keep the Shelf Registration Statement continuously
effective (subject to the provisions of Section 2(c) hereof) in order
to permit the Prospectus forming part thereof to be usable by holders
for resales of Registrable Securities for a period of three years from
the later of (x) the Effective Time of the Shelf Registration Statement
and (y) the last Time of Delivery (as defined in the Purchase
Agreement), or such shorter period that will terminate (A) when all the
Registrable Securities that are covered by the Shelf Registration
Statement have been transferred pursuant to the Shelf Registration
Statement or have been transferred pursuant to Rule 144 under the Act
or otherwise transferred in a manner that results in delivery of a new
security not subject to transfer restrictions under the Act as provided
by the Indenture and (B) when, in the written opinion of counsel to the
Company, all outstanding Registrable Securities held by persons that
are not Affiliates of the Company may be resold without registration
under the Act pursuant to Rule 144(k) under the Act or any successor or
analogous provision thereto and the legend prescribed by the first
paragraph of Section 2.2 of the Indenture has been removed from such
Registrable Securities (in any such case, such period being called the
"Effectiveness Period");
(ii) Subject to the provisions of Section 3(a) hereof, after the
effectiveness of the Shelf Registration Statement, promptly upon the
request of any Electing Holder, to take any action reasonably necessary
to register the sale of any Registrable Securities of such Electing
Holder, including, without limitation, any action necessary to identify
such Electing Holder as a selling securityholder in a Prospectus
supplement; and
(iii) If at any time, the Securities, pursuant to Article Twelve
of the Indenture, are convertible into securities other than the Common
Stock, the Company shall, or shall cause any successor issuer under the
Indenture to, cause such securities to be included in the Shelf
Registration Statement no later than the date on which the Securities
may then be convertible into such securities. No later than such date,
the Company shall cause any such successor issuer to execute and
deliver a written agreement to the Trustee under the Indenture, for the
benefit of the Holders, providing such Holders with the benefits
provided to them under this Agreement, but with respect to such other
securities (treating the issuer of such other securities as the Company
for this purpose).
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(c) Notwithstanding the foregoing, the Company may, during the
Effectiveness Period, suspend the use of the Prospectus for a period not to
exceed 90 days (whether or not consecutive) in any 12-month period if the Board
of Directors of the Company shall have determined in good faith that because of
valid business reasons (not including avoidance of the Company's obligations
hereunder), including mergers or other business combination transactions, the
acquisition or divestiture of assets, pending corporate developments and similar
events, it is in the best interests of the Company to suspend such use, and
prior to or contemporaneously with suspending such use the Company provides the
holders with written notice of such suspension, which notice need not specify
the nature of the event giving rise to such suspension. At the end of any such
suspension period, the Company shall provide the holders with written notice of
the termination of such suspension.
3. REGISTRATION PROCEDURES. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall require each holder of Registrable
Securities to be sold pursuant to a Shelf Registration Statement to
complete and return to the Company a questionnaire substantially in the
form of the Notice of Registration Statement and Selling Securityholder
Questionnaire (the "Notice and Questionnaire") set forth in Appendix A
hereto providing such information regarding the holder and the
distribution of such holder's Registrable Securities as may be required
by applicable law or regulation for inclusion in such Shelf
Registration Statement. The Company shall mail the Notice and
Questionnaire to each holder prior to the filing of the Shelf
Registration Statement. The Company shall include in the Registration
Statement all Registrable Securities which any holder shall have
elected (each, an "Electing Holder") to include in the Shelf
Registration Statement as specified in a signed and completed Notice
and Questionnaire returned to the Company on or prior to the 30th
calendar day after the date the Notice and Questionnaire is mailed to
all holders (the "Initial Questionnaire Deadline"). (For purposes of
this Agreement, by electing to include any Registrable Securities in
the Shelf Registration Statement and unless it specifies otherwise, an
Electing Holder shall be deemed to have elected also to include in the
Shelf Registration Statement all Stock (and other securities) that may
be issued from time to time on conversion of such Registrable
Securities before they are sold pursuant to the Shelf Registration
Statement.) As used herein, the term "Specified Registrable Securities"
shall mean all Registrable Securities that the Electing Holders have
elected to include in the Registration Statement as provided in the
preceding sentences on or prior to the Initial Questionnaire Deadline.
The Company shall include in the Shelf Registration Statement as of the
Effective Time the Specified Registrable Securities of all Electing
Holders who shall have returned a properly completed and signed Notice
and Questionnaire on or prior to the date 10 calendar days prior to the
Effective Time and reasonably promptly after receipt of a returned
Notice and Questionnaire in the case of all other Electing Holders as
provided below (which date of inclusion may be subsequent to the
Effective Time). If any holder does not deliver a properly completed
and signed Notice and Questionnaire on or before the Initial
Questionnaire Deadline, the Company may, in its discretion, decline to
include such holder's Registrable Securities in the Shelf Registration
Statement and (unless the Company elects
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otherwise as provided in the next sentence) such holder shall be deemed
to have waived, on its behalf and on behalf of each person who
subsequently may acquire Registrable Securities from it, all rights to
registration of its Registrable Securities pursuant to this Agreement.
In the event that the Company elects at any time to permit any such
holder to include its Registrable Securities in the Shelf Registration
Statement, such holder will thereafter be an Electing Holder. Each
person acquiring Specified Registrable Securities from an Electing
Holder at any time (including after the date on which such Electing
Holder provided the Company its Notice and Questionnaire) shall also be
entitled to have such Specified Registrable Securities included in the
Registration Statement for its own account so long as such person
provides the Company with an updated and signed Notice and
Questionnaire, at which point it will become an Electing Holder. Any
such transferee shall be entitled to have its Specified Registrable
Securities included in the Registration Statement (i) at the Effective
Time, if the updated Notice and Questionnaire is received by the
Company on or prior to the date 10 calendar days prior to the Effective
Time and (ii) in all other cases, reasonably promptly after the Company
receives the updated Notice and Questionnaire (which date of inclusion
may be subsequent to the Effective Time). In the case of any Specified
Registrable Securities to be included in the Registration Statement
pursuant to clause (ii) of the preceding sentence, the Company shall
effect such inclusion by filing such post-effective amendments to the
Registration Statement or supplements to the Prospectus as may be
required by the Rules and Regulations to permit the resale of such
Specified Registrable Securities for the accounts of the respective
Electing Holders.
(b) Subject to paragraph (a) of this Section (3), the Company
shall furnish to each Electing Holder, prior to the Effective Time, a
copy of the Shelf Registration Statement initially filed with the
Commission, and shall furnish to such holders, prior to the filing
thereof with the Commission, copies of each amendment thereto and each
amendment or supplement, if any, to the Prospectus included therein,
and shall use its best efforts to reflect in each such document, at the
Effective Time or when so filed with the Commission, as the case may
be, such comments as such holders and their respective counsel
reasonably may propose.
(c) The Company shall promptly take such action as may be
necessary so that (i) each of the Shelf Registration Statement and any
amendment thereto and the Prospectus forming part thereof and any
amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) each of the Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) each
of the Prospectus forming part of the Shelf Registration Statement, and
any amendment or supplement to such Prospectus, does not at any time
during the Effectiveness Period include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(d) The Company shall promptly notify each Electing Holder, and
shall confirm such notification in writing if so requested by any such
holder:
(1) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective; and
(2) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for such purpose;
(4) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such
purpose; and
(5) of the happening of any event or the existence of any
state of facts that requires the making of any changes in the
Shelf Registration Statement or the Prospectus included therein
so that, as of such date, such Shelf Registration Statement and
Prospectus do not contain an untrue statement of a material fact
and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied by
an instruction to such holders to suspend the use of the
Prospectus until the requisite changes have been made).
(e) The Company shall use its reasonable best efforts to prevent
the issuance, and if issued to use its reasonable best efforts to
obtain the withdrawal, of any order suspending the effectiveness of the
Shelf Registration Statement at the earliest possible time.
(f) The Company shall furnish to each Electing Holder, without
charge, at least one copy of the Shelf Registration Statement and all
post-effective amendments thereto, including all financial statements
and schedules thereto, if any, and, if such holder so requests in
writing, all reports, other documents and exhibits that are filed with
or incorporated by reference in the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver
to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such Electing Holder may reasonably request to facilitate its offer and
sale of Registrable Securities; and the Company consents (except during
the continuance of any event described in Section 3(d)(5) above) to the
use of the
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Prospectus and any amendment or supplement thereto by each of the
Electing Holders in connection with the offering and sale of the
Registrable Securities covered by the Prospectus and any amendment or
supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to
the Shelf Registration Statement, the Company shall (1) register or
qualify or cooperate with the Electing Holders and their respective
counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or "blue
sky" laws of such jurisdictions within the United States as any
Electing Holder may reasonably request, (2) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as
may be necessary to enable any Electing Holder or underwriter, if any,
to complete its distribution of Registrable Securities pursuant to the
Shelf Registration Statement, and (3) take any and all other actions
necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities; provided, however, that in no event
shall the Company be obligated to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to so qualify but for this Section 3(h) or (ii)
file any general consent to service of process in any jurisdiction
where it is not as of the date hereof so subject.
(i) Unless any Registrable Securities shall be in book-entry only
form, the Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to the Shelf
Registration Statement, which certificates, if so required by any
securities exchange upon which any Registrable Securities are listed,
shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which
certificates shall be free of any legends of the type set forth in
Section 2.2 of the Indenture and in such permitted denominations and
registered in such names as Electing Holders may request in connection
with the sale of Registrable Securities pursuant to the Shelf
Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by
paragraph 3(d)(5) above, the Company shall promptly prepare a
post-effective amendment or supplement to the Shelf Registration
Statement or the Prospectus, or any document incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities included therein,
the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If the Company notifies the Electing Holders of the
occurrence of any event contemplated by paragraph 3(d)(5) above or
pursuant to Section 2(c), each Electing Holder agrees, as a consequence
of the inclusion of any of such holder's Registrable Securities in the
Shelf Registration Statement, to suspend the use of the Prospectus
until the requisite changes to the Prospectus (as contemplated by this
Section 3(j)) have been made.
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(k) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the Registrable
Securities that are debt securities.
(l) The Company shall use its reasonable best efforts to comply
with all applicable Rules and Regulations, and to make generally
available to its securityholders as soon as practicable, but in any
event not later than eighteen months after (i) the effective date (as
defined in Rule 158(c) under the Securities Act) of the Shelf
Registration Statement, (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement, and (iii) the date of
each filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in the Shelf Registration
Statement, an earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under
the Trust Indenture Act; in connection with such qualification, the
Company shall cooperate with the Trustee under the Indenture and the
Holders (as defined in the Indenture) to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and the Company
shall execute, and shall use all reasonable efforts to cause the
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely
manner. In the event that any such amendment or modification referred
to in this Section 3(m) involves the appointment of a new trustee under
the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(n) In the event of an underwritten offering conducted pursuant
to Section 6 hereof, the Company shall, if requested, promptly include
or incorporate in a Prospectus supplement or post-effective amendment
to the Shelf Registration Statement such information as the Managing
Underwriters reasonably agree should be included therein and to which
the Company does not reasonably object and shall make all required
filings of such Prospectus supplement or post-effective amendment as
soon as practicable after it is notified of the matters to be included
or incorporated in such Prospectus supplement or post-effective
amendment.
(o) The Company shall enter into such customary agreements
(including an underwriting agreement in customary form in the event of
an underwritten offering conducted pursuant to Section 6 hereof) and
take all other appropriate action in order to expedite and facilitate
the registration and disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 hereof with
respect to all parties to be indemnified pursuant to Section 5 hereof.
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(p) The Company shall:
(i)(A) make reasonably available for inspection by Electing
Holders, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement, and any attorney,
accountant or other agent retained by such holders or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries, and (B) cause the Company's officers, directors and
employees to supply all information reasonably requested by such
holders or any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case,
as is customary for similar due diligence examinations; provided,
however, that all records, information and documents that are
designated in writing by the Company, in good faith, as
confidential, proprietary or containing any material non-public
information shall be kept confidential by such holders and any
such underwriter, attorney, accountant or agent (pursuant to an
appropriate confidentiality agreement in the case of any such
holder or agent), unless such disclosure is made pursuant to
judicial process in a court proceeding (after first giving the
Company an opportunity promptly to seek a protective order or
otherwise limit the scope of the information sought to be
disclosed) or is required by law, or such records, information or
documents become available to the public generally or through a
third party not in violation of an accompanying obligation of
confidentiality; and provided further that, if the foregoing
inspection and information gathering would otherwise disrupt the
Company's conduct of its business, such inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the other
parties entitled thereto by one counsel designated by and on
behalf of Electing Holders and other parties;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and
warranties to the holders participating in such underwritten
offering and to the Managing Underwriters, in form, substance and
scope as are customarily made by the Company to underwriters in
secondary underwritten offerings of equity and convertible debt
securities and covering matters including, but not limited to,
those set forth in the Purchase Agreement;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the
Company (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters) addressed to the underwriters, covering such
matters as are customarily covered in opinions requested in
secondary underwritten offerings of equity and convertible debt
securities and such other matters as may be reasonably requested
by such holders and underwriters (it being agreed that the
matters to be covered by such opinions shall include, without
limitation, as of the date of the opinion and as of the Effective
Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence
from the Shelf Registration Statement and the Prospectus,
including the documents incorporated by reference therein, of an
untrue statement of a
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material fact or the omission of a material fact required to be
stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were made) not misleading;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and
updates thereof from the independent public accountants of the
Company (and, if necessary, from the independent public
accountants of any subsidiary of the Company or of any business
acquired by the Company in each case for which financial
statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each
holder participating in such underwritten offering (if such
holder has provided such letter, representations or
documentation, if any, required for such cold comfort letter to
be so addressed) and the underwriters, in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with secondary underwritten
offerings;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and
certificates as may be reasonably requested by the Managing
Underwriters, if any, including, without limitation, certificates
to evidence compliance with Section 3(j) hereof and with any
conditions contained in the underwriting agreement or other
agreements entered into by the Company.
(q) The Company will use its reasonable best efforts to cause the
Common Stock issuable upon conversion of the Securities to be listed
for quotation on the New York Stock Exchange, Inc. or other stock
exchange or trading system on which the Common Stock primarily trades
on or prior to the Effective Time of the Shelf Registration Statement
hereunder.
(r) In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of
the NASD Rules (or any successor provision thereto)) of the Company or
has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD
Rules (or any successor provision thereto)) and such broker-dealer
shall underwrite, participate as a member of an underwriting syndicate
or selling group or assist in the distribution of any Registrable
Securities covered by the Shelf Registration Statement, whether as a
holder of such Registrable Securities or as an underwriter, a placement
or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company shall assist such broker-dealer in complying with the
requirements of the NASD Rules, including, without limitation, by (A)
engaging a "qualified independent underwriter" (as defined in Rule
2720(b)(15) of the NASD Rules (or any successor provision thereto)) to
participate in the preparation of the registration statement relating
to such Registrable Securities, to exercise usual standards of due
diligence in respect thereto and to recommend the public offering price
of such Registrable Securities, (B) indemnifying such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
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(s) The Company shall use its best efforts to take all other
steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. REGISTRATION EXPENSES. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 6 hereof. In addition, in the event of an underwritten offering of
Registrable Securities conducted pursuant to Section 6 hereof, or if in any
other event the Company requires that inspection and information gathering be
coordinated by counsel for the Electing Holders as provided in Section 3(p)(i)
hereof, the Company shall pay up to an aggregate of $75,000 of the fees and
expenses of a single counsel selected by a plurality of the Electing Holders
holding an aggregate of not less than 25% of the Registrable Securities to be
included in such underwritten offering (or, in any such other event, included in
the Shelf Registration Statement) to represent them. The Electing Holders
participating in such offering (or, in any such other event, participating in
such inspection and information gathering) shall be responsible, on a pro rata
basis based on the respective amount of their Registrable Securities included in
such offering for all fees and expenses of such counsel in excess of $75,000.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, if any, which
facilitates the disposition of Registrable Securities, and each of their
respective officers and directors and each person who controls such Electing
Holder or underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (each such person being sometimes referred to as
an "Indemnified Person") against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Shelf Registration Statement under which such Registrable Securities are
registered under the Securities Act or an omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus contained therein or furnished by the Company to any Indemnified
Person or an omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company hereby
agrees to reimburse such Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon (i) an untrue statement or alleged untrue statement made in, or an
omission or alleged omission from, such Shelf Registration Statement or
Prospectus in reliance upon and in conformity with written information furnished
to the Company by such Indemnified Person expressly for use therein or (ii) (x)
the use of a Prospectus during any period when its use has been suspended
pursuant to Section 2(c) or 3(d)(5) after the Company has provided written
-12-
notice of such suspension to the Indemnified Person, unless the untrue
statement(s) or omission(s) or alleged untrue statement(s) or omission(s) giving
rise to such loss, claim, damage or liability was (were) not corrected in the
Prospectus available for use at the end of the period of suspension or (y) the
use of an outdated Prospectus after the Company has provided an updated
Prospectus correcting the untrue statement or alleged untrue statement or
omission or alleged omission giving rise to such loss, claim, damage or
liability and furnished copies to such Indemnified Person.
(b) Indemnification by the Holders and Underwriters. Each Electing
Holder agrees, as a consequence of the inclusion of any of such holder's
Registrable Securities in such Shelf Registration Statement, and each
underwriter, if any, which facilitates the disposition of Registrable Securities
shall agree, as a consequence of facilitating such disposition of Registrable
Securities, severally and not jointly, to (i) indemnify and hold harmless the
Company, its directors (including any person who, with his or her consent, is
named in the Shelf Registration Statement as a director nominee of the Company),
its officers who sign any Shelf Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or such other persons may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such Shelf Registration Statement or Prospectus or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
light of the circumstances under which they were made, in the case of the
Prospectus), not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such holder or underwriter expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 5. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
elect, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (which
counsel shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party
-13-
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 5(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Electing Holders and any
underwriters in this Section 5(d) to contribute shall be several in proportion
to the percentage of principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter be required to undertake liability to any person hereunder for
any amounts in excess of the aggregate discount, commission or other
compensation payable to such underwriter with respect to the Registrable
Securities underwritten by it and distributed pursuant to the Shelf Registration
Statement.
-14-
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
6. UNDERWRITTEN OFFERING. Any holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (i) the Electing Holders of at least a
majority in aggregate principal amount of the Registrable Securities then
covered by the Shelf Registration Statement shall request such an offering and
(ii) at least such aggregate principal amount of such Registrable Securities
shall be included in such offering; and provided further that the Company shall
not be obligated to effect more than one underwritten offering pursuant to this
Agreement. Upon receipt of such a request, the Company shall provide all holders
of Registrable Securities written notice of the request, which notice shall
inform such holders that they have the opportunity to participate in the
offering. In any such underwritten offering, the investment banker or bankers
and manager or managers that will administer the offering will be selected by,
and the underwriting arrangements with respect thereto (including the size of
the offering) will be approved by, the holders of a majority of the Registrable
Securities to be included in such offering; provided, however, that such
investment bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Company. No holder may participate in any underwritten
offering contemplated hereby unless (a) such holder agrees to sell such holder's
Registrable Securities to be included in the underwritten offering in accordance
with any approved underwriting arrangements, (b) such holder completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such approved underwriting arrangements, and (c) if such holder is not
then an Electing Holder, such holder returns a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a) hereof within a
reasonable amount of time before the commencement of such underwritten offering.
The holders participating in any underwritten offering shall be responsible for
any underwriting discounts and commissions and fees and, subject to Section 4
hereof, expenses of their own counsel. The Company shall pay all reasonable
expenses customarily borne by issuers, including but not limited to filing fees,
the fees and disbursements of its counsel and independent public accountants and
any printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing or the provisions of Section 3(n) hereof, upon
receipt of a request from the Managing Underwriter or a representative of
holders of a majority of the Registrable Securities to be included in an
underwritten offering to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 90 days if the Board of Directors of the Company shall have determined
in good faith that the Company has a bona fide business reason for such delay.
-15-
7. MISCELLANEOUS.
(a) Other Registration Rights. The Company may grant registration
rights that would permit any Person the right to piggy-back on any Shelf
Registration Statement, provided that if the Managing Underwriter of any
underwritten offering conducted pursuant to Section 6 hereof notifies the
Company and the Electing Holders that the total amount of securities which the
Electing Holders and the holders of such piggy-back rights intend to include in
any Shelf Registration Statement is so large as to materially threaten the
success of such offering (including the price at which such securities can be
sold), then the amount, number or kind of securities to be offered for the
account of holders of such piggy-back rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number and kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registrable Securities to be included in
such Shelf Registration Statement.
(b) Amendments and Waivers. This Agreement, including this Section
7(b), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by the Company
and the holders of a majority in aggregate principal amount of Registrable
Securities then outstanding. Each holder of Registrable Securities outstanding
at the time of any such amendment, waiver or consent or thereafter shall be
bound by any amendment, waiver or consent effected pursuant to this Section
7(b), whether or not any notice, writing or marking indicating such amendment,
waiver or consent appears on the Registrable Securities or is delivered to such
holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided in Sections 1.5 and 1.6 of the
Indenture.
(d) Parties in Interest. The parties to this Agreement intend that all
holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
-16-
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder.
(j) Nominees. If any Registrable Securities are held by a nominee or in
"street name" for the beneficial owner thereof, unless the Company is otherwise
aware of the identity of the beneficial owner (including pursuant to a timely
received, properly signed and completed Notice and Questionnaire), the Company
shall be entitled to treat any such holder as the owner of such securities for
all purposes of this Agreement, including, without limitation, the furnishing of
notices and any request or other action by any holder or holders (and any
determination of the number or percentage of Registrable Securities necessary to
effect such action).
(k) Liquidated Damages. Notwithstanding anything to the contrary
contained in this Agreement or the Indenture, it is hereby acknowledged and
agreed that the Company shall have no liability for monetary damages to the
Purchasers or any holder or beneficial owner of Securities (including Common
Stock issuable upon conversion thereof) for any breach, violation, default or
failure to comply with any of the Company's representations, warranties,
covenants or agreements set forth in Section 2 of this Agreement or Section
10.11 of the Indenture except, in the case of this Agreement, as expressly
provided in Section 5 hereof, and except, in the case of Section 10.11 of the
Indenture, as expressly provided in such Section 10.11; provided, however, that
if the Company shall breach, violate, default or fail to comply with any of its
representations, warranties, covenants or agreements set forth in Section 2 of
this Agreement or Section 10.11 of the Indenture, the Purchasers, the holders
and any beneficial owner of Securities (including Common Stock issuable upon
conversion thereof) shall be entitled to, and the Company shall not contest or
oppose the granting of, any equitable relief, including specific performance,
injunctive relief and declaratory orders.
-17-
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
CUC International Inc.
By:_______________________________
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇ & Company Incorporated
Alex. ▇▇▇▇▇ & Sons Incorporated
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
By: ___________________________________
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Purchasers
-18-
Exhibit A
CUC INTERNATIONAL INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the CUC International Inc.
(the "Company") 3% Convertible Subordinated Notes due February 15, 2002 (the
"Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact [Name, address and
telephone number of contact at the Company].
CUC INTERNATIONAL INC.
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
(Date)
CUC International Inc. (the "Company") has filed with the United States
Securities and Exchange Commission (the "Commission") a preliminary registration
statement on Form S-3 (the "Shelf Registration Statement") for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), of the Company's 3% Convertible Subordinated Notes due
February 15, 2002 (CUSIP Nos. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇) (the "Notes"),
and the shares of common stock, par value $.01 per share, issuable upon
conversation thereof (the "Common Stock"), in accordance with the terms of the
Registration Rights Agreement, dated as of February 11, 1997 (the "Registration
Rights Agreement"), between the Company and the Purchasers named therein (the
"Purchasers"). A copy of the Registration Rights Agreement is attached hereto.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Registration Rights Agreement.
In order to have Registrable Securities included in the Registration
Statement, this Notice of Registration Statement and Selling Securityholder
Questionnaire ("Notice and Questionnaire") must be completed, executed and
delivered to the Company's counsel at the address set forth herein for receipt
ON OR BEFORE [DEADLINE FOR RESPONSE]. Unless the Company otherwise consents,
beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Registration Statement and related Prospectus and
(ii) may not sell their Registrable Securities pursuant thereto, unless the
Company, in its discretion, consents to include such owner's securities in the
Registration Statement.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement to mean all or any portion of the Securities issued from time to time
under the Indenture and the shares of Common Stock issuable upon conversion of
such Securities; provided, however, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights
Agreement to mean any Security or share of Common Stock issuable upon conversion
thereof except any such
A-2
Security or share of Common Stock which (i) has been registered pursuant to an
effective registration statement under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto) or (iii) has otherwise been transferred and a new
Security or share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in accordance
with Section 3.6(c) of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3)
(unless otherwise specified under item 3). The undersigned, by signing and
returning this Notice and Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement, including, without
limitation, Section 5 of the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer (completed and signed) set
forth in Appendix I attached to this Notice and Questionnaire and in Appendix A
to the Prospectus and hereby undertakes to do so.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
-----------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in (3) below:
-----------------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in (3) below
are Held:
-----------------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Telephone:
-------------------------------------
Fax:
-------------------------------------
Contact Person:
-------------------------------------
(3) Beneficial Ownership of Securities and shares of Common Stock issued
upon conversion of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock issued upon conversion
of any Securities.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:_____________________
CUSIP No(s). of such Registrable Securities:___________________________
Number of shares of Common Stock (if any) issued upon conversion of
such Registrable Securities:___________________________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:_____________________________________________________________
CUSIP No(s). of such other Securities:_________________________________
A-4
Number of shares of Common Stock (if any) issued upon conversion of
such other Securities:_________________________________________________
(c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement:____________________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:__________________________________________
Number of shares of Common Stock (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement:________________________________________________
(4) Beneficial Ownership of Other Securities of the Company:_______________
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of its
affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or U.S.
inter-dealer quotation system of a registered national securities association on
which the Registrable Securities may be listed or quoted at the time
A-5
of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise
than on such exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they assume. The
Selling Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the prospectus
delivery and other provisions of the Exchange Act and the rules and regulations
thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion of
the Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(a)
of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which
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may occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices to the Company hereunder and pursuant
to the Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
CUC International Inc.
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Attention: General Counsel
Once this Notice and Questionnaire is executed by the Selling Securityholder
and received by the Company, the terms of this Notice and Questionnaire, and the
representations and warranties contained herein, shall be binding on, shall
inure to the benefit of and shall be enforceable by the respective successors,
heirs, personal representatives, and assigns of the Company and the Selling
Securityholder with respect to the Registrable Securities beneficially owned by
such Selling Securityholder and listed in Item (3) above. This Agreement shall
be governed in all respects by the laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: ________________
________________________________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By: __________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY AT:
CUC International Inc.
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Attention: General Counsel
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Appendix I
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Marine Midland Bank, as Trustee
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Attention: Corporate Trust Services-CUC
Re: CUC International Inc. (the "Company") 3% Convertible
Subordinated Notes due February 15, 2002 (the "Notes")
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes or _____
shares of the Company's common stock, par value $.01 per share, issued on
conversion of Notes ("Stock") pursuant to the Registration Statement on Form S-3
(File No. 333-____) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the Notes
or Stock is named as a "Selling Holder" in the Prospectus dated ___________,
____ or in amendments or supplements thereto, and that the aggregate principal
amount of the Notes or number of shares of Stock transferred are [a portion of]
the Notes or Stock listed in such Prospectus opposite such owner's name.
Dated:
Very truly yours,
___________________________
(Name)
By:________________________
(Authorized Signature)