<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 22, 1997
REGISTRATION NO. 333-22517
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
THE HERTZ CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
7514
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
13-1938568
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
225 BRAE BOULEVARD
PARK RIDGE, NEW JERSEY 07656-0713
(201) 307-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
WILLIAM SIDER
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
225 BRAE BOULEVARD
PARK RIDGE, NEW JERSEY 07656-0713
(201) 307-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-------------------------
COPIES TO:
<TABLE>
<C> <C>
DAVID J. SORKIN, ESQ. ARBIE R. THALACKER, ESQ.
SIMPSON THACHER & BARTLETT SHEARMAN & STERLING
425 LEXINGTON AVENUE 599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017-3954 NEW YORK, NEW YORK 10022-6069
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), check the following box. [ ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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EXPLANATORY NOTE
This amendment no. 3 to the registrant's registration statement on Form S-1
(file no. 333-22517, the "Registration Statement") is being filed solely for the
purpose of amending Exhibit 5(a) to the Registration Statement, and no changes
or additions are being made hereby to the prospectus (the "Prospectus") which
forms a part of the Registration Statement. Accordingly, the Prospectus has been
omitted from this filing.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 145,528
NASD fee.................................................... 30,500
NYSE listing fee............................................ 242,975
Blue Sky fees and expenses.................................. 15,000
Printing expenses........................................... 1,100,000
Legal fees and expenses..................................... 600,000
Accounting fees............................................. 70,000
Miscellaneous............................................... 295,997
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Total.................................................. $2,500,000
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</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporation's best interests, and, for criminal
proceedings, had no reasonable cause to believe his or her conduct was illegal.
A Delaware corporation may indemnify officers and directors against expenses
(including attorneys' fees) in connection with the defense or settlement of an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such officer or director actually and reasonably incurred.
In accordance with the Delaware Law, the Restated Certificate of Incorporation
of the Company contains a provision to limit the personal liability of the
directors of the Company for violations of their fiduciary duty. This provision
eliminates each director's liability to the Company or its stockholders for
monetary damages except (i) for any breach of the director's duty of loyalty to
the Company 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 Delaware Law providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions or (iv)
for any transaction from which a director derived an improper personal benefit.
The effect of this provision is to eliminate the personal liability of directors
for monetary damages for actions involving a breach of their fiduciary duty of
care, including any such actions involving gross negligence.
Pursuant to underwriting agreements filed as exhibits to registration statements
relating to underwritten offerings of securities, the underwriters parties
thereto have agreed to indemnify each officer and director of the Company and
each person, if any, who controls the Company within the meaning of the
Securities Act of 1933, against certain liabilities, including liabilities under
said Act.
The directors and officers of the Company are covered by directors' and
officers' insurance policies relating to Ford Motor Company and its
subsidiaries.
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The Restated Certificate of Incorporation of the Company provides for
indemnification of the officers and directors of the Company to the full extent
permitted by applicable law.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Within the past three years, the Company has issued and sold the following
unregistered securities:
1. On April 29, 1994, the Company issued 1,500,000 shares of its Variable Rate
Cumulative Series B Preferred Stock, par value $100 per share, to Ford Motor
Credit Company ("FMCC") in exchange for a $150 million subordinated promissory
note of the Company held by FMCC.
2. On February 27, 1997, the Company issued 1,290 shares of its 5.11% Cumulative
Series C Preferred Stock, par value $.01 per share, to Ford in exchange for U.S.
treasury securities having an aggregate fair market value at that time of $129
million.
The Company believes that the transactions described above were exempt from
registration under Section 4(2) of the Securities Act of 1933 because in each
case the subject securities were sold to a single sophisticated investor who was
purchasing for investment without a view to further distribution.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES
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<CAPTION>
EXHIBIT
NO.
- -------
<S> <C> <C>
1 -- Form of U.S. Underwriting Agreement*
3(a) -- Form of Restated Certificate of Incorporation of the
Company*
3(b) -- Form of By-laws of the Company*
4(a) -- Specimen Certificate of Class A Common Stock of the Company*
4(b) -- Indenture dated as of April 1, 1986 between the Company and
The Chase Manhattan Bank (formerly known as Chemical Bank),
as successor by merger to Manufacturers Hanover Trust
Company, as Trustee (incorporated herein by reference to
Exhibit 4 from the Company's Registration Statement No.
33-4725 on Form S-3 filed April 10, 1986)***
4(c) -- First Supplemental Indenture dated as of April 2, 1990
between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank), as successor by merger to
Manufacturers Hanover Trust Company, as Trustee*
4(d) -- Indenture dated as of June 1, 1989 between the Company and
The Bank of New York, as Trustee (incorporated herein by
reference to Exhibit 4 from the Company's Registration
Statement No. 33-29319 on Form S-3 filed June 14, 1989)***
4(e) -- Form of Indenture dated as of July 1, 1993 between the
Company and Citibank, N.A., as Trustee (incorporated herein
by reference to Exhibit 4(d) from the Company's Registration
Statement No. 33-62902 on Form S-3 filed July 6, 1993)***
4(f) -- Form of Indenture dated as of December 1, 1994 between the
Company and First Union National Bank (formerly known as
First Fidelity Bank, National Association), as Trustee
(incorporated herein by reference to Exhibit 4(e) from
Post-Effective Amendment No. 1 to the Company's Registration
Statement No. 33-54183 on Form S-3 filed December 2,
1994)***
5(a) -- Opinion and Consent of Simpson Thacher & Bartlett regarding
the legality of the Class A Common Stock**
10(a) -- Form of Corporate Agreement between the Company and Ford*
10(b) -- Car Supply Agreement between the Company and Ford*
10(c) -- Joint Advertising Agreement between the Company and Ford*+
10(d) -- Tax-Sharing Agreement between the Company and Ford*
10(e) -- The Hertz Corporation Benefit Equalization Plan*
10(f) -- The Hertz Corporation Supplemental Retirement and Savings
Plan, as amended*
10(g) -- The Hertz Corporation Executive Incentive Compensation Plan*
10(h) -- The Hertz Corporation Long Term Incentive Plan*
10(i) -- Form of The Hertz Corporation Special Supplemental Executive
Pension Benefit for Frank A. Olson and William Sider*
10(j) -- Employment Agreement between the Company and Frank A. Olson*
10(k) -- Employment Agreement between the Company and Craig R. Koch*
10(l) -- Employment Agreement between the Company and William Sider
(incorporated herein by reference to Exhibit 10(iii)(A)(c)
from the Company's Annual Report on Form 10-K for the year
ended December 31, 1992)***
10(m) -- Employment Agreement between Hertz International, Ltd. and
Antoine E. Cau*
10(n) -- Employment Agreement between the Company and Brian J.
Kennedy*
10(o) -- Employment Agreement between the Company and Daniel I.
Kaplan*
10(p) -- Form of The Hertz Corporation Long-Term Equity Compensation
Plan*
21 -- Subsidiaries of the Company*
23(a) -- Consent of Coopers & Lybrand L.L.P.**
23(b) -- Consent of Simpson Thacher & Bartlett (included in Exhibit
5(a))**
24 -- Power of Attorney*
27 -- Financial Data Schedule*
</TABLE>
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* Previously filed.
** Filed herewith.
*** Incorporated by reference.
+ The Company has applied for confidential treatment of portions of this
Exhibit. Accordingly, portions thereof have been omitted and filed
separately.
II-3
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FINANCIAL STATEMENT SCHEDULES
All applicable financial statement schedule disclosure requirements are set
forth in the notes to the Company's consolidated financial statements.
ITEM 17. UNDERTAKINGS
The undersigned hereby undertakes that:
1. For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act of 1933 shall be deemed to be part of
this registration statement as of the time it was declared effective.
2. For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company has
duly caused this Amendment No. 3 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the Borough of Park
Ridge, State of New Jersey, on the 22nd day of April, 1997.
THE HERTZ CORPORATION
By: /s/ WILLIAM SIDER
------------------------------------
Title: Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
* Chairman of the Board, Chief Executive April 22, 1997
- ------------------------------------------ Officer and Director (Principal
(Frank A. Olson) Executive Officer)
* President, Chief Operating Officer and April 22, 1997
- ------------------------------------------ Director
(Craig R. Koch)
/s/ WILLIAM SIDER Executive Vice President, Chief April 22, 1997
- ------------------------------------------ Financial Officer and Director
(William Sider) (Principal Financial Officer)
* Controller (Principal Accounting April 22, 1997
- ------------------------------------------ Officer)
(Leo A. Massad, Jr.)
* Director April 22, 1997
- ------------------------------------------
(John M. Devine)
* Director April 22, 1997
- ------------------------------------------
(Peter J. Pestillo)
* /s/ WILLIAM SIDER Attorney-In-Fact April 22, 1997
----------------------------------------
(William Sider)
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO.
- -------
<S> <C> <C>
1 -- Form of U.S. Underwriting Agreement*
3(a) -- Form of Restated Certificate of Incorporation of the
Company*
3(b) -- Form of By-laws of the Company*
4(a) -- Specimen Certificate of Class A Common Stock of the Company*
4(b) -- Indenture dated as of April 1, 1986 between the Company and
The Chase Manhattan Bank (formerly known as Chemical Bank),
as successor by merger to Manufacturers Hanover Trust
Company, as Trustee (incorporated herein by reference to
Exhibit 4 from the Company's Registration Statement No.
33-4725 on Form S-3 filed April 10, 1986)***
4(c) -- First Supplemental Indenture dated as of April 2, 1990
between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank), as successor by merger to
Manufacturers Hanover Trust Company, as Trustee*
4(d) -- Indenture dated as of June 1, 1989 between the Company and
The Bank of New York, as Trustee (incorporated herein by
reference to Exhibit 4 from the Company's Registration
Statement No. 33-29319 on Form S-3 filed June 14, 1989)***
4(e) -- Form of Indenture dated as of July 1, 1993 between the
Company and Citibank, N.A., as Trustee (incorporated herein
by reference to Exhibit 4(d) from the Company's Registration
Statement No. 33-62902 on Form S-3 filed July 6, 1993)***
4(f) -- Form of Indenture dated as of December 1, 1994 between the
Company and First Union National Bank (formerly known as
First Fidelity Bank, National Association), as Trustee
(incorporated herein by reference to Exhibit 4(e) from
Post-Effective Amendment No. 1 to the Company's Registration
Statement No. 33-54183 on Form S-3 filed December 2,
1994)***
5(a) -- Opinion and Consent of Simpson Thacher & Bartlett regarding
the legality of the Class A Common Stock**
10(a) -- Form of Corporate Agreement between the Company and Ford*
10(b) -- Car Supply Agreement between the Company and Ford*
10(c) -- Joint Advertising Agreement between the Company and Ford*+
10(d) -- Tax-Sharing Agreement between the Company and Ford*
10(e) -- The Hertz Corporation Benefit Equalization Plan*
10(f) -- The Hertz Corporation Supplemental Retirement and Savings
Plan, as amended*
10(g) -- The Hertz Corporation Executive Incentive Compensation Plan*
10(h) -- The Hertz Corporation Long Term Incentive Plan*
10(i) -- Form of The Hertz Corporation Special Supplemental Executive
Pension Benefit for Frank A. Olson and William Sider*
10(j) -- Employment Agreement between the Company and Frank A. Olson*
10(k) -- Employment Agreement between the Company and Craig R. Koch*
10(l) -- Employment Agreement between the Company and William Sider
(incorporated herein by reference to Exhibit 10(iii)(A)(c)
from the Company's Annual Report on Form 10-K for the year
ended December 31, 1992)***
10(m) -- Employment Agreement between Hertz International, Ltd. and
Antoine E. Cau*
10(n) -- Employment Agreement between the Company and Brian J.
Kennedy*
10(o) -- Employment Agreement between the Company and Daniel I.
Kaplan*
10(p) -- Form of The Hertz Corporation Long-Term Equity Compensation
Plan*
21 -- Subsidiaries of the Company*
23(a) -- Consent of Coopers & Lybrand L.L.P.**
23(b) -- Consent of Simpson Thacher & Bartlett (included in Exhibit
5(a))**
24 -- Power of Attorney*
27 -- Financial Data Schedule*
</TABLE>
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* Previously filed.
** Filed herewith.
*** Incorporated by reference.
+ The Company has applied for confidential treatment of portions of this
Exhibit. Accordingly, portions thereof have been omitted and filed
separately.
<PAGE> 1
EXHIBIT 5(a)
[Letterhead of Simpson Thacher & Bartlett]
April 22, 1997
The Hertz Corporation
225 Brae Boulevard
Park Ridge, New Jersey 07656
Dear Sirs:
We have acted as special counsel to The Hertz Corporation, a Delaware
corporation (the "Company"), in connection with the proposed sale of shares of
Class A Common Stock, par value $0.01 per share, of the Company (the "Shares"),
as described in the Registration Statement on Form S-1, as amended (the
"Registration Statement"), filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act").
The Shares are to be purchased by certain underwriters and offered for sale to
the public (the "Offering") pursuant to the terms of an Underwriting Agreement
(the "Underwriting Agreement"), the form of which has been filed as an exhibit
to the Registration Statement.
We have examined, and have relied upon as to matters of fact, such
documents, corporate records and other instruments as we have deemed necessary
for the purpose of this opinion.
Based upon the foregoing, we are of the opinion that the Shares to be sold
by the Company (including Shares, if any, registered in a registration statement
relating to the Offering filed by the Company pursuant to Rule 462(b) under the
Securities Act), have been duly authorized by the Company and, upon payment and
delivery in accordance with the Underwriting Agreement, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5(a) to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Registration Statement. We hereby also consent to the
incorporation by reference of this opinion and consent in a registration
statement, if any, relating to the Offering filed by the Company pursuant to
Rule 462(b) under the Securities Act.
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT
--------------------------------------
Simpson Thacher & Bartlett
2
<PAGE> 1
EXHIBIT 23(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this Amendment No. 3 to the registration
statement on Form S-1 (File No. 333-22517) of our report dated January 24, 1997,
except for Note 14, as to which the date is March 13, 1997, on our audits of the
consolidated financial statements and financial statement schedule of The Hertz
Corporation. We also consent to the reference to our firm under the caption
"Experts."
/s/ COOPERS & LYBRAND L.L.P.
--------------------------------------
COOPERS & LYBRAND L.L.P.
Parsippany, New Jersey
April 22, 1997
