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WYNDHAM INTERNATIONAL, INC.
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STOCKHOLDERS' AGREEMENT
BY AND AMONG
THE STOCKHOLDERS NAMED
ON THE SIGNATURE PAGES HERETO
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Dated as of June 29, 1999
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TABLE OF CONTENTS
Section Heading Page
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Article 1. Certain Definitions ................................................1
Article 2. Board of Directors .................................................7
Section 2.1. Board of Directors ..........................................7
Article 3. Restrictions or, Transfer ..........................................7
Section 3.1. Restrictions on Transfer, .................................8
Section 3.2. Exceptions to Restrictions ................................8
Section 3.3. Binding Effect on Transferees .............................9
Section 3.4. Notifications Regarding Transfers .........................9
Section 3.5. Restrictions on Conversion ................................9
Article 4. Tag-Along Rights; Drag-Along Rights ...............................10
Section 4.1. Tag-Along Rights .........................................11
Section 4.2. Drag-Along Rights ........................................11
Article 5. Registration Rights ...............................................12
Section 5.1. Registration Rights ......................................12
Article 6. Miscellaneous .....................................................13
Section 6.1. Further Actions; Cooperation .............................13
Section 6.2. Successors and Assigns ...................................13
Section 6.3. Representatives ..........................................14
Section 6.4. Amendment; Modification; Waiver ..........................14
Section 6.5. Notices ..................................................14
Section 6.6. Entire Agreement: Governing Law ..........................14
Section 6.7. Injunctive Relief ........................................15
Section 6.8. Headings .................................................15
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting
the Shares of Common Stock; New Issuances ................15
Section 6.10. Counterparts .............................................15
Section 6.11. Jurisdiction; Forum ......................................16
Section 6.12. Termination ..............................................16
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of June 29, 1999, by
and among the parties named on the signature pages hereto (collectively, the
"Stockholders" and such other persons that become parties to this Agreement as
described herein.
WITNESSETH:
WHEREAS, pursuant to (i) a Securities Purchase Agreement, dated as of
February 18, 1999, as amended, by and among Wyndham International, Inc. (the
"Company"), Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International Operating Partnership, L.P., Patriot American Hospitality
Partnership, L.P. and the persons identified therein as Investors (the "Original
Investors") and (ii) Assignment and Assumption Agreements by and among the
Company, Patriot and the Stockholders, the Stockholders will purchase shares of
Series B Convertible Preferred Stock (the "Shares") of the Company; and
WHEREAS, the parties hereto deem it in their best interests to enter into
this Agreement in order to govern certain of their rights, duties and
obligations in connection with their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale, assignment,
transfer, encumbrance or other disposition of their securities of the Company
and to provide for certain rights and obligations with respect thereto as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as follows:
Article 1. Certain Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" means, as to any Person, (a) any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person, (b) any Person who is a director, officer, partner or principal of such
Person or of any Person which directly or indirectly controls, is controlled by,
or is under common control with such Person, and (c) any individual who is a
member of the immediate family of any Person described in clause (a) or clause
(b) above. For purposes of this definition, "control" of a Person shall mean the
power, direct or indirect, (i) to vote or direct the voting of 5% or more of the
Voting Stock of such Person or (ii) to direct or cause the direction of the
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management and policies of such Person whether by ownership of Capital Stock, by
contract or otherwise.
"Agreement" means this Agreement as in effect on the date hereof and as
hereafter from time to time amended, modified or supplemented in accordance with
the terms hereof.
"Apollo Investors" means Apollo Real Estate Investment Fund IV, L.P.,
Apollo Investment Fund IV, L.P., Strategic Real Estate Investments I, LLC and
their respective Permitted Assignees and Permitted Third Party Transferees.
"Apollo Stockholder" means, collectively, Apollo Management IV, L.P. and
Apollo Real Estate Management IV, L.P.
"Beacon Affiliate" means any director or officer, or member of the
immediate family of a director or officer, of any entity that is included within
the definition of "Beacon Stockholder" in office at the time of the relevant
determination, and any corporation, partnership, limited liability company,
trust or other entity that is controlled by, or the equity interests of which
are owned by, any of the foregoing individuals.
"Beacon Stockholder" means, collectively, Beacon Capital Partners, L.P.,
Beacon Capital Partners, Inc., BCP Voting, Inc., as voting trustee of the First
Beacon Voting Trust, and any other entity that is an Affiliate of Beacon Capital
Partners, L.P. that becomes a trustee of the First Beacon Voting Trust or the
Second Beacon Voting Trust, if formed, and any successors thereto.
"Beacon Voting Trust" means, collectively, the First Beacon Voting Trust
and the Second Beacon Voting Trust.
"Beacon Voting Trust Agreement" means, collectively, (i) the Voting Trust
Agreement, dated as of June 8, 1999, as amended, by and between Beacon Capital
Partners, L.P., as the initial beneficiary of the First Beacon Voting Trust, and
BCP Voting, Inc., as trustee of the First Beacon Voting Trust, an accurate copy
of which has been provided to the Lead Stockholders, and (ii) if the Second
Beacon Voting Trust is formed, the Voting Trust Agreement to be entered into by
and between Beacon Capital Partners, L.P., as the initial beneficiary of the
Second Beacon Voting Trust, and the trustee of the Second Beacon Voting Trust,
provided, that (x) the proposed form of the Voting Trust Agreement for the
Second Beacon Voting Trust and the proposed form of any amendment to the Voting
Trust Agreement for the First Beacon Voting Trust or the Second Beacon Voting
Trust shall be provided to the Lead Stockholders for their review at least ten
days in advance of the earlier of its execution or distribution and (y) the Lead
Stockholders shall have approved in advance of the earlier of its execution or
distribution any provision of the Second Beacon Voting Trust or any amendment to
the Voting Trust
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Agreement for the First Beacon Voting Trust or the Second Beacon Voting Trust
that alters or is otherwise inconsistent with the definition of "Permitted
Voting Trust Transfer" contained in this Agreement or any other provision
affecting those matters addressed in this Agreement.
"Board of Directors" means the Board of Directors of the Company as from
time to time hereafter constituted.
"By-Laws" means the By-Laws of the Company in effect on the date hereof and
as hereafter further amended.
"Capital Stock" means and includes (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock of any Person, including, without limitation, shares of
preferred or preference stock, (ii) all partnership interests (whether general
or limited) in any Person which is a partnership, (iii) all membership interests
or limited liability company interests in any limited liability company and (iv)
all equity or ownership interests in any Person of any other type.
"Certificate of Incorporation" means the Certificate of Incorporation of
the Company as in effect on the date hereof and as hereafter amended, modified,
supplemented or restated.
"Class A Common Stock" means the Class A common stock, par value $0.01 per
share, of the Company.
"Class B Common Stock" means the Class B common stock, par value $0.01 per
share, of the Company.
"Common Stock" means the Class A Common Stock and Class B Common Stock or,
if the Company's common stock ceases to be so designated, the common stock, par
value $0.01 per share, of the Company.
"Company" means Wyndham International, Inc., a Delaware corporation, and
any successor thereto.
"Equity Securities" means the Common Stock and Preferred Stock and any
other securities convertible into, exercisable for or exchangeable with Common
Stock or Preferred Stock and other equity security issued by the Company.
"First Beacon Voting Trust" means the Beacon Capital Partners, L.P. Voting
Trust.
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"Lead Stockholders" means the Apollo Stockholder and the Xxx Stockholder,
provided that if either of the Lead Stockholders and its respective Affiliates
cease to collectively beneficially own at least 10% of the shares of Common
Stock (including shares of Common Stock issuable upon conversion of securities
convertible, exchangeable able or exercisable for shares of Common Stock)
beneficially owned by such Lead Stockholder and its Affiliates immediately
following the closing of the transactions contemplated by the Securities
Purchase Agreement, then such Lead Stockholder shall cease to be a Lead
Stockholder.
"Xxx Director Percentage" means (i) the total number of shares of Common
Stock (including, without duplication, shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares of
Common Stock) beneficially owned by the Xxx Investors (excluding open market
purchases) divided by (ii) the total number of shares of Common Stock
(including, without duplication, shares of Common Stock issuable upon conversion
of securities convertible, exchangeable or exercisable for shares of Common
Stock) beneficially owned by the Apollo Investors and the Xxx Investors
(excluding open market purchases).
"Xxx Investors" means Xxxxxx X. Xxx Equity Fund IV, L.P., Xxxxxx X. Xxx
Foreign Fund IV, L.P., Xxxxxx X. Xxx Charitable Investment L.P., THL-CCI Limited
Partnership, the Beacon Stockholder and their respective Permitted Assignees and
Permitted Third Party Transferees.
"Xxx Stockholder" means THL Equity Advisors IV, LLC, in its capacity as
general partner of Xxxxxx X. Xxx Equity Fund IV, L.P.
"Permitted Assignee" shall have the same meaning as set forth in the
Securities Purchase Agreement.
"Permitted Beacon Voting Trust Transfer" means a transfer of Shares through
a termination of the Beacon Voting Trust on or after the second anniversary of
the date of this Agreement that complies with each of the following
requirements: (i) the termination shall be made pursuant to Section 15(a)(iv)
of the Beacon Voting Trust Agreement at the request of beneficiaries of the
Beacon Voting Trust that shall not include the Beacon Stockholder or any Beacon
Affiliate, such termination shall not have been directly or indirectly proposed,
solicited or encouraged by the Beacon Stockholder (other than the required
action as trustee under such Section 15(a)(iv)) or by any Beacon Affiliate and
the Beacon Stockholder and the Beacon Affiliates shall have used their
reasonable efforts to discourage such termination; (ii) the Shares so
transferred shall be converted into shares of Series A Preferred Stock, (iii)
any shares of Series A Preferred Stock to be received in connection with such
termination by the Beacon Stockholder or by any Beacon Affiliate shall remain
subject to the transfer, conversion and other restrictions of this Agreement and
the Beacon Stockholder and any such Beacon Affiliate shall execute
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any agreement required under Section 3.3 of this Agreement to evidence the
foregoing; (iv) each of the transferees of such Shares shall have acknowledged
in form and substance satisfactory to the Lead Stockholders such transferee's
agreement to be bound by Section 5.1(b) of this Agreement; and (v) such
termination and the transfer of Shares made in connection therewith shall be
made in compliance with all applicable law.
"Permitted Third Party Transferee" shall have the same meaning as set forth
in the Securities Purchase Agreement.
"Person" means an individual or a corporation, association, partnership,
limited liability company, joint venture, organization, business, trust or any
other entity or organization, including a government or any subdivision or
agency thereof.
"Preferred Stock" means the Series A Preferred Stock and the Series B
Preferred Stock.
"Pro Rata Portion" means, with reference to any Stockholder at any time, a
fraction, the numerator of which is the number of votes represented by the
Shares and the Class B Common Stock then issued and outstanding and held by such
Stockholder, and the denominator of which is the aggregate number of votes
represented by the Shares and the Class B Common Stock then issued and
outstanding and held by the Stockholders taken together.
"Registrable Securities" means (i) any shares of Class B Common Stock
issued or issuable upon conversion of any of the Shares, (ii) any shares of
Series A Preferred Stock issued or issuable upon conversion of the Shares, (iii)
any shares of Class A Common Stock issued or issuable upon conversion of the
Series A Preferred Stock described in clause (ii) above, and (iv) any securities
issued or issuable with respect to any Series A Preferred Stock, Series B
Preferred Stock, Class A Common Stock or Class B Common Stock described in
clauses (i), (ii) and (iii) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation, reorganization or otherwise.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of February 18, 1999, by and among the Company and the
persons listed on the signature pages thereof.
"Restated Certificate of Incorporation" means the Restated Certificate of
Incorporation of the Company, as proposed to be filed with the Secretary of
State of the State of Delaware on the date of the Closing under the Securities
Purchase Agreement.
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"Required Investor Director Percentage" means 1.0 divided by the total
number of Class B directors of the Company that may be elected pursuant to
Section V(D) of the Restated Certificate of Incorporation.
"Second Beacon Voting Trust" means, collectively, the Beacon Capital
Partners, L P. Voting Trust II and the Beacon Capital Partners, L.P. Voting
Trust III, in each case if formed.
"Securities Act" means, as of any date, the Securities Act of 1933, as
amended, or any similar Federal statute then in effect and superseding such act,
and any reference to a particular section thereof shall include a reference to
the comparable section, if any, of any such similar Federal statute, and the
rules and regulations thereunder.
"Series A Preferred Stock" means the Series A Convertible Preferred Stock,
par value $0.01 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred Stock,
par value $0.01 per share, of the Company.
"Shares" shall have the meaning set forth in the preamble of this
Agreement; provided, however, that unless the context otherwise requires,
references in this Agreement to the "Shares" shall be deemed to include
additional shares of Series B Preferred Stock that are issued pursuant to the
Certificate of Designation for such Preferred Stock.
"Stockholders" shall mean (i) the Stockholders named on the signature page
hereto and (ii) each Third Party Transferee who becomes a party to or bound by
the provisions of this Agreement in accordance with the terms hereof, in each
case for so long as such person continues to hold Equity Securities in the
Company..
"Third Party Transferee" has the meaning specified in Section 3.2.
"Voting Stock" means Capital Stock of any class or classes, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote in the
election of directors (or Persons performing similar functions).
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Article 2. Board of Directors
Section 2.1. Board of Directors. (a) For so long as this Agreement is in
effect, each of the Stockholders shall vote all of the Voting Stock owned or
held of record by such Stockholder so as to elect, and to continue in office,
each of the directors of the Company designated by the Lead Stockholders. So
long as the Stockholders are entitled to elect eight Class B directors pursuant
to the Restated Certificate of Incorporation, the Apollo Stockholder shall have
the right to designate four Class B directors of the Company and the Xxx
Stockholder shall have the right to designate four Class B directors of the
Company. In the event that the number of Class B directors of the Company that
the Stockholders are entitled to elect is reduced to below eight pursuant to
Section V(D) of the Restated Certificate of Incorporation, (i) the number of
Class B directors that the Xxx Stockholder shall be entitled to designate shall
be equal to the Xxx Director Percentage divided by the Required Investor
Director Percentage (rounded up or down to the nearest integer) and (ii) the
number of Class B directors that the Apollo Stockholder shall be entitled to
designate shall be equal to the total number of Class B directors of the Company
that the Stockholders are entitled to elect pursuant to Section V(D) of the
Restated Certificate of Incorporation minus the number of Class B directors that
the Xxx Stockholder is entitled to designate pursuant to this Section 2.1(a).
(b) If either of the Lead Stockholders shall notify the other Stockholders
of its desire to remove, with or without cause, any director of the Company
previously designated by it, each Stockholder shall vote all of the shares of
Voting Stock owned or held by such Stockholder and take all other necessary
actions to cause the removal of any director designated by such Lead Stockholder
pursuant to Section 2.1(a).
(c) In the event that any designee of either Lead Stockholder shall for any
reason cease to serve as a member of the Board of Directors during his term of
office, the resulting vacancy on the Board of Directors will be filled by a
representative designated by such Lead Stockholder.
Article 3. Restrictions on Transfer
Section 3.1. Restrictions on Transfer.
(a) Each Stockholder agrees that for a period of five years following the
date of this Agreement, such Stockholder will not, directly or indirectly,
offer, sell, transfer, assign or otherwise dispose of (or make any exchange,
gift, assignment or pledge of) (collectively, for purposes of Articles 3 and 4
only, a "transfer") any of its Shares, any shares of Common Stock or Preferred
Stock issuable upon conversion of Shares, or options, warrants or rights to
subscribe for or purchase Shares, Preferred Stock or
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Common Stock that may be issued hereafter to such Stockholder, except as
provided in this Article 3. In addition to the other restrictions contained in
this Article 3, each Stockholder agrees that it will not, directly or
indirectly, transfer any of its Shares or any shares of Common Stock or
Preferred Stock issuable upon conversion of Shares except as permitted under the
Securities Act and other applicable securities laws.
(b) Any attempt by any Stockholder to transfer any Shares and any Common
Stock or Preferred Stock issuable upon conversion of the Shares not in
compliance with this Agreement shall be null and void. Without limiting the
foregoing, it is expressly understood and agreed that any transfer of Shares by
the Beacon Voting Trust that is not the Permitted Beacon Voting Trust Transfer
or a transfer otherwise expressly permitted under this Agreement shall be null
and void and not be recorded on the transfer books of the Company.
Section 3.2. Exceptions to Restrictions. The provisions of Section 3.1
shall not apply to any of the following transfers:
(a) Any transfer approved by each of the Lead Stockholders.
(b) Any transfer from any Stockholder to one or more of its respective
Permitted Assignees.
(c) Any transfer of Shares, or Common Stock or Preferred Stock issuable
upon conversion of such Shares, in accordance with Article 4 or 5 hereof.
(d) Any bona fide pledge of the Shares, or Common Stock or Preferred Stock
issuable upon conversion of such Shares, to a bank, financial institution or
other lender.
(e) The Permitted Beacon Voting Trust Transfer.
The exceptions in clauses (a), (b) or (d) above are subject to the
condition that each such transferee referred to therein (each a "Third Party
Transferee") execute (or, in the case of clause (d) above, that the pledging
Stockholder use its reasonable efforts to cause the pledgee referred to therein
to execute prior to any foreclosure of the shares so pledged) the agreement
referred to in Section 3.3 hereof. The provisions of this Agreement shall be
applied to the Shares, including the shares of Common Stock or Preferred Stock
issuable upon conversion of Shares, acquired by any Third Party Transferee of a
Stockholder in the same manner and to the same extent as such provisions were
applicable to such Shares, or Common Stock or Preferred Stock issuable upon
conversion of Shares, in the hands of such Stockholder. Any reference in this
Agreement to the Stockholders shall be deemed to include each Stockholder and
its respective Third Party Transferees.
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No transfer of any Shares, or shares of Common Stock or Preferred Stock
issuable upon conversion of Shares, to a Third Party Transferee shall be
effective unless such transfer is made (i) pursuant to an effective registration
statement under the Securities Act and is qualified under applicable state
securities or blue sky laws or (ii) without registration under the Securities
Act and qualification under applicable state securities or blue sky laws, as a
result of the availability of an exemption from registration and qualification
under such laws, and such Stockholder shall have furnished to the Lead
Stockholders a certificate to that effect; provided, however, that no such
certificate or opinion of counsel shall be required in connection with a
transfer of shares of Common Stock pursuant to Sections 4.1 or 4.2 hereof.
Section 3.3. Binding Effect on Transferees. The obligations of a party
hereto shall be binding upon any transferee to whom Shares or Common Stock or
Preferred Stock issuable upon conversion of such Shares are transferred by such
party, whether or not such transfer is permitted under the terms of this
Agreement; provided that the foregoing shall not apply to (a) transferees
(other than the Beacon Affiliates) pursuant to the Permitted Beacon Voting Trust
Transfer, (b) transferees pursuant to transfers permitted under Section 3.2(c)
or (c) transferees for which the transfer occurs following the fifth anniversary
of the date of this Agreement (transferees permitted under clause (a), (b) or
(c), collectively, the "Exempted Transferees"). Prior to consummation of any
such transfer other than to an Exempted Transferee, such party shall cause the
transferee to execute an agreement in form and substance reasonably satisfactory
to the Lead Stockholders, providing that such transferee shall be bound by and
shall fully comply with the terms of this Agreement.
Section 3.4. Notifications Regarding Transfers. To the extent that any
Stockholder proposes a transfer pursuant to Section 3.2, such Stockholder shall
provide notice to the Lead Stockholders at least ten Business Days prior to the
proposed transfer date of the number of Shares proposed to be transferred. Not
less that two Business Days prior to a proposed transfer date requiring the
approval of the Lead Stockholders, the Lead Stockholders shall notify such
Stockholder of whether the transfer has been approved, it being agreed and
understood that the Permitted Beacon Voting Trust Transfer shall not require
such approval.
Section 3.5. Restrictions on Conversion. Each Stockholder understands and
agrees that, for a period of five years following the date of this Agreement,
such Stockholder will not convert any Shares into shares of Common Stock or
Series A Preferred Stock without the consent of each of the Lead Stockholders,
except in connection with (i) an exercise of such Stockholder's rights under
Section 4.1 in connection with a sale of Shares by one of the Lead
Stockholders, (ii) a sale of Registrable Securities pursuant to Section 5.1 or
(iii) the Permitted Beacon Voting Trust Transfer or a subsequent conversion of
shares of Series A Preferred Stock received thereunder (other than by a Beacon
Affiliate).
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Article 4. Tag-Along Rights; Drag-Along Rights
Section 4.1. Tag-Along Rights.
(a) Notwithstanding anything in this Agreement to the contrary, except in
the case of (i) transfers by the Stockholders to a Third Party Transferee
referred to in Section 3.2(b), (c), (d) and (e) hereof, (ii) transactions
where rights are exercised pursuant to Section 4.2 hereof and (iii) sales
pursuant to Article 5 hereof or in connection with a sale pursuant to Rule 144
under the Securities Act of 1933, each Stockholder shall refrain from effecting
any transfer of Shares, Series A Preferred Stock or Class B Common Stock unless,
prior to the consummation thereof, the other Stockholders shall have been
afforded the opportunity to join in such transfer on a pro rata basis, as
provided in this Section 4.1 (each such Stockholder, a "Tag-Along Person").
(b) Prior to consummation of such proposed transfer, the Stockholder
proposing a transfer shall cause the person or group that proposes to acquire
such shares (the "Proposed Purchaser") to offer in writing (the "Tag-Along
Offer") to purchase Shares, Series A Preferred Stock or Class B Common Stock
owned by the Tag-Along Person, such that the number of Shares, Series A
Preferred Stock or Class B Common Stock so offered to be purchased from the
Tag-Along Person shall be equal to the product obtained by multiplying the
aggregate number of Shares, Series A Preferred Stock or Class B Common Stock
proposed to be purchased by the Proposed Purchaser by such Tag-Along Person's
Pro Rata Portion. If the Purchase Offer is accepted by any Tag-Along Person,
then the number of Shares, Series A Preferred Stock or Class B Common Stock to
be sold to the Proposed Purchaser by the Stockholder proposing the transfer,
shall be reduced by the aggregate number of Shares, Series A Preferred Stock or
Class B Common Stock to be purchased by the Proposed Purchaser from such
Tag-Along Person pursuant thereto. Such purchase shall be made on the same terms
and conditions (including timing of receipt of consideration) as the Proposed
Purchaser shall have offered to purchase Shares, Series A Preferred Stock or
Class B Common Stock to be sold by the Stockholder who proposed the transfer
(net, in the case of any options, warrants or rights, of any amounts required to
be paid by the holder upon exercise thereof). The Tag-Along Person shall have 20
days from the date of receipt of the Purchase Offer during which to accept such
Purchase Offer, and the closing of such purchase shall occur within 30 days
after such acceptance or at such other time as the Tag-Along Person and the
Proposed Purchaser may agree.
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Section 4.2. Drag-Along Rights.
(a) If both of the Lead Stockholders propose a transfer in connection with
a sale or exchange, whether directly or pursuant to a merger, consolidation or
otherwise (a "Drag- Along Sale"), the Lead Stockholders may require all other
Stockholders to sell all Shares proposed to be sold therein ("Drag-Along
Rights") then held by every Stockholder, for the same consideration and
otherwise on the same teens and conditions (including timing of receipt of
consideration) as the sale by Lead Stockholders; provided, however, that if
either of the Lead Stockholders and its respective Affiliates cease to
collectively beneficially own at least 20% of the shares of Common Stock
(including shares of Common Stock issuable upon conversion of securities
convertible, exchangeable or exercisable for shares of Common Stock)
beneficially owned by them immediately following the closing of the transactions
contemplated by the Securities Purchase Agreement, Stockholders collectively
holding more than 50% of the voting power represented by the outstanding Shares
and shares of Class B Common Stock (the "Majority Stockholders") shall have the
ability to exercise the Drag-Along Rights described in this Section 4.2.
(b) The Lead Stockholders or the Majority Stockholders, as applicable,
shall provide written notice of such Drag-Along Sale to the other Stockholders
(a "Drag-Along Notice") not later than the 15th day prior to the proposed
Drag-Along Sale. The Drag-Along Notice shall identify the transferee, the
number of Shares and/or shares of Class B Common Stock to be transferred, the
consideration for which a transfer is proposed to be made (the "Drag-Along Sale
Price(s)") and all other material terms and conditions of the Drag-Along
Sale. Subject to Section 4.2(d), each Stockholder shall be required to
participate in the Drag-Along Sale on the terms and conditions set forth in the
Drag-Along Notice and to tender all its Shares and shares of Class B Common
Stock as set forth below. The price(s) payable in such transfer shall be the
Drag-Along Sale Price(s). Not later than the 10th day following the date of
the Drag-Along Notice (the "Drag-Along Notice Period"), each of the Stockholders
shall deliver to a representative of Lead Stockholders or the Majority
Stockholders, as applicable, designated in the Drag-Along Notice certificates
representing all the Shares and shares of Class B Common Stock beneficially
owned and held by such Stockholder, duly endorsed, together with all other
documents required to be executed in connection with such Drag-Along Sale, or if
such delivery is not permitted by applicable law, an unconditional agreement to
deliver such shares pursuant to this Section 4.2 at the closing for such
Drag-Along Sale against delivery to such Stockholder of the consideration
therefor.
(c) The Lead Stockholders or the Majority Stockholders, as applicable,
shall have a period of 90 days from the date of receipt of the Drag-Along Notice
to consummate the Drag-Along Sale on the terms and conditions set forth in such
Drag-Along Sale Notice. If the Drag-Along Sale shall not have been consummated
during such period, the
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Lead Stockholders or the Majority Stockholders, as applicable, shall return to
each of the Stockholders all certificates or other evidence of title and
ownership representing shares that such Stockholders delivered for transfer
pursuant hereto, together with any documents in the possession of the Lead
Stockholders or the Majority Stockholders, as applicable, executed by the other
Stockholders in connection with such proposed transfer, and all the restrictions
on transfer contained in this Agreement or otherwise applicable at such time
with respect to shares owned by the Stockholders shall again be in effect.
(d) Concurrently with the consummation of the transfer of shares pursuant
to this Section 4.2, the Lead Stockholders or the Majority Stockholders, as
applicable, shall give notice thereof to all Stockholders, shall remit to each
of the Stockholders who have surrendered their certificates or other evidence of
title and ownership the total consideration (by bank or certified check) for the
shares transferred pursuant hereto and shall furnish such other evidence of the
completion and time of completion of such transfer and the terms thereof as may
be reasonably requested by such Stockholders.
Article 5. Registration Rights
Section 5.1. Registration Rights.
(a) Each of the Stockholders shall be entitled to the benefits of, and
shall be bound by the obligations of, the Registration Rights Agreement with
respect to any Registrable Securities held by such Stockholder as if the
Stockholder were a party to the Registration Rights Agreement; provided,
however, that (i) any request for a Required Registration (as such term is
defined in the Registration Rights Agreement) pursuant to Section 2.1 (a) of the
Registration Rights Agreement made on or prior to the third a anniversary of the
date of this Agreement shall only be made by or with the consent of both of the
Lead Stockholders, (ii) any request for a Required Registration pursuant to
Section 2.1(a) of the Registration Rights Agreement made during the period
following the third anniversary of the date of this Agreement through the fifth
anniversary of the date of this Agreement shall only be made by the Apollo
Stockholder, the Xxx Stockholder or the Beacon Stockholder and (iii) any request
for a Shelf (as such term is defined in the Registration Rights Agreement)
pursuant to Section 2.1(a) of the Registration Rights Agreement made on or
prior to the fifth anniversary of the date of this Agreement shall only be made
by or with the consent of both of the Lead Stockholders. Notwithstanding the
foregoing, each of the Stockholders shall be entitled to exercise its rights to
include its Registrable Securities in a registration effected by the Company
pursuant to Section 2.1(b) of the Registration Rights Agreement if such
registration is a Required Registration made in accordance with the immediately
preceding sentence or if either Lead Stockholder is including Registrable
Securities in such registration. Each of the Lead Stockholders agrees for the
benefit of the other Lead Stockholder that it will not, without the approval of
the other Lead Stockholder, include its Registrable Securities in a
12
registration effected by the Company pursuant to Section 2.1(b) of the
Registration Rights Agreement during the three year period following the date of
this Agreement.
(b) Notwithstanding anything else in this Agreement or in the Registration
Rights Agreement to the contrary, in the event that the Permitted Beacon Voting
Trust Transfer occurs, none of the shares of Preferred Stock or Common Stock
that are received by the beneficiaries of the Beacon Voting Trust in connection
therewith or are issued or issuable upon conversion of such shares or shares
received upon such conversion shall be Registrable Securities, other than those
shares that are held by the Beacon Stockholder or by a Beacon Affiliate and
remain subject to the transfer, conversion and other restrictions of this
Agreement. The Beacon Stockholder, in its capacities as the trustee and initial
beneficiary of the First Beacon Voting Trust and the Second Beacon Voting Trust,
hereby consents and agrees to be bound by the provisions of this Section 5.1(b)
on behalf of itself and all future beneficiaries of the Beacon Voting Trust and
acknowledges and agrees that it has the sole responsibility to notify all such
beneficiaries or transferees of Shares owned by the Beacon Voting Trust of the
terms of this Section 5.1(b) and the fact that they are bound thereby.
Article 6. Miscellaneous
Section 6.1. Further Actions; Cooperation. Each of the Stockholders agrees
to use its reasonable efforts to take, or cause to be taken, all actions and to
do, or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable in connection with the
transactions contemplated by this Agreement. Without limiting the generality of
the foregoing, each of the Stockholders (i) acknowledges that the Stockholders
will prepare and file with the Securities and Exchange Commission filings under
the Securities Exchange Act of 1934, as amended' and the rules and regulations
promulgated thereunder (the "Exchange Act"), including under Section 13(d) of
the Exchange Act, relating to their beneficial ownership of the Securities and
(ii) agrees to use its reasonable efforts to assist and cooperate with the other
parties in promptly preparing, reviewing and executing any such filings under
the Exchange Act, including any amendments thereto.
Section 6.2. Successors and Assigns. Except as otherwise provided herein,
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. No Stockholder may assign any of its rights
hereunder to any Person other than a transferee that has complied in all
respects with the requirements of this Agreement (including, without limitation,
Section 3.4 hereof) If any transferee of any Stockholder shall acquire any
Shares or Common Stock issuable upon conversion of such Shares, in any manner,
whether by operation of law or otherwise, such shares shall be held subject to
all of the terms of this Agreement, and by taking and holding such shares such
Person
13
shall be entitled to receive the benefits of and be conclusively deemed to have
agreed to be bound by and to comply with all of the terms and provisions of this
Agreement.
Section 6.3. Representatives. Each of the Stockholders hereby designates
and appoints (and each Third Party Transferee of each such Stockholders is
hereby deemed to have so designated and appointed) the Lead Stockholders to
serve as the representatives of each such Stockholder to administer and make
determinations as to matters arising or contemplated by the Securities Purchase
Agreement and related documentation, including without limitation
indemnification obligations, disputes and other rights and obligations. Each of
the Stockholders hereby agrees and acknowledges that the Lead Stockholders shall
be the only persons authorized to take any action so required, authorized or
contemplated by the Securities Purchase Agreement by each such person. Each such
person hereby authorizes (and each such Third Party Transferee shall be deemed
to have authorized) the other parties hereto to disregard any notice or other
action taken by such person pursuant to the Securities Purchase Agreement except
for the Lead Stockholders. The other parties hereto are and will be entitled to
rely on any action so taken by the Lead Stockholders.
Section 6.4. Amendment; Modification; Waiver. No provision of this
Agreement may be amended, modified or waived except by an instrument in writing
executed by the Majority Stockholders at the time of such proposed amendment,
modification or waiver; provided, however. that, so long as either of the Lead
Stockholders and their respective Affiliates beneficially own at least 20% of
the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares of
Common Stock) initially owned by such Stockholders at the closing of the
transactions contemplated by the Securities Purchase Agreement, this Agreement
may not be amended or modified without such Lead Stockholders consent.
Section 6.5. Notices. All notices and other communications provided for
hereunder shall be in writing by hand delivery, telex, telecopier, or any
courier guaranteeing overnight delivery (i) if to the Stockholders as of the
date hereof, the address set forth next to the Stockholder's name on the
signature pages hereof, with a copy to Xxxxxxx X. Xxxx, Esq., telecopier number
(000) 000-0000, and (ii) with respect to each Stockholder who becomes such after
the date hereof, the address of such Stockholder in the stock records of the
Company. All such communications shall be deemed to have been given or made when
so delivered by hand or sent by telecopy, or three business days after being so
mailed.
Section 6.6. Entire Agreement; Governing Law.
(a) This Agreement and the other writings referred to herein or delivered
pursuant hereto which form a part hereof contain the entire agreement among the
parties
14
hereto with respect to the subject transactions contemplated hereby and
supersede all prior oral and written agreements and memoranda and undertakings
among the parties hereto with regard to this subject matter
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PRINCIPLES THEREOF).
Section 6.7. Injunctive Relief. The Stockholders acknowledge and agree
that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to, an injunction, restraining order or other equitable relief from any
court of competent jurisdiction, restraining any Stockholder from committing
any violations of the provisions of this Agreement.
Section 6.8. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 6.9. Recapitalizations; Exchanges, Etc. Affecting the Shares of
Common Stock; New Issuances. The provisions of this Agreement shall apply, to
the full extent set forth herein with respect to the Shares and Common Stock
and Preferred Stock issuable upon conversion of such Shares and to any and all
equity or debt securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets, or otherwise) which
may be issued in respect of, in exchange for, or in substitution of, such equity
or debt securities and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, reclassifications, recapitalizations,
reorganizations and the like occurring after the date hereof.
Section 6.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15
Section 6.11. Jurisdiction; Forum. With respect to any suit, action or
proceeding ("Proceeding") arising out of or relating to this Agreement, each of
the parties hereto hereby irrevocably:
(a) submits to the exclusive jurisdiction of the United States District
Court for the Southern District of New York, the United States District Court
for the District of Delaware, or any state court located in the State of
Delaware, County of Newcastle (the "Selected Courts") and waives any objection
to venue being laid in the Selected Courts whether based on the grounds of forum
non conveniens or otherwise;
(b) consents to service of process in any Proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, or by
recognized international express carrier or delivery service, to such party at
its respective address referred to in Section 6.4 hereof; provided, however,
that nothing herein shall affect the right of any party hereto to serve process
in any other manner permitted by law; and
(c) waives, to the fullest extent permitted by law, any right it may have
to a trial by jury in any Proceeding.
Section 6.12. Termination. Upon the mutual consent of all of the parties
hereto or at such earlier time as each of the Lead Stockholders and its
respective Affiliates ceases to collectively beneficially own at least 10% of
the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares of
Common Stock) beneficially owned by such Lead Stockholder and its Affiliates
immediately following the closing of the transactions contemplated by the
Securities Purchase Agreement, this Agreement shall terminate and be of no
further force and effect.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
APOLLO REAL ESTATE
INVESTMENT FUND IV, L.P.
By: Apollo Real Estate Advisors IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc., its General Partner
By: /s/
--------------------------------------
Name:
Title:
Address: c/o Apollo Real Estate Management IV,
L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/
--------------------------------------
Name:
Title:
Address: c/o Apollo Real Estate Management IV,
L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
17
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:_____________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXXXX X. XXX FOREIGN FUND IV, L.P
By: THL Equity Advisors IV, LLC
By:_____________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXXXX X. XXX CHARITABLE
INVESTMENT L.P
By: THL Equity Advisors IV, LLC
By:_____________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:_____________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By:_____________________________________
Name:
Title:
Address: 0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
BCP VOTING, INC., as Trustee for the Beacon
Capital Partners, L.P. Voting Trust
By:_____________________________________
Name:
Title:
Address: 0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
STRATEGIC REAL ESTATE INVESTMENTS I,
L.L.C.
By:_____________________________________
Name:
Title:
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
AIF/THL PAH, LLC
By:_____________________________________
Name:
Title:
Address: c/o Apollo Management IV, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners, its General Partner
By:_____________________________________
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates L.P., a general
partner
By: MSPS/DP, Irc., its general partner
By:_____________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
By: CMS 1995 Investment Partners, L.P.,
a general partner
By: CMS 1995, Inc., its general partner
By:_____________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
CMS CO-INVESTMENT
SUBPARTNERSHIP a Delaware general
partnership
By: CMS Co-Investment Partners, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates,
L.P., a Delaware limited partnership
By: MSPS/Co-Investment, Inc.,
a Delaware corporation
By:_____________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
By: CMS 1997 Investment Partners, L.P.,
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware
corporation
By:_____________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
By: CMS Co-Investment Partners I-Q, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment Associates,
Inc., a Delaware corporation
By:_____________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
By: CMS 1997 Investment Partners, L.P.
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware corporation
By:_____________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
GUAYACAN PRIVATE EQUITY FUND
LIMITED PARTNERSHIP
By:_____________________________________
Name:
Title:
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
CKE ASSOCIATES LLC
By:_____________________________________
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
PW HOTEL I, LLC
By:_____________________________________
Name:
Title:
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx XX 00000
THE DARTMOUTH TRUST
By:_____________________________________
Name:
Title:
Address:
THE BONNYBROOK TRUST
By:_____________________________________
Name:
Title:
Address:
THE FRANKLIN TRUST
By:_____________________________________
Name:
Title:
Address:
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:_____________________________________
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX X. XXX FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
By:_____________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Pursuant to the power of attorney executed by
the persons listed on Schedule I hereto in
favor of, and delivered to, the undersigned
_____________________________________________
Xxxx X. Xxxxxxxx
Attorney-in-fact
Schedule I
State Street Bank & Trust Company as Trustee
of the 1997 Xxxxxx X. Xxx Nominee Trust
Xxxxx X. Xxxxxxx
The 1995 Harkins Gift Trust
Xxxxx X. Xxxxxx
X. Xxxxxx Xxxx
Xxxxxxxx Family Limited Partnership
Xxxxxxx X. XxXxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxxx Family Limited Partnership
Xxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx Xxx 1988 Irrevocable Trust
Xxxxxxx Xxxxxxx Xxx
Xxxxxxx X. Xxxxxx as Custodian for Xxxxx Xxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
XX. Xxxxxxx Xxxxx
