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EXHIBIT 10.14
REGISTRATION RIGHTS AGREEMENT
dated as of May 24, 1996
among
WYNDHAM HOTEL CORPORATION
and
The Other Parties Listed on the Signature Pages Hereto
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made and
entered into as of May 24, 1996, by and among Wyndham Hotel Corporation, a
Delaware corporation (the "Company"), and the other parties signatory hereto.
RECITALS
The parties hereto have entered into, or are equity owners in entities
that have entered into, other agreements which contemplate, among other things,
the execution and delivery of this Agreement by the parties hereto.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement, the
following terms have the following meanings when used herein with
initial capital letters:
Advice: As defined in Section 6 hereof.
Common Stock: The Common Stock, par value $0.01 per
share, of the Company.
Demand Notice: As defined in Section 3 hereof.
Demand Registration: As defined in Section 3 hereof.
GE Registration Rights: The rights to require the Company to
register shares of Common Stock pursuant to the Registration Rights Agreement
dated as of April 29, 1996 among Wyndham Hotel Company Ltd., General Electric
Investment Corporation and the Trustees of General Electric Pension Trust.
Losses: As defined in Section 8 hereof.
Other Equity Securities: Any shares of capital stock of the
Company and any other securities issued by the Company that are exercisable to
purchase, convertible into or exchangeable for shares of capital stock of the
Company that are owned by any party hereto (other than the Company) or any
affiliate of any party hereto (other than the Company), whether acquired prior
to, on or after the date hereof.
Piggyback Registration: As defined in Section 4 hereof.
Prospectus: The prospectus included in any Registration
Statement (including without limitation a prospectus that discloses
information previously omitted from a prospectus filed as part of
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an effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act), 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 such Registration Statement and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Registrable Securities: The Shares, other shares of Common
Stock held by a party that are not already saleable by such party without
registration and all Other Equity Securities, upon the respective original
issuance thereof, and at all times subsequent thereto, until, in the case of
any such security, (i) it is effectively registered under the Securities Act
and disposed of in accordance with the Registration Statement covering it, (ii)
it is saleable by the holder thereof pursuant to Rule 144(k), or (iii) it is
distributed to the public by the holder thereof pursuant to Rule 144.
Registration Expenses: As defined in Section 7 hereof.
Registration Statement: Any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended.
Shares: All shares of Common Stock acquired by any party
hereto (other than the Company) pursuant to (i) the Formation Agreement dated
as of March 10, 1996, among the Company and the other parties identified on the
signature pages thereof, (ii) the Exchange Agreement dated as of March 10, 1996
among Wyndham Hotel Company Ltd., the Company, Wynopt Investment Partnership
Level II, L.P., Wynopt Investment Partnership, L.P. and The Hampstead Group
L.L.C. and joined in by Bedrock Hotel Partners, L.L.C. and (iii) in the case of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an indirect transfer from a party receiving shares of
Common Stock pursuant to the Formation Agreement referred to in clause (i)
above.
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Special Counsel: As defined in Section 7(b) hereof.
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
WEL: Wyndham Employees Ltd., a Texas limited
partnership.
2. WEL Registration. (a) Request for Registration. At any
time after the date hereof, WEL will have the right, exercisable
one time by written notice to the Company (a "WEL Notice"), to
require the Company to register (a "WEL Registration") the
distribution of the Registrable Securities held by WEL to direct or
indirect owners of equity interests in WEL, whether pursuant to the
dissolution of WEL or otherwise, under and in accordance with the
provisions of the Securities Act. A WEL Registration shall not be
considered a Demand Registration (as defined in Section 3(a)
hereof).
(b) Filing and Effectiveness. The Company will file a
Registration Statement relating to any WEL Registration within 60 calendar days
of the date on which the WEL Notice is given and will use all reasonable
efforts to cause the same to be declared effective by the SEC within 120
calendar days of the date on which the WEL Notice is first given. Any request
made pursuant to this Section 2 will specify the number of Registrable
Securities to be registered and will also specify the intended method of
distribution thereof.
3. Demand Registration. (a) Requests for Registration. At
any time and from time to time after the date that is six months following the
date of this Agreement, one or more holders of Registerable Securities will
have the right, by written notice delivered to the Company (a "Demand Notice"),
to require the Company to register (a "Demand Registration") Registrable
Securities under and in accordance with the provisions of the Securities Act;
provided, however, that (i) no such Demand Registration may be required unless
the total amount of Registrable Securities sought to be included in such Demand
Registration has a market value of at least $20,000,000 (calculated based on
the closing sale price of such securities on the principal securities exchange
on which such securities are listed on the business day immediately preceding
the date of the Demand Notice) as of the time a Demand Notice is given and (ii)
no Demand Notice may be given prior to six months after the effective date of
the immediately preceding Demand Registration. Notwithstanding the foregoing, a
good faith decision by a holder to withdraw Registrable Securities from
registration will not affect the Company's obligations hereunder even if the
amount remaining to be registered has a market value of less than $20,000,000
(calculated as aforesaid).
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Subject to the foregoing, there shall be no limit on the number of Demand
Registrations that may be required pursuant to this Agreement.
(b) Filing and Effectiveness. The Company will file a
Registration Statement relating to any Demand Registration within 60 calendar
days of the date on which the Demand Notice is given and will use all
reasonable efforts to cause the same to be declared effective by the SEC within
120 calendar days of the date on which the holders of Registrable Securities
first give the Demand Notice required by Section 3(a) hereof with respect to
such Demand Registration.
All requests made pursuant to this Section 3 will specify the number
of Registrable Securities to be registered and will also specify the intended
methods of disposition thereof.
If any Demand Registration is requested to be effected as a "shelf"
registration by the holders of Registrable Securities demanding such Demand
Registration, the Company will keep the Registration Statement filed in respect
thereof effective for a period of up to six months from the date on which the
SEC declares such Registration Statement effective (subject to extension
pursuant to Sections 5 and 6 hereof) or such shorter period that will terminate
when all Registrable Securities covered by such Registration Statement have
been sold pursuant to such Registration Statement.
Within ten calendar days after receipt of such Demand Notice, the
Company will serve written notice thereof (the "Notice") to all other holders
of Registrable Securities and will, subject to the provisions of Section 3(c)
hereof, include in such registration all Registrable Securities with respect to
which the Company receives written requests for inclusion therein within 20
calendar days after the receipt of the Notice by the applicable holder. The
holders of Registrable Securities will be permitted to withdraw in good faith
all or part of the Registrable Securities from a Demand Registration at any
time prior to the effective date of such Demand Registration, in which event
the Company will promptly amend or, if applicable, withdraw the related
Registration Statement.
(c) Priority on Demand Registration. If Registrable
Securities are to be registered pursuant to a Demand Registration, the Company
shall provide written notice to the other holders of Registrable Securities and
will permit all such holders who request to be included in the Demand
Registration to include any or all Registrable Securities held by such holders
in such Demand Registration. Notwithstanding the foregoing, if the managing
underwriter or underwriters of an underwritten offering to which such Demand
Registration relates advises the holders of Registrable Securities that the
total amount of Registrable Securities that
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such holders intend to include in such Demand Registration is in the aggregate
such as to materially and adversely affect the success of such offering, then
the number of Registrable Securities to be included in such Demand Registration
will, if necessary, be reduced and there will be included in such underwritten
offering the number of Registrable Securities that, in the opinion of such
managing underwriter or underwriters, can be sold without materially and
adversely affecting the success of such offering, allocated pro rata among the
holders of Registrable Securities on the basis of the amount of Registrable
Securities requested to be included therein by each such holder.
(d) Postponement of Demand Registration. The Company will be
entitled to postpone the filing period of any Demand Registration for a
reasonable period of time not in excess of 90 calendar days, if the Company
determines, in the good faith exercise of the business judgment of its Board of
Directors, that such registration and offering could materially interfere with
bona fide financing plans of the Company or would require disclosure of
information, the premature disclosure of which could materially and adversely
affect the Company. If the Company postpones the filing of a Registration
Statement, it will promptly notify the holders of Registrable Securities in
writing when the events or circumstances permitting such postponement have
ended.
4. Piggyback Registration. (a) Right to Piggyback. If at
any time the Company proposes to file a registration statement under the
Securities Act with respect to a primary offering of any class of equity
securities (or securities convertible into, exchangeable for or exercisable for
a class of equity securities of the Company) by the Company (other than a
registration statement (i) on Form ▇-▇, ▇-▇ or any successor form thereto, (ii)
filed in connection with an exchange offer or an offering of securities solely
to the Company's existing stockholders or (iii) filed solely in connection with
an offering made solely to employees of the Company or in connection with a WEL
Registration), then the Company will give written notice of such proposed
filing to the holders of Registrable Securities at least 30 calendar days
before the anticipated filing date. Such notice will offer such holders the
opportunity to register such amount of Registrable Securities as each such
holder may request (a "Piggyback Registration"). Subject to Section 4(b)
hereof, the Company will include in each such Piggyback Registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein. The holders of Registrable Securities will be
permitted to withdraw all or part of the Registrable Securities from a
Piggyback Registration at any time prior to the effective date of such
Piggyback Registration.
(b) Priority on Piggyback Registrations. The Company
will cause the managing underwriter or underwriters of a proposed
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underwritten offering on behalf of the Company to permit holders of Registrable
Securities requested to be included in the registration for such offering to
include therein all such Registrable Securities requested to be so included on
the same terms and conditions as any securities of the Company included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of such offering deliver an opinion to the holders of Registrable
Securities to the effect that the total amount of securities which such holders
and the Company propose to include in such offering is such as to materially
and adversely affect the success of such offering, then the amount of
securities to be included therein for the account of holders of Registrable
Securities (allocated pro rata among such holders on the basis of the
Registrable Securities requested to be included therein by each such holder)
will be reduced (to zero if necessary) to reduce the total amount of securities
to be included in such offering to the amount recommended by such managing
underwriter or underwriters. The managing underwriter or underwriters, applying
the same standard, may also exclude entirely from such offering all
Registerable Securities proposed to be included in such offering to the extent
the Registrable Securities are not of the same class as securities of the
Company included in such offering.
(c) Registration of Securities Other than Registrable
Securities. Without the written consent of the holders of 90% of the
then-outstanding Registrable Securities and an appropriate amendment to this
Agreement pursuant to Section 11 (c), the Company will not grant to any person
the right to request the Company to register any securities of the Company
under the Securities Act, provided, however, that with the consent of the
holders of 66 2/3% of the then-outstanding Registrable Securities, the Company
may grant to any person the same rights as the rights of a holder of
Registrable Securities under this Agreement, either by an amendment making such
person a party to this Agreement or pursuant to a separate agreement. The
parties acknowledge the existence of the GE Registration Rights.
5. Restrictions on Sale by Holders of Registrable Securities. Each
holder of Registrable Securities agrees, if such holder is so requested
(pursuant to a timely written notice) by the managing underwriter or
underwriters in an underwritten offering of any class of securities that
constitutes Registrable Securities, not to effect any public sale or
distribution of any of the Company's securities of such class (except as part
of such underwritten offering), including a sale pursuant to Rule 144, during
the 10-calendar day period prior to, and during the 90- calendar day period
beginning on, the closing date of such underwritten offering.
6. Registration Procedures. In connection with the Company's
registration obligations pursuant to Sections 2, 3 and 4
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hereof, the Company will effect such registrations to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company will as expeditiously as
possible, in each case, to the extent applicable:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and
cause each such Registration Statement to become effective and remain effective
as provided herein; provided, however, that before filing a Registration
Statement or Prospectus or any amendments or supplements thereto (including
documents that would be incorporated or deemed to be incorporated therein by
reference) the Company will furnish to the holders of the Registrable
Securities covered by such Registration Statement, the Special Counsel and the
managing underwriters, if any, copies of all such documents proposed to be
filed, which documents will be subject to the review of such holders, the
Special Counsel and such underwriters, and the Company will not file any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto (including such documents which, upon filing, would or would be
incorporated or deemed to be incorporated by reference therein) to which the
holders of a majority of the Registrable Securities covered by such
Registration Statement, the Special Counsel or the managing underwriter, if
any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 3; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or to such Prospectus as so supplemented.
(c) Notify the selling holders of Registrable Securities, the
Special Counsel and the managing underwriters, if any, promptly, and (if
requested by any such person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC
or any other federal or state governmental authority for
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amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iv) if at any time the representations and warranties of the
Company contained in any agreement contemplated by Section 6(n) hereof
(including any underwriting agreement) cease to be true and correct, (v) of the
receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the occurrence of any event which makes
any statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in a
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, in the case of the
Prospectus, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated or is necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (vii) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If requested by the managing underwriters, if any, or the
holders of a majority of the Registrable Securities being registered, (i)
promptly incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters, if any, and such holder agree
should be included therein as may be required by applicable law and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company will not be required to take any
actions under this Section 6(e) that are not, in the opinion of counsel for the
Company, in compliance with applicable law.
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(f) Furnish to each selling holder of Registrable Securities,
the Special Counsel and each managing underwriter, if any, without charge, at
least one conformed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements (but excluding schedules, all
documents incorporated or deemed incorporated therein by reference and all
exhibits, unless requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities,
the Special Counsel and the underwriters, if any, without charge, as many
copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may request; and the Company hereby consents
to the use of such Prospectus or each amendment or supplement thereto by each
of the selling holders or Registrable Securities and the underwriters, if any,
in connection with the offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
to register or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any , and their respective counsel in
connection with the registration or qualification (or exemption from such
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 seller or underwriter reasonably requests in writing; use
all reasonable efforts to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdiction of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that the Company will not be required to (i) qualify general to do business in
any jurisdiction in which it is not then so qualified or (ii) take any action
that would subject it to general service of process in any such jurisdiction in
which it is not then so subject.
(i) Cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, shall request at
least two business days prior to any sale of Registrable Securities to the
underwriters.
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(j) Use all reasonable efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities within the
United States except as may be required solely as a consequence of the nature
of such selling holder's business, in which case the Company will cooperate in
all reasonable respects with the filing of such Registration Statement and the
granting of such approvals as may be necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section
6(c)(vi) or 6(c)(vii) hereof, prepare a supplement or post-effective amendment
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not 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, in light of the
circumstances under which they were made, not misleading.
(l) Use all reasonable efforts to cause all Registrable
Securities covered by such Registration Statement to be (i) listed on each
securities exchange, if any, on which similar securities issued by the Company
are then listed or, if no similar securities issued by the Company are then so
listed, on the New York Stock Exchange or another national securities exchange
if the securities qualify to be so listed or (ii) authorized to be quoted on
the National Association of Securities Dealers Automated Quotation System
("NASDAQ") or the National Market System of NASDAQ if the securities qualify to
be so quoted; in each case, if requested by the holders of a majority of the
Registrable Securities covered by such Registration Statement or the managing
underwriters, if any.
(m) Prior to the effective date of the first Demand
Registration or the first Piggyback Registration, whichever shall occur first,
(i) engage an appropriate transfer agent and provide the transfer agent with
printed certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number for
the Registrable Securities.
(n) Enter into such agreements (including, in the event of an
underwritten offering, an underwriting agreement in form, scope and substance
as is customary in underwritten offerings) and take all such other actions in
connection therewith (including those requested by the holders of a majority of
the Registrable Securities being sold or,in the event of an underwritten
offering, those requested by the managing underwriters) in order to expedite
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or facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, (i) make such
representations and warranties to the holders of such Registrable Securities
and the underwriters, if any, with respect to the business of the Company and
its subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the holders of a
majority of the Registrable Securities being sold) addressed to such selling
holder of Registrable Securities and each of the underwriters, if any, covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such holders and
underwriters, including without limitation the matters referred to in Section
6(n)(i) hereof; (iii) use its best efforts to obtain "comfort" letters and
updates thereof from the independent certified public accountants of the
Company (and, if necessary, any other certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed to each selling holder of Registrable
Securities and each of the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in
"comfort" letters in connection with underwritten offerings; and (iv) deliver
such documents and certificates as may be requested by the holders of a
majority of the Registrable Securities being sold, the Special Counsel and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or similar agreement entered
into by the Company. The foregoing actions will be taken in connection with
each closing under such underwriting or similar agreement as and to the extent
required thereunder.
(o) Make available for inspection by a representative of the
holders of Registrable Securities being sold, any underwriter participating in
any disposition of Registrable Securities, and any attorney or accountant
retained by such selling holders or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the officers, directors and employees of the Company
and its subsidiaries to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in
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connection with such Registration Statement; provided, however, that any
records, information or documents that are designated by the Company in writing
as confidential at the time of delivery of such records, information or
documents will be kept confidential by such persons unless (i) such records,
information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of such records, information or documents is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, or (iii) disclosure of such records,
information or documents, in the opinion of counsel to such person, is
otherwise required by law (including, without limitation, pursuant to the
requirements of the Securities Act).
(p) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 calendar days after the end of any 12-month period (or 90 calendar days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts underwritten
offering, and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company, after the
effective date of a Registration Statement, which statements shall cover said
12-month period.
(q) In connection with any underwritten offering, cause
appropriate members of its management to cooperate and participate on a
reasonable basis in the underwriters' "road show" conferences related to such
offering.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company
may exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
Each holder of Registrable Securities will be deemed to have agreed by
virtue of its acquisition of such Registrable Securities that, upon receipt of
any notice from the Company of the occurrence of any event of the kind
described in Section 6(c)(ii), 6(c)(iii), 6(c)(v), 6(c)(vi) or 6(c)(vii)
hereof, such holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(k) hereof, or until it is advised in
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writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference in such
Prospectus. In the event the Company shall give any such notice, the time
period prescribed in Section 3(a) hereof will be extended by the number of days
during the time period from and including the date of the giving of such notice
to and including the date when each seller of Registrable Securities covered by
such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 6(k) hereof or (y)
the Advice.
7. Registration Expenses. (a) All fees and expenses incident to the
performance of or compliance with this Agreement by the Company will be borne
by the Company whether or not any of the Registration Statements become
effective, provided, however, that with respect to any Registration Statement
in connection with a Demand Registration required to be filed by the Company
prior to the date that is one year from the date of this Agreement, the holders
of Registrable Securities delivering the Demand Notice, pro rata based on the
amount of Registrable Securities included therein, shall pay up to $250,000
($125,000 in the case of a shelf registration) of the fees and expenses
incurred by the Company in connection therewith and the Company shall bear the
remainder. Such fees and expenses will include, without limitation, (i) all
registration and filing fees (including without limitation fees and expenses
(x) with respect to filings required to be made with the National Association
of Securities Dealers, Inc. and (y) of compliance with securities or "blue sky"
laws (including without limitation fees and disbursements of counsel for the
underwriters or selling holders in connection with "blue sky" qualifications of
the Registrable Securities and determination of the eligibility of the
Registrable Securities for investment under the laws of such jurisdictions as
the managing underwriters, if any, or holders of a majority of the Registrable
Securities being sold may designate)), (ii) printing expenses (including
without limitation expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is requested by the
holders of a majority of the Registrable Securities included in any
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Company and the Special Counsel for
the sellers of the Registrable Securities, (v) fees and disbursements of all
independent certified public accountants referred to in Section 6(n)(iii)
hereof (including the expenses of any special audit and "comfort" letters
required by or incident to such performance), (vi) any fees and expenses of any
"qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule E to the By-laws
of the National Association of Securities Dealers, Inc., (vii) Securities Act
liability
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15
insurance if the Company so desires such insurance, and (viii) fees and
expenses of all other persons retained by the Company. In addition, the Company
will pay its internal expenses (including without limitation all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and the fees
and expenses of any person, including special experts, retained by the Company.
In no event, however, will the Company be responsible for any underwriting
discount or selling commission with respect to any sale of Registrable
Securities pursuant to this Agreement.
(b) In connection with any Demand Registration or Piggyback
Registration hereunder, the Company will reimburse the holders of the
Registrable Securities being registered in such registration for the reasonable
fees and disbursements of not more than one counsel (the "Special Counsel"),
together with appropriate local counsel, chosen by the holders of a majority of
the Registrable Securities being registered.
8. Indemnification. (a) Indemnification by the Company.
The Company will, without limitation as to time, indemnify and hold harmless,
to the fullest extent permitted by law, each holder of Registrable Securities
registered pursuant to this Agreement, the officers, directors and agents and
employees of each of them, each person who controls such holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, agents and employees of any such controlling
person, from and against all losses, claims, damages, liabilities, costs
(including without limitation the costs of investigation and attorneys' fees)
and expenses (collectively, "Losses"), as incurred, arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based solely upon information
furnished in writing to the Company by such holder expressly for use therein;
provided, however, that the Company will not be liable to any holder of
Registrable Securities to the extent that any such Losses arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if either (A) (i) such
holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such holder of a Registrable
Security to the person asserting the claim from which such Losses arise and
(ii) the Prospectus would have completely corrected such untrue
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16
statement or alleged untrue statement or such omission or alleged omission; or
(B) such untrue statement or alleged untrue statement, omission or alleged
omission is completely corrected in an amendment or supplement to the
Prospectus previously furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, and such holder thereafter fails
to deliver such Prospectus as so amended or supplemented prior to or
concurrently with the sale of a Registrable Security to the person asserting
the claim from which such Losses arise.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities will furnish
to the Company in writing such information as the Company reasonably requests
for use in connection with any Registration statement or Prospectus and will
indemnify, to the fullest extent permitted by law, the Company, its directors
and officers, agents and employees, each person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such
controlling persons, from and against all Losses arising out of or based upon
any untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or arising out of or based upon
any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
so furnished in writing by such holder to the Company expressly for use in such
Registration statement or Prospectus and was relied upon by the Company in the
preparation of such Registration Statement, Prospectus or preliminary
prospectus. In no event will the liability of any selling holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any person
shall become entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All fees
and expenses (including any fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding)
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17
will be paid to the indemnified party, as incurred, within five calendar days
of written notice thereof to the indemnifying party (regardless of whether it
is ultimately determined that an indemnified party is not entitled to
indemnification hereunder). The indemnifying party will not consent to entry of
any judgment or enter into any settlement or otherwise seek to terminate any
action or proceeding in which any indemnified party is or could be a party and
as to which indemnification or contribution could be sought by such indemnified
party under this Section 8, unless such judgment, settlement or other
termination includes as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release, in form and
substance satisfactory to the indemnified party, from all liability in respect
of such claim or litigation for which such indemnified party would be entitled
to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party under Section 8(a) or 8(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, will, jointly and severally, contribute to
the amount paid or payable by such indemnified party as a result of such
Losses, in such proportion as is appropriate to reflect the relative fault of
the indemnifying party or indemnifying parties, on the one hand, and such
indemnified party, on the other hand, in connection with the actions, statement
or omissions that resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such indemnifying party or
indemnifying parties, on the one hand, and such indemnified party, on the other
hand, will be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been
taken or made by, or related to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses will
be deemed to include any legal or other fees or expenses incurred by such party
in connection with any action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provision of this Section 8(d), an indemnifying
party that is a selling holder of Registrable Securities will not be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by
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18
such indemnifying party and distributed to the public were offered to the
public exceed the amount of any damages which such indemnifying party has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
the Company hereunder will be in addition to any liability the Company may
otherwise have hereunder or otherwise. The provisions of this Section 8 will
survive so long as Registrable Securities remain outstanding, notwithstanding
any transfer of the Registrable Securities by any holder thereof or any
termination of this Agreement.
9. Rule 144. The Company will file the reports required to be filed
by it under the Securities Act and the Exchange Act, and will cooperate with
any holder of Registrable Securities (including without limitation by making
such representations as any such holder may reasonably request), all to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemptions provided by Rule 144. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 9 will be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
10. Underwritten Registrations. If any of the Registrable Securities
covered by any Demand Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the holders of a majority of the
Registrable Securities included in the Demand Notice; provided, that such
investment banker or manager shall be reasonably satisfactory to the Company.
If any Piggyback Registration is an underwritten offering, the Company will
have the right to select the investment banker or investment bankers and
managers to administer the offering.
11. Miscellaneous. (a) Remedies. In the event of a breach by the
Company of its obligations under this Agreement, each holder of Registrable
Securities, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further
-18-
19
agrees that, in the event of any action for specific performance in respect of
such breach, it will waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not, as of
the date hereof, and will not, on or after the date hereof, enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The parties to this Agreement, however,
acknowledge the existence of the GE Registration Rights.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
holders of 90% of the then-outstanding Registrable Securities, subject,
however, to the proviso of Section 4(c). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other holders of
Registrable Securities may be given by holders of at least 75% of the
Registrable Securities being sold by such holders; provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing and will be deemed given
(i) when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier, or (iii) one business day after being deposited with a reputable
next-day courier, to the parties as follows:
(x) if to the Company, initially at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Telecopier Number (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel, and thereafter at such other address, notice of
which is given to the holders of Registrable Securities in accordance with the
provisions of this Section 11(d); and
(y) if to any holder of Registrable Securities,
at the most current address given by such holder to the Company in accordance
with the provisions of this Section 11(d).
(e) Owner of Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to maintain, a stock
book with respect to the Common Stock, in which
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20
all transfers of Registrable Securities of which the Company has received
notice will be recorded. The Company may deem and treat the person in whose
name Registrable Securities are registered in the stock book of the Company as
the owner thereof for all purposes, including without limitation the giving of
notices under this Agreement.
(f) Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the successors and assigns of each of the
parties (including any pledgee acquiring securities by foreclosure) and will
inure to the benefit of each holder of any Registrable Securities.
Notwithstanding the foregoing, no transferee will have any of the rights
granted under this Agreement (i) until such transferee shall have acknowledged
its rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations, (ii) if the transferor
notifies the Company in writing on or prior to such transfer that the
transferee shall not have such rights, or (iii) if such transferee was not a
party to this Agreement on the date hereof (or an affiliate of a party hereto)
and acquired Registrable Securities in open-market purchases or pursuant to an
underwritten public offering.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed will be deemed to be an original and all of which
taken together will constitute one and the same instrument.
(h) Headings. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF TEXAS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein will remain in full force and
effect and will in no way be affected, impaired or invalidated, and the parties
hereto will use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of
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21
such which may be hereafter declared invalid, void or unenforceable.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the registration rights granted by the Company
with respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings among the parties with respect to such
registration rights.
(l) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
court, will be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WYNDHAM HOTEL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: President
-----------------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇▇▇▇ DESCENDANTS TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Special Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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THE BROOKE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Special Trustee
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Special Trustee
THE ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Special Trustee
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Special Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-22-
23
WYNDHAM EMPLOYEES LTD.
By: Wyndham Hotel Management
Corporation, General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
WYNDHAM HOTEL MANAGEMENT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
CF SECURITIES, L.P.
By: Mill Spring Holdings, Inc.,
General Partner
By: /s/ S.T. GROENTEMAN
--------------------------------
Name: S.T. Groenteman
------------------------------
Title: Vice President
-----------------------------
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24
WYNOPT INVESTMENT PARTNERSHIP
LEVEL II, L.P.
By: Hampstead GenPar, L.P., General
Partner
By: HH GenPar Partners, General
Partner
By: Hampstead Associates, Inc.,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name:
---------------------------
Title:
--------------------------
WYNOPT INVESTMENT PARTNERSHIP, L.P.
By: Wynopt Investment GenPar, Inc.,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name:
---------------------------
Title:
--------------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-24-
