1
Exhibit 10.60
STOCK AGREEMENT
by and among
D.C. OVERNIGHT PARTNERS, L.P.
a District of Columbia limited partnership
as Stock Purchaser
and
STARWOOD HOTELS & RESORTS TRUST,
a Maryland real estate investment trust
and
STARWOOD HOTELS & RESORTS WORLDWIDE, INC.,
a Maryland corporation,
Dated as of January 15, 1998
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STOCK AGREEMENT
THIS STOCK AGREEMENT (this "Agreement") is entered into as of
January 15, 1998 (the "Closing Date") by and between D.C. OVERNIGHT PARTNERS,
L.P., a District of Columbia limted partnership, ("Stock Purchaser"), STARWOOD
HOTELS & RESORTS TRUST, a Maryland real estate investment trust (the "Trust"),
and STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a Maryland corporation (the
"Corporation", and, with the Trust, "Starwood Lodging").
R E C I T A L S
A. Stock Purchaser has agreed to acquire from Starwood
Lodging, and Starwood Lodging has agreed to issue and deliver to Stock
Purchaser, Paired Shares in partial consideration for certain assets owned by
Stock Purchaser.
B. The parties desire to enter into this Agreement in order to
set forth certain terms and conditions under which the Paired Shares are to be
issued to and held by Stock Purchaser.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements contained in this Agreement and for other good and
valuable consideration, the receipt and adequacy of which are hereby mutually
acknowledged, Starwood Lodging and Stock Purchaser agree as follows:
SECTION 1
DEFINITIONS
1.1 Defined Terms.
"Accredited Investor" shall have the meaning ascribed to that
term in Rule 501 promulgated by the SEC under the Securities Act.
"Affiliate" shall mean, with respect to any Person, any other
Person that controls, is controlled by or is under common control with such
first Person.
"Applicable Percentage" shall mean: (a) if Starwood Lodging
delivers Registered Shares to Stock Purchaser pursuant to Section 2.1 hereof,
100% and (b) if Starwood Lodging delivers Unregistered Shares pursuant to
Section 2.1 hereof, 91.95%.
"Business Day" shall mean any day on which the New York Stock
Exchange is open for business.
"Closing Date" shall mean the date hereof.
"Equity Value" shall mean One Million Six Hundred Fifty-Five
Thousand One Hundred Dollars ($1,655,100), divided by the Applicable Percentage,
rounded to the nearest whole number.
"ITT Closing" shall have the meaning set forth in the
Registration Rights Agreement.
"Joinder Agreement" means an agreement to be bound by this
Agreement in the form of Attachment A hereto.
"LIBOR" means the average of the interbank offered rates for
three-month dollar
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deposits in the London market based on quotations at five (5) major banks, as
published from time to time in The Wall Street Journal. If The Wall Street
Journal ceases to publish such a compilation of interbank offered rates, or if
The Wall Street Journal ceases to be published, then Starwood Lodging shall
propose a substitute method of determining the interest rate generally known as
the three-month LIBOR rate, which method, absent manifest error, shall be
binding on all holders of the Subject Shares and Starwood Lodging.
"Lock Price" shall mean the Market Price as of the Closing
Date, provided, however, that in the event that, at any time during the period
between December 30, 1997 and the Settlement Date, the Corporation or the Trust
effects any reclassification, stock split or stock dividend with respect to
their stock, any change or conversion of stock into other securities, or any
other dividend or distribution with respect to the Paired Shares, other than (i)
dividends contemplated by the Starwood Lodging Disclosure in effect as of
December 30, 1997, or (ii) dividends in the aggregate not to exceed the greater
of (a) the current rate (as of December 30, 1997) of their dividends (together
with any increases in such rate in the ordinary course) and (b) the Trust's
"real estate investment taxable income" (as such term is defined for purposes of
the Internal Revenue Code) without regard to any net capital gains or the
deduction for dividends paid, appropriate and proportionate adjustments shall be
made to the Lock Price.
"Market Price" shall mean, as of any date, the average closing
prices of the Paired Shares on the New York Stock Exchange during the ten
consecutive Business Days immediately preceding such date.
"Open Market Sale" means one or more sales of Stock Agreements
Shares (including "short sales" initiated with the intention of delivering Stock
Agreements Shares) made or proposed to be made by placing one or more sale
orders or offers to sell with one or more securities brokers or dealers with a
view toward the consummation of one or more sale transactions that are required
to be, or that actually are, reported to the New York Stock Exchange or the
National Association of Securities Dealers.
"Orderly Market Disposition" means the sale of Stock
Agreements Shares by placing one or more sell orders with one or more securities
brokers or dealers with a view toward the disposition in the market of such
Stock Agreements Shares.
"Other Stock Agreements" shall mean, collectively, (i) that
certain Stock Agreement, dated as of January 15, 1998, among Savanah Limited
Partnership, as stock purchaser, and Starwood Lodging, (ii) that certain Stock
Agreement, dated as of January 15, 1998, among New Remington Partners, as stock
purchaser, and Starwood Lodging, and (iii) that certain Stock Agreement, dated
as of January 15, 1998, among N.Y. Overnight Partners, L.P., as stock purchaser,
and Starwood Lodging.
"Paired Shares" shall mean one share of beneficial interest,
par value $.01 per share, of the Trust, and one share of common stock, par value
$.01 per share, of the Corporation that are subject to the Pairing Agreement.
For purposes of calculating the number of Paired Shares to be delivered
hereunder, each pair of the shares of the stock of the Trust and the Corporation
shall be considered one share.
"Pairing Agreement" shall mean the Pairing Agreement dated as
of June 25, 1980, as amended, between the Trust and the Corporation providing,
in relevant part, for the pairing of all outstanding shares of the Corporation
and the Trust.
"Payment Rights" shall have the meaning set forth in Section 5
hereof.
"Person" shall have the meaning set forth in the Registration
Rights Agreement.
"Proposed Disposition Shares" shall have the meaning set forth
in Section 3 hereof.
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"Put Price" and "Put Right" shall have the meaning set forth
in Section 2.4 hereof.
"Registered Shares" means Subject Shares the issuance of which
to Stock Purchaser has been registered under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement by and among Stock Purchaser, the Trust and the Corporation in the
form of Attachment B hereto.
"Registration Statement" shall have the meaning set forth in
the Registration Rights Agreement.
"Required Effectiveness Date" shall have the meaning set forth
in the Registration Rights Agreement.
"Response Date" shall have the meaning set forth in Section 3
hereof.
"Restricted Group" shall mean two (2) or more Restricted
Holders acting in concert or under common direction.
"Restricted Holder" shall mean Stock Purchaser and any other
Person who shall have acquired any Stock Agreements Shares in a Transfer not
constituting an Open Market Sale. A Restricted Holder shall not include any
Person who shall have acquired any Stock Agreements Shares in a Transfer not
constituting an Open Market Sale if such Transfer occurs after the first Open
Market Sale of such Stock Agreements Shares.
"Sale Notice" shall have the meaning set forth in Section 3
hereof.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC Documents" means all documents required to have been
filed by the Trust or the Corporation with the SEC since January 1, 1996 and
through the date hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Settlement Date" shall mean, if Starwood Lodging shall
deliver Unregistered Shares pursuant to Section 2.1 hereof, the date on which
Starwood Lodging or its counsel shall notify Stock Purchaser that (i) the
Registration Statement has been declared effective by the SEC, (ii) that the
Subject Shares have been registered, on the terms and subject to the provisions
of the Registration Rights Agreement, for Transfer by the selling shareholders
named therein in Open Market Sales and in such other manner as is provided in
the Registration Statement, and (iii) that Starwood Lodging has completed all
deliveries and other actions required to enable trading of the Subject Shares on
the New York Stock Exchange; provided, however, that if such notice is given
later than 1:00 PM Eastern Time, the Settlement Date shall be deemed for all
purposes to occur on the Business Day following the date of such notice.
"Starwood Lodging Disclosure" shall mean, collectively, the
Form S-3 filed by the Corporation and the Trust with the SEC on November 12,
1997, and the Form S-4 filed by the Corporation and the Trust with the SEC on
November 20, 1997, as the same has been or may hereafter be amended by any
filing with the SEC made by the Trust or the Corporation.
"Stock Agreements Shares" shall mean the aggregate of the
Subject Shares and the other Paired Shares delivered pursuant to the Other Stock
Agreements.
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.
"Stock Purchaser Affiliates" shall have the meaning set forth
in Section 6.1 hereof.
"Subject Shares" means the 32,291 Paired Shares delivered by
Starwood Lodging pursuant to Section 2.1 hereof.
"Transfer" shall have the meaning set forth in the
Registration Rights Agreement.
"Transfer Agent" shall mean the transfer agent for the Paired
Shares.
"Unregistered Shares" means Subject Shares the issuance of
which to Stock Purchaser has not been registered under the Securities Act.
1.2 Other Definitional Provisions. The terms "hereof,"
"hereto," "hereunder" and similar terms when used in this Agreement shall refer
to this Agreement generally, rather than to the section in which such term is
used, unless otherwise specifically provided. Unless the context otherwise
requires, any defined term used in the plural shall refer to all members of the
relevant class, and any defined term used in the singular shall refer to any one
or more of the members of the relevant class.
SECTION 2
CALCULATION OF SUBJECT SHARES
2.1 Calculation of Subject Shares. Starwood Lodging shall
deliver to Stock Purchaser on the Closing Date Paired Shares in an amount equal
to the Equity Value divided by the Lock Price. Starwood Lodging shall have the
option to deliver Registered Shares or Unregistered Shares on the Closing Date.
2.2 Delivery Requirements for Paired Shares. The Paired
Shares to be delivered hereunder shall be properly endorsed and certificated
Paired Shares in the amount required to be delivered in accordance with the
provisions of this Agreement. If Registered Shares are delivered, such shares
shall be unlegended and fully and freely transferable without any consent of,
registration with or notice to any Person (except as provided for in Sections 3
and 4 hereof and in the Pairing Agreement). If Unregistered Shares are issued,
each certificate evidencing Subject Shares shall be stamped or otherwise
imprinted with a legend in substantially the following form (and no other
restrictive legends):
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT. THE SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE OR
THE SHARES EVIDENCED HEREBY IS SUBJECT TO THE TERMS OF A
REGISTRATION RIGHTS AGREEMENT DATED AS OF
JANUARY 15, 1998 BETWEEN THE ISSUER AND THE
HOLDER HEREOF.
There shall be no legend on the Paired Shares reflecting the restrictions in
Sections 3 or 4 hereof.
2.3 Other Deliveries. Concurrently with the delivery of the
Paired Shares, Starwood Lodging shall deliver to Stock Purchaser any statements,
such as a transfer or
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conveyance tax forms or returns required by applicable federal or New York law
to be executed by Starwood Lodging, as may reasonably be requested by Stock
Purchaser in order to effect the delivery of the Subject Shares to Stock
Purchaser.
2.4 Registration Rights and Requirements.
(a) If Starwood Lodging delivers Unregistered Shares pursuant
to Section 2.1 hereof, Stock Purchaser and Starwood Lodging shall on the Closing
Date execute and deliver to each other the Registration Rights Agreement and the
parties thereto shall perform their respective obligations thereunder. If
Starwood Lodging delivers Registered Shares pursuant to Section 2.1 hereof, the
Registration Rights Agreement shall not be executed or delivered and none of the
parties shall have any obligations thereunder.
(b) If Starwood Lodging delivers Unregistered Shares pursuant
to Section 2.1 hereof, and if the Settlement Date shall not have occurred on or
before the seventh Business Day after the Required Effectiveness Date, Starwood
Lodging shall pay to each Restricted Holder, on the Settlement Date, an amount
equal to the "Interest Factor." For each Restricted Holder, the "Interest
Factor" shall be an amount equal to the product of (i) LIBOR plus 2% per annum
for each day after the seventh Business Day after the Required Effectiveness
Date to and including the earlier of the Settlement Date or the date that is 60
days after the Required Effectiveness Date, multiplied by (ii) the Market Price
multiplied by the number of Subject Shares held by such Restricted Holder on the
date of such payment.
(c) In the event that the Settlement Date shall not have
occurred by the date that is 60 days after the Required Effectiveness Date, each
Person who is a Restricted Holder as of such date shall have the
non-transferrable right (its "Put Right"), exercisable at any one time for each
such Restricted Holder after such 60th day and through the earlier to occur of
(i) the Settlement Date, and (ii) the day immediately prior to the first
anniversary of the Closing, to "put" some or all of the Subject Shares held by
such Restricted Holder to Starwood Lodging for an amount per share equal to the
Put Price; provided, however, that the Put Right shall not be exercisable by any
Restricted Holder for a number of Subject Shares that is less than the lesser of
(i) 100,000, or (ii) the number of Subject Shares then held by such Restricted
Holder. Such right shall be exercised by such Restricted Holder giving Starwood
Lodging notice of its election to exercise its Put Right and the number of
Subject Shares to be purchased by Starwood Lodging, whereupon Starwood Lodging
shall purchase such shares at 9:00 a.m. (Eastern Time) on the second Business
Day following its receipt of such notice, with payment to be delivered (against
delivery to Starwood Lodging of such shares free of all rights of other Persons)
on the third Business Day thereafter in cash or immediately available funds to
such account as such Restricted Holder may designate in such notice. The Put
Price shall be the Market Price determined as of the date such notice is given.
Starwood Lodging shall have the right to satisfy its obligations under the Put
Rights by designating another Person as the purchaser of such shares, and such
obligations shall be deemed satisfied upon such other Person's purchase of such
shares for the Put Price and at the time and in the manner set forth herein.
Such designation shall not affect Starwood Lodging's obligation to pay the
Interest Factor as provided herein.
(d) The Interest Factor and the right of each Restricted
Holder to receive the Put Price in the event it elects to exercise its Put Right
shall be each Restricted Holder's sole and exclusive monetary remedies arising
from Starwood Lodging's failure to cause the Settlement Date to occur on or
before the seventh Business Day after the Required Effectiveness Date and shall
be deemed liquidated damages in respect of such failure; and each Restricted
Holder shall be deemed to have waived its other monetary remedies. However, from
and after the seventh Business Day after the Required Effectiveness Date, each
Holder shall at all times have such equitable remedies as may be available under
applicable law.
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SECTION 3
NOTICE PROCEDURES REGARDING OPEN MARKET SALE
OF STOCK AGREEMENTS SHARES
3.1 If, at any time any Restricted Holder or Restricted Group
elects to Transfer, in an Open Market Sale, more than 100,000 Stock Agreements
Shares on any single Business Day (300,000 Stock Agreements Shares from and
after the first Business Day after the ITT Closing), prior to executing such
Transfer the designated representative of such Restricted Holder or Restricted
Group shall provide Starwood Lodging's representative, the Chief Financial
Officer of the Trust (or any successor representative identified by a notice
given hereunder), with telephonic notice at (▇▇▇) ▇▇▇-▇▇▇▇ along with a
confirmation of such notice by telefacsimile to Starwood Lodging and Starwood
Lodging's additional addressees as provided in Section 7.1 hereof. Such notice
(the "Sale Notice") shall indicate the number of Stock Agreements Shares which
such Restricted Holder or Restricted Group has determined to Transfer in an Open
Market Sale (the "Proposed Disposition Shares") on such day or days and shall
comply with Section 3.5 hereof (if applicable). Such notice shall be deemed
given on the Business Day the telephonic notice described above is given so long
as such notice is given by 5:00 P.M., Eastern time, on such day; if given after
that time, it shall be deemed given on the next Business Day. In the event that,
at any time while this Section 3.1 is in effect, the Corporation or the Trust
effects any reclassification, stock split or stock dividend with respect to
their stock, any change or conversion of stock into other securities, or any
other dividend or distribution with respect to the Paired Shares, other than (i)
dividends contemplated by the Starwood Lodging Disclosure as in effect on
December 30, 1997, or (ii) dividends in the aggregate not to exceed the greater
of (a) the current rate (as of December 30, 1997) of their dividends (together
with any increases in such rate in the ordinary course) and (b) the Trust's
"real estate investment taxable income" (as such term is defined for purposes of
the Internal Revenue Code) without regard to any net capital gains or the
deduction for dividends paid, appropriate and proportionate adjustments shall be
made to the numbers of Stock Agreements Shares set forth in the first sentence
of this Section 3.1.
3.2 No later than noon, Eastern time, on the second Business
Day after the Sale Notice is given as described above, Starwood Lodging may
provide the representative(s) of such Restricted Holder or Restricted Group with
telephonic notice, along with a confirmation of such notice to such
representatives by telefacsimile, that Starwood Lodging is irrevocably offering
to purchase or place all of the Proposed Disposition Shares at a price per share
equal to the average of the closing prices on the New York Stock Exchange on the
first and second Business Days following the giving of the Sale Notice. Such
notice shall be given as provided in Section 3.5 hereof. It shall be a condition
to such notice and the consummation of such transaction that such transaction
not constitute a violation of Regulation M promulgated by the SEC. If Starwood
Lodging fails to make such an offer within such period, it shall have no further
rights under this Section 3 with respect to any Orderly Market Disposition by
such Restricted Holder or Restricted Group of Stock Agreements Shares up to the
amount of the Proposed Disposition Shares that is commenced not later than the
seventh Business Day after the Sale Notice is given.
3.3 If Starwood Lodging duly makes such an offer, such
Restricted Holder or Restricted Group shall elect by telephonic notice to
Starwood Lodging's representative delivered and confirmed as described above,
given by 8:30 a.m. (Eastern Time) on the Business Day following receipt of
Starwood Lodging's offer (such day is referred to herein as the "Response
Date"), in their sole and absolute discretion, to either (i) proceed with such
proposed disposition, in which instance Starwood Lodging shall purchase or place
the Proposed Disposition Shares at 9:00 a.m. (Eastern Time), on the Response
Date, with payment to be delivered (against delivery
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to Starwood Lodging of the Proposed Disposition Shares free of all rights of
other Persons) on the third Business Day after the Response Date in cash or
immediately available funds to such account as such Restricted Holder may
designate by notice to Starwood Lodging, or (ii) not to proceed with such
proposed disposition, in which instance the Sale Notice shall be withdrawn and
such Restricted Holder shall continue to hold the Proposed Disposition Shares
subject to the terms of this Section 3 (to the extent applicable). If such
Restricted Holder shall fail to so elect by 8:30 a.m. (Eastern Time) on the
Response Date, it shall irrevocably be deemed to have elected not to proceed
with such proposed disposition.
3.4 On the first anniversary of the Settlement Date, the
provisions of this Section 3 shall automatically lapse and be of no further
force or effect with respect to each Restricted Holder that holds less than
500,000 Stock Agreements Shares (except (i) to the extent that such Restricted
Holder acts on or after such date as a member of a Restricted Group that holds
in the aggregate 500,000 or more Stock Agreements Shares, and (ii) to the extent
such Restricted Holder, either alone or as a member of a Restricted Group, has
given or was required to have given Starwood Lodging a Sale Notice prior to such
date and as to which the procedures in this Section 3 have not been fully
performed).
3.5 Any notice given by Starwood Lodging pursuant to Section
3.2 hereof to Stock Purchaser shall be given telephonically to ▇▇▇▇▇ ▇▇▇▇▇▇ at
(▇▇▇) ▇▇▇-▇▇▇▇ and by telefacsimile to (▇▇▇) ▇▇▇-▇▇▇▇, or to such other
telephone and telefacsimile numbers as may be set forth for such purpose in the
Sale Notice. Any notice given by Starwood Lodging pursuant to Section 3.2 hereof
to any other Restricted Holder or Restricted Group shall be given to the
telephone and telefacsimile numbers as may be set forth for such purpose in the
Sale Notice, and no Sale Notice from a Restricted Holder other than Stock
Purchaser or from any Restricted Group shall be deemed properly given in
accordance with Section 3.1 unless such numbers are set forth in such Sale
Notice.
3.6 Time is of the essence in the performance by the parties
of their obligations under this Section 3.
SECTION 4
TRANSFERS NOT CONSTITUTING AN OPEN MARKET SALE; SHORT SALES
4.1 Each Restricted Holder covenants and agrees that, as a
condition to any Transfer by a such Restricted Holder of Subject Shares in a
transaction that does not constitute an Open Market Sale, such Restricted Holder
will obtain and deliver to Starwood Lodging a Joinder Agreement duly executed by
the transferee or the intended transferee; and any purported Transfer of Subject
Shares made in breach of this provision shall be null and void ab initio.
4.2 Each Restricted Holder covenants and agrees that, prior to
the effectiveness of the Registration Statement, it will not "sell short" (as
such term is commonly understood in the brokerage industry) any Paired Shares,
whether "against the box" or otherwise.
SECTION 5
PAYMENT RIGHTS
On the Settlement Date, Starwood Lodging shall pay to Stock
Purchaser in cash or other immediately available funds an amount equal to the
amount, if any, by which the Lock
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Price exceeds the Market Price as of the Settlement Date, multiplied by the
number of Paired Shares delivered by Starwood Lodging to Stock Purchaser
hereunder. Stock Purchaser's right to receive the payments from Starwood Lodging
described in this section are referred to herein as the "Payment Rights."
Pursuant to a written instrument a copy of which is delivered to Starwood
Lodging promptly following its execution by Stock Purchaser, Stock Purchaser may
distribute to its partners or their shareholders or assign to any other Person
all or any portion of the Payment Rights either together with or separately from
the Paired Shares delivered hereunder.
SECTION 6
REPRESENTATIONS AND WARRANTIES
6.1 Stock Purchaser represents and warrants to Starwood
Lodging as follows:
(a) Stock Purchaser has the power and authority to enter into
this Agreement and the Registration Rights Agreement and to perform its
obligations hereunder and thereunder. The execution and delivery hereof and
thereof and the performance by Stock Purchaser of its obligations hereunder and
thereunder will not violate or constitute an event of default under any material
term or material provision of any agreement, document, instrument, judgment,
order or decree to which Stock Purchaser is a party or by which it is bound, or
violate any law, rule or regulation the violation of which would have a material
adverse effect upon the principal benefits intended to be provided under this
Agreement or the Registration Rights Agreement.
(b) The individuals executing this Agreement and the
Registration Rights Agreement on behalf of Stock Purchaser have the legal power,
right and actual authority to bind Stock Purchaser to the terms and conditions
hereof and thereof. Each of this Agreement and the Registration Rights Agreement
is a valid and binding obligation of Stock Purchaser, enforceable in accordance
with its terms, except as the same may be affected by bankruptcy, insolvency,
moratorium or similar laws, or by legal or equitable principles relating to or
limiting the rights of contracting parties generally.
(c) Stock Purchaser is acquiring the Subject Shares to be
issued to it for investment, solely for the account of itself, on behalf of its
partners and Persons who are stockholders of such partners, or on behalf of
certain Persons each of whom is both an Affiliate of a partner of Stock
Purchaser and a creditor of Stock Purchaser (collectively, such partners and
other Persons the "Stock Purchaser Affiliates"). Neither Stock Purchaser nor any
of the Affiliates of Stock Purchaser is acquiring Subject Shares with a view to
or for sale in connection with any distribution of such Subject Shares in
violation of applicable securities laws.
(d) Stock Purchaser and each of the Stock Purchaser Affiliates
is an Accredited Investor.
(e) Stock Purchaser has obtained and reviewed the Starwood
Lodging Disclosure and the SEC Documents that have been filed with the SEC
through the date hereof.
6.2 By its execution of its Joinder Agreement, each Restricted
Holder other than Stock Purchaser shall be deemed to have represented and
warranted to Starwood Lodging, as of the date of its delivery of such Joinder
Agreement, as follows:
(a) Such Restricted Holder has the power and authority to
enter into this
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Agreement, the Registration Rights Agreement and its Joinder Agreement and to
perform its obligations hereunder and thereunder. The execution and delivery
hereof and thereof and the performance by such Restricted Holder of its
obligations hereunder and thereunder will not violate or constitute an event of
default under any material term or material provision of any agreement,
document, instrument, judgment, order or decree to which such Restricted Holder
is a party or by which it is bound, or violate any law, rule or regulation the
violation of which would have a material adverse effect upon the principal
benefits intended to be provided under this Agreement or the Registration Rights
Agreement.
(b) The individuals executing this Agreement, the Registration
Rights Agreement and its Joinder Agreement on behalf of such Restricted Holder
have the legal power, right and actual authority to bind such Restricted Holder
to the terms and conditions hereof and thereof. Each of this Agreement, the
Registration Rights Agreement and its Joinder Agreement is a valid and binding
obligation of such Restricted Holder, enforceable in accordance with its terms,
except as the same may be affected by bankruptcy, insolvency, moratorium or
similar laws, or by legal or equitable principles relating to or limiting the
rights of contracting parties generally.
(c) Such Restricted Holder is acquiring the Subject Shares
Transferred or to be Transferred to it for investment, solely for the account of
itself and not with a view to or for sale in connection with any distribution of
such Subject Shares in violation of applicable securities laws; provided,
however, that if such Restricted Holder is Stock Purchaser Affiliate, such
Restricted Holder may acquire the Subject Shares on behalf of Persons who are
stockholders of such Restricted Holder if each of such Persons is an Accredited
Investor.
(d) Such Restricted Holder is an Accredited Investor.
(e) Such Restricted Holder has had the opportunity, prior to
making the determination to acquire any Subject Shares, to obtain and review the
Starwood Lodging Disclosure and the SEC Documents that have been filed with the
SEC through the date of the execution of such Restricted Holder's Joinder
Agreement.
6.3 The Trust hereby represents and warrants to Stock
Purchaser as follows:
(a) The Trust has the power and authority to enter into this
Agreement and the Registration Rights Agreement and to consummate the
transactions herein contemplated; neither the execution and delivery of this
Agreement or the Registration Rights Agreement by the Trust, nor the performance
by the Trust of the Trust's obligations hereunder or thereunder will violate or
constitute an event of default under any material terms or material provisions
of any agreement, document, instrument, judgment, order or decree to which the
Trust is a party or by which the Trust is bound, or violate any law, rule or
regulation the violation of which would have a material adverse effect upon the
principal benefits intended to be provided under this Agreement or the
Registration Rights Agreement.
(b) The individuals executing this Agreement and the
Registration Rights Agreement and the documents referenced herein on behalf of
the Trust have the legal power, right and actual authority to bind the Trust to
the terms and conditions hereof. This Agreement and the Registration Rights
Agreement is a valid and binding obligation of Trust, enforceable in accordance
with its terms, except as the same may be affected by bankruptcy, insolvency,
moratorium or similar laws, or by legal or equitable principles relating to or
limiting the rights of contracting parties generally.
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(c) All Paired Shares to be delivered in accordance with
Section 2.1 hereof will, when so issued, be duly authorized, validly issued,
fully paid and nonassessable and free of preemptive rights and will be paired
with each other in the same ratio as all other shares are paired with each other
pursuant to the Pairing Agreement.
(d) The Trust has filed all of the SEC Documents. As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of applicable law, and, at the respective times they were filed,
none of the SEC Documents contained any untrue statement of a material fact or
omitted 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. The consolidated financial statements (including, in each
case, any notes thereto) of the Trust included in the SEC Documents complied as
to form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto as of their
respective dates of filing, were prepared in accordance with generally accepted
accounting principles (except, in the case of the unaudited statements, as
permitted by Regulation S-X of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated therein or in the notes thereto)
and fairly presented the consolidated financial position of the Trust and its
consolidated subsidiaries as of the respective dates thereof and the
consolidated results of their operations and their consolidated cash flows for
the periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments and to any other adjustments described therein).
Except as disclosed in the SEC Documents or as required by generally accepted
accounting principles, the Trust has not, since December 31, 1996, made any
change in the accounting practices or policies applied in the preparation of
their financial statements.
(e) Except as disclosed in the SEC Documents or the Starwood
Lodging Disclosure, since December 31, 1996 and through the date hereof, (i)
there have not been any events, changes or developments that, individually or in
the aggregate, have had or would reasonably be expected to have, a material
adverse change in or effect on the financial condition, properties, business,
results of operations or prospects of the Trust and its subsidiaries taken as a
whole, or (ii) there has not been any split, combination or reclassification of
any of the capital stock or units of the Trust or its operating partnership or
any issuance or the authorization of any issuance of any other securities in
respect of, in lieu of, or in substitution for shares of such capital stock.
(f) Except as set forth in the SEC Documents or the Starwood
Lodging Disclosure or in a separate writing provided to Stock Purchaser on or
before the date hereof, as of the date hereof: there are no outstanding orders,
judgments, injunctions, awards or decrees of any governmental entity against or
involving the Trust or any of its subsidiaries, or against or involving any of
the directors, officers or employees of the Trust or any of its subsidiaries, as
such, or any of its or their properties, assets or business that, individually
or in the aggregate, have had, or would reasonably be expected to have, a
material adverse change in or effect on the financial condition, properties,
business, results of operations or prospects of the Trust and its subsidiaries
taken as a whole; and there are no actions, suits or claims or legal,
administrative or arbitrative proceedings or investigations pending or, to the
knowledge of the Trust, threatened against or involving the Trust or any of its
subsidiaries or any of their directors, officers or employees, as such, or any
of its or their properties, assets or business that, individually or in the
aggregate, have had, or would reasonably be expected to have, a material adverse
change in or effect on the financial condition, properties, business, results of
operations or prospects of the Trust and its subsidiaries taken as a whole. As
of the date hereof, there are no actions, suits or other litigation, legal or
administrative proceedings or governmental investigations pending or, to the
knowledge of the Trust, threatened against or affecting the Trust or any of its
subsidiaries or any of their officers, directors or employees, as such, or any
of
12
their properties, assets or business relating to the transactions contemplated
by this Agreement and the Registration Rights Agreement.
6.4 The Corporation hereby represents and warrants to Stock
Purchaser as follows:
(a) The Corporation has the power and authority to enter into
this Agreement and the Registration Rights Agreement and to consummate the
transactions herein contemplated; neither the execution and delivery of this
Agreement or the Registration Rights Agreement by the Corporation, nor the
performance by the Corporation of the Corporation's obligations hereunder or
thereunder will violate or constitute an event of default under any material
terms or material provisions of any agreement, document, instrument, judgment,
order or decree to which the Corporation is a party or by which the Corporation
is bound, or violate any law, rule or regulation the violation of which would
have a material adverse effect upon the principal benefits intended to be
provided under this Agreement or the Registration Rights Agreement.
(b) The individuals executing this Agreement and the
Registration Rights Agreement and the documents referenced herein on behalf of
the Corporation have the legal power, right and actual authority to bind the
Corporation to the terms and conditions hereof. This Agreement and the
Registration Rights Agreement is a valid and binding obligation of Corporation,
enforceable in accordance with its terms, except as the same may be affected by
bankruptcy, insolvency, moratorium or similar laws, or by legal or equitable
principles relating to or limiting the rights of contracting parties generally.
(c) All Paired Shares to be delivered in accordance with
Section 2.1 hereof will, when so issued, be duly authorized, validly issued,
fully paid and nonassessable and free of preemptive rights and will be paired
with each other in the same ratio as all other shares are paired with each other
pursuant to the Pairing Agreement.
(d) The Corporation has filed all of the SEC Documents. As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of applicable law, and, at the respective times they were
filed, none of the SEC Documents contained any untrue statement of a material
fact or omitted 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. The consolidated financial statements
(including, in each case, any notes thereto) of the Corporation included in the
SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto as of their respective dates of filing, were prepared in
accordance with generally accepted accounting principles (except, in the case of
the unaudited statements, as permitted by Regulation S-X of the SEC) applied on
a consistent basis during the periods involved (except as may be indicated
therein or in the notes thereto) and fairly presented the consolidated financial
position of the Corporation and its consolidated subsidiaries as of the
respective dates thereof and the consolidated results of their operations and
their consolidated cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end audit adjustments and to any other
adjustments described therein). Except as disclosed in the SEC Documents or as
required by generally accepted accounting principles, the Corporation has not,
since December 31, 1996, made any change in the accounting practices or policies
applied in the preparation of their financial statements.
(e) Except as disclosed in the SEC Documents or the Starwood
Lodging Disclosure, since December 31, 1996 and through the date hereof, (i)
there have not been any events, changes or developments that, individually or in
the aggregate, have had or would reasonably be expected to have, a material
adverse change in or effect on the financial
13
condition, properties, business, results of operations or prospects of the
Corporation and its subsidiaries taken as a whole, or (ii) there has not been
any split, combination or reclassification of any of the capital stock or units
of the Corporation or its operating partnership or any issuance or the
authorization of any issuance of any other securities in respect of, in lieu of,
or in substitution for shares of such capital stock.
(f) Except as set forth in the SEC Documents or the Starwood
Lodging Disclosure or in a separate writing provided to Stock Purchaser on or
before the date hereof, as of the date hereof: there are no outstanding orders,
judgments, injunctions, awards or decrees of any governmental entity against or
involving the Corporation or any of its subsidiaries, or against or involving
any of the directors, officers or employees of the Corporation or any of its
subsidiaries, as such, or any of its or their properties, assets or business
that, individually or in the aggregate, have had, or would reasonably be
expected to have, a material adverse change in or effect on the financial
condition, properties, business, results of operations or prospects of the
Corporation and its subsidiaries taken as a whole; and there are no actions,
suits or claims or legal, administrative or arbitrative proceedings or
investigations pending or, to the knowledge of the Corporation, threatened
against or involving the Corporation or any of its subsidiaries or any of their
directors, officers or employees, as such, or any of its or their properties,
assets or business that, individually or in the aggregate, have had, or would
reasonably be expected to have, a material adverse change in or effect on the
financial condition, properties, business, results of operations or prospects of
the Corporation and its subsidiaries taken as a whole. As of the date hereof,
there are no actions, suits or other litigation, legal or administrative
proceedings or governmental investigations pending or, to the knowledge of the
Corporation, threatened against or affecting the Corporation or any of its
subsidiaries or any of their officers, directors or employees, as such, or any
of their properties, assets or business relating to the transactions
contemplated by this Agreement and the Registration Rights Agreement (other than
those arising in connection with the Registration Statement or the performance
by the Corporation of its obligations under the Registration Rights Agreement).
SECTION 7
NOTICES
7.1 Addresses. Except for the notices given pursuant to
Section 3, whenever any notice, demand or request is required or permitted
hereunder, such notice, demand or request shall be made in writing and shall be
(a) sent via a nationally recognized overnight courier service fully prepaid,
(b) deposited in the United States by mail, registered or certified, return
receipt requested, postage prepaid, or (c) sent via telefacsimile, provided that
the original of such notice, demand or request shall also be sent via one of the
methods described in (a) and (b) above, in each case to the addressees (and
individuals) set forth below:
As to Stock Purchaser:
c/o Al Anwa USA, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to Stock Purchaser's additional addressees:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. Eng, Esq.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
As to Starwood Lodging:
Starwood Lodging Hotels & Resorts Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or Chief Financial Officer
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Starwood Lodging Hotels & Resorts Worldwide, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or Vice President
With a copy to Starwood Lodging's additional addressees:
▇▇▇▇▇▇▇▇▇ Traurig ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Sidley & Austin
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Restricted Holder other than Stock Purchaser: to the address and
telefacsimile number set forth in such Restricted Holder's Joinder Agreement (or
to any other address or telefacsimile number provided to Starwood Lodging in
writing pursuant to a notice given by such Restricted Holder pursuant to this
Section 7.1).
7.2 Receipt of Notices. Any notice, demand or request that
shall be delivered to Starwood Lodging and its Additional Addressee in the
manner aforesaid shall be deemed sufficiently given to and received by Starwood
Lodging for all purposes hereunder, and any notice, demand or request that shall
be delivered to Stock Purchaser and its Additional Addressee in the manner
aforesaid shall be deemed sufficiently given to and received by Stock Purchaser
for all purposes hereunder (i) the next business day following the day such
notice, demand or request is delivered by a nationally recognized overnight
courier service fully prepaid, to such party and its Additional Addressee, (ii)
if sent via registered or certified mail, at the time of receipt by such party
and its Additional Addressee, or (iii) if sent via telefacsimile, as of the date
and time stated upon confirmation reports generated by the sending party's
telefacsimile machine confirming the delivery of such notice, demand or request
to such party
15
and its Additional Addressee.
7.3 Refusal of Delivery. The inability to deliver any notice,
demand or request because the individual to whom it is properly addressed in
accordance with this Section 7 refused delivery thereof or no longer can be
located at that address shall constitute delivery thereof to such individual.
7.4 Change of Address. Each party shall have the right from
time to time to designate by written notice to the other parties hereto such
other Person or Persons and such other place or places as said party may desire
written notices to be delivered or sent in accordance herewith.
SECTION 8
GENERAL PROVISIONS
8.1 Amendment. No provision of this Agreement or of any
documents or instrument entered into, given or made pursuant to this Agreement
may be amended, changed, waived, discharged or terminated except by an
instrument in writing, signed by the party against whom enforcement of the
amendment, change, waiver, discharge or termination is sought.
8.2 Time of Essence. All times provided for in this Agreement
for the performance of any act will be strictly construed, time being of the
essence.
8.3 Entire Agreement. This Agreement and other documents
delivered pursuant to this Agreement set forth the entire agreement and
understanding of the parties in respect of the transactions contemplated by this
Agreement, and supersede all prior agreements, arrangements and understandings
relating to the subject matter hereof and thereof. No representation, promise,
inducement or statement of intention with respect to the subject matter hereof
has been made by Stock Purchaser or Starwood Lodging which is not embodied in
this Agreement, and neither Starwood Lodging nor Stock Purchaser shall be bound
by or liable for any alleged representations, promise, inducement or statement
of intention not therein so set forth.
8.4 No Waiver. No failure of any party to exercise any power
given such party hereunder or to insist upon strict compliance by the other
party with its obligations hereunder shall constitute a waiver of any party's
right to demand strict compliance with the terms of this Agreement.
8.5 Counterparts. This Agreement, any document or instrument
entered into, given or made pursuant to this Agreement or authorized hereby, and
any amendment or supplement thereto may be executed in two or more counterparts,
and, when so executed, will have the same force and effect as though all
signatures appeared on a single document. Any signature page of this Agreement
or of such an amendment, supplement, document or instrument may be detached from
any counterpart without impairing the legal effect of any signatures thereon,
and may be attached to another counterpart identical in form thereto but having
attached to it one or more additional signature pages.
8.6 Costs and Attorneys' Fees. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this Agreement
or because of an alleged dispute, default, or misrepresentation in connection
with any of the provisions of this Agreement the successful or prevailing party
shall be entitled to recover reasonable attorneys' fees, charges and other costs
incurred in that action or proceeding, in addition to any other relief to which
it
16
may be entitled.
8.7 Payments; Interests. Except as otherwise provided herein,
payment of all amounts required by the terms of this Agreement shall be made in
the United States and in immediately available funds of the United States of
America which, at the time of payment, is accepted for the payment of all public
and private obligations and debts. If any payment due under this Agreement is
not paid when due, it shall thereafter bear interest at a variable rate equal to
the rate announced from time to time by Citibank, N.A. as its prime or reference
rate, plus five percent (5%) per annum, but in no event more than the maximum
rate, if any, allowed by law to be charged by the party receiving the interest
on such type of indebtedness.
8.8 Parties in Interest. The rights and obligations of the
parties hereto shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, heirs and the legal
representatives of their respective estates. However, none of Stock Purchaser's
rights under this Agreement shall be assignable except (i) in the case of the
Payment Rights, as provided in Section 5 hereof, and (ii) in the case of all
other rights of Stock Purchaser or another Restricted Holder, to a transferee of
Subject Shares in a transaction not constituting an Open Market Sale if such
transferee delivers a Joinder Agreement in compliance with Section 4 hereof.
Nothing in this Agreement is intended to confer any right or remedy under this
Agreement on any Person other than the parties to this Agreement and their
respective successors and assigns, or to relieve or discharge the obligation or
liability of any Person to any party to this Agreement or to give any Person any
right of subrogation or action over or against any party to this Agreement.
8.9 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
without giving effect to the conflict-of-law rules and principles of that state.
8.10 Incorporation of Recitals. The recitals of this Agreement
are incorporated into and made a part of this Agreement.
8.11 Construction of Agreement. The language in all parts of
this Agreement shall be in all cases construed simply according to its fair
meaning and not strictly for or against any of the parties hereto. Headings at
the beginning of sections of this Agreement are solely for the convenience of
the parties and are not a part of this Agreement. When required by the context,
whenever the singular number is used in this Agreement, the same shall include
the plural, and the plural shall include the singular, the masculine gender
shall include the feminine and neuter genders, and vice versa. As used in this
Agreement, the term "Stock Purchaser" shall include the respective permitted
successors and assigns of Stock Purchaser, and the term "Starwood Lodging" shall
include the permitted successors and assigns of Starwood Lodging, if any.
8.12 Severability. If any term or provision of this Agreement
is determined to be illegal, unconscionable or unenforceable, all of the other
terms, provisions and sections hereof will nevertheless remain effective and be
in force to the fullest extent permitted by law.
8.13 Further Assurances. Starwood Lodging and Stock Purchaser
agree to execute upon the request of the other party such instruments and take
such actions as may be reasonably necessary to carry out the provisions of this
Agreement provided that no material additional cost or liability shall incurred
thereby by the party of whom such request is made.
8.14 Starwood Hotels & Resorts Trust. The parties hereto
understand and agree that the name "Starwood Hotels & Resorts Trust" is a
designation of the Trust and its trustees (as trustees but not personally) under
the Trust's Declaration of Trust, and all persons
17
dealing with the Trust shall look solely to the Trust's assets for the
enforcement of any claims against the Trust, and that the Trustees, officers,
agents and security holders of the Trust assume no personal liability for
obligations entered into on behalf of the Trust, and their respective individual
assets shall not be subject to the claims of any person relating to such
obligations.
18
IN WITNESS WHEREOF, Starwood Lodging and Stock Purchaser have
caused this Agreement to be executed as of the day and year first above written.
"Stock Purchaser"
D.C. OVERNIGHT PARTNERS, L.P.,
a District of Columbia limited partnership
By: D.C. OVERNIGHT, INC., a District of Columbia
corporation, its sole General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
President
"Starwood Lodging"
STARWOOD HOTELS & RESORTS TRUST,
a Maryland real estate investment trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
STARWOOD HOTELS & RESORTS WORLDWIDE, INC.,
a Maryland corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
19
ATTACHMENT A
to Stock Agreement
AGREEMENT TO BE BOUND
BY THE STOCK AGREEMENT
(JOINDER AGREEMENT)
The undersigned, being the transferee or the intended
transferee of ________________ Paired Shares (the "Subject Shares") of Starwood
Hotels & Resorts Trust, a Maryland real estate investment trust, and Starwood
Hotels & Resorts Worldwide, Inc., a Maryland corporation (together, the
"Company"), as a condition to the transfer to and acquisition by the undersigned
of such Subject Shares, acknowledges that certain sales or other transfers of
such Subject Shares are governed by the Stock Agreement (the "Stock Agreement"),
dated as of January 15, 1998, initially among the Company and D.C. Overnight
Partners, L.P., and the undersigned hereby (1) acknowledges receipt of a copy of
the Stock Agreement, and (2) agrees to be bound as a "Restricted Holder" by the
terms of the Stock Agreement, as the same has been or may be amended from time
to time (including without limitation the representations and warranties of the
undersigned set forth therein that will be deemed made by virtue hereof).
The undersigned is hereby advised that the Subject Shares have
not been registered under the Securities Act of 1933 and in such event cannot be
resold unless they are registered under said act or unless an exemption from
registration under said act is available.
The following is the undersigned's representative and such
representative's address, telephone number and fax number for all purposes under
the Stock Agreement:
_________________________________
_________________________________
_________________________________
Agreed to this ____ day of __________, ____.
_________________________________
By: __________________________
Its: __________________________
20
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
January 15, 1998 among STARWOOD HOTELS & RESORTS TRUST, a Maryland real estate
investment trust (the "Trust"), STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a
Maryland corporation (the "Corporation" and, together with the Trust, the
"Company"), and D.C. OVERNIGHT PARTNERS, L.P., a District of Columbia limited
partnership ("Shareholder").
RECITALS
WHEREAS, pursuant to a Stock Agreement of even date herewith and by and
among the parties hereto (the "Stock Agreement"), the Company is issuing and
delivering to Shareholder certain Paired Shares; and
WHEREAS, the Stock Agreement provides that if such Paired Shares are
Unregistered Shares, the Company shall effect the registration of such Paired
Shares under the Securities Act; and
WHEREAS, the parties desire to set forth their rights and obligations
with respect to such registration and certain other matters;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. Each capitalized term used in this Agreement but not defined
herein shall have the meaning ascribed to such term in the Stock Agreement; and
as used in this Agreement the following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder Information" means, with respect to a Selling Holder, (i) such
information regarding such Selling Holder as is required by Section 507 of
Regulation S-K promulgated by the Commission under the Securities Act, (ii)
information as to whether (and if so, in what manner) the intended method of
disposition of such Holder's Registrable Shares differs from the Plan of
Distribution, and (iii) any such additional information as may be required to be
included in the Registration Statement by a Selling Holder; in each case as
shall be required to effect the registration of such Registrable Shares pursuant
to the Registration Statement, the disclosures required in the Prospectus with
respect thereto and the offer and Transfer of such Registrable Shares pursuant
to the Prospectus.
"Holders" means (i) Shareholder, and (ii) any other Person who acquires
any of the Registrable Shares from Shareholder or another Holder if (a) the
Transferor and such Person shall have delivered to the Company a written notice
of such Transfer setting forth the name of such Person, and (b) such Person
shall have executed and delivered to the Company a properly completed Joinder
Agreement; in each case at such times as such Persons shall own Registrable
Shares.
"ITT Closing" means the consummation of the acquisition of ITT
Corporation by the Company.
21
"ITT Termination" means the issuance by the Company of a press release
stating that the Company will not consummate the acquisition of ITT Corporation.
"Joinder Agreement" means an agreement to be bound by this Agreement in
the form of Annex A hereto.
"Paired Shares" means (i) "paired shares" (as such term is defined in
the Purchase and Sale Agreement), and (ii) shares of capital stock of the Trust
or the Corporation issued by the Trust or the Corporation in respect of or in
exchange for paired shares in connection with any stock dividend or
distribution, stock split-up, recapitalization, recombination or exchange by the
Trust or the Corporation generally of such paired shares.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or other entity, or government or other agency or
political subdivision thereof.
"Proposed Plan of Distribution" means a draft of the portion of the
Registration Statement that describes the intended methods of disposition of the
Registrable Shares by the Selling Holders.
"Prospectus" means, with respect to the Registration Statement and each
amendment thereto, the form of prospectus included therein.
"Registrable Shares" means, as of any date of determination, (i) the
Paired Shares that are Unregistered Shares and that constitute the Subject
Shares; (ii) any shares or other securities issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange by the
Trust or the Corporation generally for, or in replacement by the Trust or the
Corporation generally of, such Paired Shares; and (iii) any securities issued in
exchange for such Paired Shares in any merger or reorganization of the Company;
in each case that continue to be owned by a Holder on such date of
determination.
"Registration Statement" means a registration statement on Form S-3, as
amended from time to time, registering the offer and sale by the Selling Holders
of such Selling Holders' Registrable Shares included therein for offer and
Transfer on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act.
"Required Effectiveness Date" means the later of (i) the 30th day after
the Closing Date, or (ii) the earliest of:
(a) The 30th day after the date of the ITT Closing;
(b) The 30th day after the date of the ITT Termination; and
(c) If neither the ITT Closing nor the ITT Termination has occurred
prior to April 1, 1998, the 30th day after a demand for registration is made by
notice given by Shareholder to the Company on or after April 1, 1998;
provided, however, that in the event that, following the initial filing of the
Registration Statement, the Company is advised by the Commission that the
Registration Statement will be reviewed, each of the time periods set forth
above shall be extended for 20 days.
"Securities Act" shall mean the Securities Act of 1933, as amended.
22
"Selling Holders" means
(a) each Holder (i) who complies with Sections 3.1.1 hereof, (ii) who
holds not less than 100,000 Subject Shares at the both at the time such notice
is given and the date the Registration Statement is declared effective (or such
lesser number as the Company, in its sole and absolute discretion, shall
determine for such Holder), and (iii) whose Registrable Shares are included in
the Registration Statement; and
(b) each Transferee of such a Holder who (x) provides such Transferee's
Holder Information promptly after its acquisition of Subject Shares and prior
to the Company's request for acceleration of the Registration Statement, and (y)
satisfies the conditions set forth in clauses (ii) and (iii) above.
"Transfer" means the act of selling, giving, transferring, creating a
trust (voting or otherwise), assigning or otherwise disposing of (other than
pledging, hypothecating or otherwise transferring as security) (and correlative
words shall have correlative meanings).
"Transferee" means a Person to whom Registerable Shares are
Transferred.
"Violation" shall have the meaning set forth in Section 5.1 hereof.
2. Registration Obligations of the Company. The Company shall:
2.1 File the Registration Statement with the Commission not later than
15 days prior to the Required Effectiveness Date (determined without reference
to the proviso included in the definition of such term) and thereafter use its
best efforts to cause the Registration Statement to be declared effective on the
Required Effectiveness Date.
2.2 Furnish to the Shareholder a copy of the Registration Statement for
its review and comment not later than concurrently with the filing of the
Registration Statement with the Commission.
2.3 The Company shall give notice to the Shareholder of the expected
effectiveness of the Registration Statement no later than the date acceleration
of such effectiveness is requested of the Commission; provided, however, that in
no event shall the Company have any liability for any failure to give such
notice.
2.4 Include in the Registration Statement the number of each Holder's
Registrable Shares for each Holder as shall be specified for such Holder
pursuant to Section 3.1 hereof.
2.5 Use its best efforts to keep the Registration Statement effective
until the earlier of (i) one year after the Closing Date, or (ii) such date as
of which all the Selling Holders have completed the distribution or other
disposition of the Registrable Shares registered under the Registration
Statement. If the Registration Statement is terminated pursuant to clause (i)
above, the Company shall timely file with the Commission all reports and other
information required to enable all holders of Registrable Shares to Transfer
such shares pursuant to Rule 144 promulgated by the Commission under the
Exchange Act, as amended.
2.6 During the effectiveness of the Registration Statement, upon notice
to the Company by a Selling Holder of a Transfer of Registrable Shares pursuant
to the Registration
23
Statement and receipt (i) by the Company of a certificate from such Selling
Holder in the form of Annex B attached hereto, and (ii) by counsel for the
Company of a certificate from such Selling Holder in the form of Annex C
attached hereto, in each case representing that such Registrable Shares were
offered and have been Transferred by such Selling Holder in a manner consistent
with the description set under the caption "Plan of Distribution" in the
Prospectus, the Company shall use its best efforts to cause such Registrable
Shares to be reissued as soon as practicable (and not later than three Business
Days following receipt by the Company and such counsel of such certificates) in
the name of the transferee free of any restrictive legend under the Securities
Act and to take all such actions as may be reasonably required to cause its
transfer agent to comply with the undertakings set forth in this section.
2.7 Use its best efforts to amend the Registration Statement or
supplement the Prospectus so that they will remain current and in compliance
with the requirements of the Securities Act for the period specified in Section
2.4 hereof, and use its best efforts to give the Selling Holders notice of the
happening of any event or development as a result of which the Registration
Statement or Prospectus may contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements made therein not misleading. In the event that any Registrable
Shares included in the Registration Statement remain unsold at the end of the
period during which the Company is obligated to use its best efforts to maintain
the effectiveness of the Registration Statement, the Company may file a
post-effective amendment to the Registration Statement for the purpose of
de-registering such unsold Registrable Shares.
2.8 Furnish to each Selling Holder, without charge, such numbers of
copies of the Registration Statement, any pre-effective or post-effective
amendment thereto, the final Prospectus, and any amendments or supplements
thereto, in each case in conformity with the requirements of the Securities Act,
and such other related documents, as each Selling Holder may reasonably request
in order to facilitate the Transfer of the Registrable Shares owned by such
Selling Holder.
2.9 Use its best efforts to register and qualify the Registrable Shares
covered by the Registration Statement under such securities laws of such states
or jurisdictions as shall be reasonably requested by the Selling Holders;
provided, however, that neither the Trust nor the Corporation shall be required
in connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions.
2.10 Promptly notify each Selling Holder of any stop order issued or
threatened to be issued by the Commission or any of the jurisdictions referred
to in Section 2.9 hereof in connection with the Registration Statement (and use
its best efforts to prevent the entry of such stop order or to remove it if
entered as promptly as practicable).
2.11 Use its best efforts to cause the Registrable Shares covered by
the Registration Statement, if the Paired Shares are then listed on a securities
exchange or included for quotation in a recognized trading market, to continue
to be so listed or included.
3. The Holders' Obligations.
3.1 The obligations of the Company under Section 2 with respect to each
Holder are subject to the satisfaction of each of the following conditions:
3.1.1 Not later than 10 days after the later of (i) the date
hereof, or (ii) the date on which the Company delivers the Proposed
Plan of Distribution to the Shareholder
24
(or such later date as the Company, in its sole and absolute
discretion, shall determine), such Holder shall furnish all of its
Holder Information to the Company, if such Holder Information discloses
that such Holder holds not less than 100,000 Subject Shares (or such
lesser number as the Company, in its sole and absolute discretion,
shall determine for such Holder).
3.1.2 Prior to the effectiveness of the Registration Statement,
such Holder shall furnish to the Company by a notice such amendments
and supplements to its Holder Information provided pursuant to Section
3.1.1 hereof as may be necessary in order to assure that the Holder
Information included in the Registration Statement for each Selling
Holder does not include a misstatement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
3.1.3 Such Holder shall cooperate with the Company in the
preparation of the Registration Statement in the manner and to the
extent reasonably requested by the Company, including accurately and
fully completing, executing and delivering to the Company such
documents as the Company may reasonably request in order to permit the
Company to obtain the Holder Information or to otherwise comply with
all applicable laws or to obtain acceleration of the effectiveness of
the Registration Statement.
3.1.4 Such Holder shall not have breached any of its obligations
to the Company set forth in this Section 3.1 or in Sections 3 or 4 of
the Stock Agreement; provided, however, that if such breach is one that
is capable of being cured and is actually cured by such Holder in all
material respects, the obligations of the Company to such Holder that
arises, or which the Company is obligated to perform in whole or in
part, after such cure shall be reinstated on the terms and subject to
the conditions set forth herein. A Transferee of Subject Shares who is
otherwise entitled to have such shares included in the Registration
Statement shall be deemed not have breached its obligation to provide
its Holder Information to the Company if it provides such information
promptly after its acquisition of such shares and prior to the
Company's request for acceleration of the Registration Statement
3.1.5 Such Holder shall not have made any material
misrepresentation pursuant to Section 6 of the Stock Agreement.
3.2 No action taken or omitted to be taken by or on behalf of any
Holder shall adversely affect the rights of any other Holder hereunder.
3.3 After the effectiveness of the Registration Statement, each Selling
Holder (and each transferee thereof) shall furnish to the Company by a notice
such amendments and supplements to its Holder Information provided pursuant to
Section 3.1 hereof as may be necessary in order to assure that the Holder
Information included in the Registration Statement for such Holder does not
include a misstatement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
4. Expenses of Registration. The Company shall pay all expenses incurred in
connection with the registration, filing and qualification of the Registrable
Shares, including all registration, filing and NASD or securities exchange fees;
all fees and expenses of complying with securities or blue sky laws; all word
processing, duplicating and printing expenses; and the fees and disbursements of
counsel and accountants for the Company; but excluding all discounts,
commissions or fees of selling brokers or similar securities industry
professionals and all fees and expenses of counsel and accountants for the
Selling Holders.
25
5. Indemnification; Contribution.
5.1 To the extent permitted by applicable law, the Company shall
indemnify and hold harmless each Selling Holder; each Person, if any, who
controls such Selling Holder within the meaning of the Securities Act; and each
officer, director, partner and employee of such Selling Holder and such
controlling Person; against any and all losses, claims, damages, liabilities and
expenses incurred by such party pursuant to any actual or threatened action,
suit, proceeding or investigation, or to which any of the foregoing Persons may
become subject under the Securities Act, to the extent such losses, claims,
damages, liabilities and expenses arise out of or are based upon any of the
following (collectively a "Violation"):
5.1.1 Any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, including any
final Prospectus, or any amendments or supplements thereto;
5.1.2 The omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading; or
provided, however, that the indemnification required by this Section 5.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld or delayed), nor shall
the Company be liable in any such case for any such loss, claim, damage,
liability or expense incurred by a Selling Holder (or any Person, if any, who
controls such Selling Holder within the meaning of the Securities Act, or any
officer, director, partner and employee of such Selling Holder and such
controlling Person) to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with the Holder
Information or other information furnished to the Company by or on behalf of
such Selling Holder expressly for use in connection with the Registration
Statement.
5.2 To the extent permitted by applicable law, each Selling Holder
shall indemnify and hold harmless the Company; each of its directors, each of
its officers who shall have signed the Registration Statement; each Person, if
any, who controls the Company within the meaning of the Securities Act; any
other Selling Holder, any controlling Person of any such other Selling Holder
and each officer, director, partner, and employee of such other Selling Holder
and such controlling Person; against any and all losses, claims, damages,
liabilities and expenses, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may otherwise become subject under the Securities Act, to the
extent such losses, claims, damages, liabilities and expenses arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with the
Holder Information or other information furnished to the Company by or on behalf
of that Selling Holder expressly for use in connection with the Registration
Statement.
5.3 Promptly after receipt by an indemnified party under this Section 5
of notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this Section 5, such indemnified party shall deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof
26
with counsel mutually satisfactory to the parties. The failure of an Indemnified
Party to deliver written notice to the indemnifying party within a reasonable
time following the commencement of any such action shall not relieve such
indemnifying party of any liability to the indemnified party under this Section
5 unless such failure is prejudicial to such indemnifying party's ability to
defend such action. Any fees and expenses incurred by the indemnified party
(including any fees and expenses incurred in connection with investigating or
preparing to defend such action or proceeding) shall be paid to the indemnified
party, as incurred, within 30 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). Any such indemnified party
shall have the right to employ separate counsel in any such action, claim or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expenses of such indemnified party unless (i) the
indemnifying party has agreed to pay such fees and expenses, or (ii) the
indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding, or (iii) the named parties to any such action,
claim or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or in addition to those available to
the indemnifying party and that the assertion of such defenses would create a
conflict of interest such that counsel employed by the indemnifying party could
not faithfully represent the indemnified party (in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest
would exist between such indemnified party and any other of such indemnified
parties with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld or delayed.
5.4 If the indemnification required by this Section 5 from the
indemnifying party is determined by a court of competent jurisdiction to be
unavailable to an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to in this Section 5:
5.4.1 The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among
other things, whether any Violation has been committed by, or relates
to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The
amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 5.1 and 5.2,
any legal or other fees or expenses reasonably incurred by such party
in connection with any investigation or proceeding.
27
5.4.2 The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5.4 were determined
by pro rata allocation or by any other method of allocation which does
not take into account the equitable considerations referred to in
Section 5.4.1. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of a fraudulent
misrepresentation.
5.5 If indemnification is available under this Section 5, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 5 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 5.4.
5.6 The obligations of the Company and the Selling Holders under this
Section 5 shall survive the completion of any offering of Registrable Shares
pursuant to the Registration Statement and any termination of this Agreement.
6. Amendment, Modification and Waivers; Further Assurances.
6.1 This Agreement may be amended with the consent of the Company and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it; in each case only if the Company shall
have obtained the written consent of Holders holding more than 50% of the
Registrable Shares. Such amendment, action or omission shall not require the
consent of any other Holder. In addition, the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
that affects the rights hereunder of a specific Holder with the written consent
of such Holder.
6.2 No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provisions
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance with such provision.
6.3 Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
7. Miscellaneous.
7.1 Business Day. Whenever this Agreement requires that an action be
taken or a notice be given on a date that would otherwise not be a Business Day,
the time period for taking such action or giving such notice shall be extended
to the first day thereafter that is a Business Day.
7.2 Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the state of New York, without giving regard to the
conflict of laws principles thereof.
7.3 Notices. All notices, requests, demands, consents, approvals,
designations and other deliveries and communications called for or contemplated
by this Agreement shall be in
28
writing and shall be given (i) in the case of Shareholder or the Company, to the
address and in the manner set forth in Section 7 of the Stock Agreement, and
(ii) in the case of any Holder other than Shareholder, in the manner set forth
in Section 7 of the Stock Agreement and to the address provided to the Company
in such Holder's Joinder Agreement.
7.4 Entire Agreement; Integration. This Agreement, together with the
Stock Agreement, supersedes all prior agreements between or among any of the
parties hereto with respect to the subject matter contained herein and therein,
and such agreements embody the entire understanding among the parties relating
to such subject matter.
7.5 Section Headings. Section headings are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
7.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
7.7 Severability. If any provision of this Agreement shall be invalid
or unenforceable, such invalidity or unenforceability shall not affect the
validity and enforceability of the remaining provisions of this Agreement,
unless the result thereof would be unreasonable, in which case the parties
hereto shall negotiate in good faith as to appropriate amendments hereto.
7.8 Termination. This Agreement may be terminated at any time by a
written instrument signed by the parties hereto. Unless sooner terminated in
accordance with the preceding sentence, this Agreement (other than Section 5
hereof) shall terminate in its entirety on such date as there shall be no
Registrable Shares.
7.9 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 successful party shall be entitled to recover
reasonable attorneys' fees (including any fees incurred in any appeal) in
addition to its costs and expenses and any other available remedy.
7.10 No Third Party Beneficiaries or Assignees. Nothing herein
expressed or implied is intended to confer upon any person, other than the
parties hereto or the Holders (to the extent expressly provided herein) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement. Neither this Agreement not the rights or obligations hereunder may be
assigned or otherwise transferred by any Holder except as permitted herein with
respect to a Transfer of Registrable Shares.
7.11 Starwood Hotels & Resorts Trust. The parties hereto understand and
agree that the name "Starwood Hotels & Resorts Trust" is a designation of the
Trust and its trustees (as trustees but not personally) under the Trust's
Declaration of Trust, and all persons dealing with the Trust shall look solely
to the Trust's assets for the enforcement of any claims against the Trust, and
that the Trustees, officers, agents and security holders of the Trust assume no
personal liability for obligations entered into on behalf of the Trust, and
their respective individual assets shall not be subject to the claims of any
person relating to such obligations.
29
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
"Shareholder"
D.C. OVERNIGHT PARTNERS, L.P.,
a District of Columbia limited partnership
By: D.C. OVERNIGHT, INC., a District of Columbia
corporation, its sole General Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
President
STARWOOD HOTELS & RESORTS TRUST
a Maryland real estate investment trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
STARWOOD HOTELS & RESORTS WORLDWIDE, INC.
a Maryland corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
30
ANNEX A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee or the intended transferee of
_________ Paired Shares (the "Registrable Shares") of Starwood Hotels & Resorts
Trust, a Maryland real estate investment trust, and Starwood Lodging
Corporation, a Maryland corporation (together, the "Company"), as a condition to
the transfer to and acquisition by the undersigned of such Registrable Shares,
acknowledges that matters pertaining to the sale and registration of such
Registrable Shares are governed by the Registration Rights Agreement (the
"Registration Rights Agreement"), dated as of January 15, 1998, initially among
the Company and D.C. Overnight Partners, L.P., a District of Columbia limited
partnership, and the undersigned hereby (1) acknowledges receipt of a copy of
such agreement, and (2) agrees to be bound as a "Holder" by the terms of the
Registration Rights Agreement, as the same has been or may be amended from time
to time.
Agreed to this ____ day of __________, _____.
___________________________________
By: __________________________
Its: __________________________
Address, telephone number and telecopy number
for notices:
___________________________________
___________________________________
___________________________________
___________________________________
31
ANNEX B
to Registration
Rights Agreement
[Letterhead of Selling Holder]
____________, 199__
BY TELECOPIER
Starwood Hotels & Resorts Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or Chief Financial Officer
Starwood Hotels & Resorts Worldwide, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or Vice President
Re: Starwood Hotels & Resorts
Ladies and Gentlemen:
Reference is made to the prospectus (the "Prospectus") included in the
Registration Statement on Form S-3 (Registration No. ___________) filed by
Starwood Hotels & Resorts Trust (the "Trust") and Starwood Hotels & Resorts
Worldwide, Inc. (the "Corporation" and, together with the Trust, the "Company")
with the Securities and Exchange Commission on _________, 1998, under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration for resale by the shareholders named therein of certain shares of
beneficial interest, par value $.01 per share, of the Trust, and shares of
common stock, par value $.01 per share, of the Corporation (the "Paired
Shares"), including _______ Paired Shares held by the undersigned.
___________ of the Paired Shares held by the undersigned were offered
for sale and have been sold by the undersigned in a manner consistent with the
description set under the caption "Plan of Distribution" in the Prospectus.
Thus, the undersigned requests that new certificates evidencing such Paired
Shares be issued in the name of _________________________, the transferee, free
of any restrictive legend under the Securities Act.
Very truly yours,
[Name and signature of Selling Holder]
32
ANNEX C
to Registration
Rights Agreement
[Letterhead of Selling Holder]
____________, 199__
BY TELECOPIER
Sidley & Austin
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Re: Starwood Hotels & Resorts
Ladies and Gentlemen:
Reference is made to the prospectus (the "Prospectus") included in the
Registration Statement on Form S-3 (Registration No. ___________) filed by
Starwood Hotels & Resorts Trust (the "Trust") and Starwood Hotels & Resorts
Worldwide, Inc. (the "Corporation" and, together with the Trust, the "Company")
with the Securities and Exchange Commission on _________, 1998, under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration for resale by the shareholders named therein of certain shares of
beneficial interest, par value $.01 per share, of the Trust, and shares of
common stock, par value $.01 per share, of the Corporation (the "Paired
Shares"), including _______ Paired Shares held by the undersigned.
The undersigned understands that you have been requested by the Company
to deliver an opinion to the Company's transfer agent that, upon the sale by the
undersigned of the Paired Shares, certificates evidencing such shares may be
issued to the transferee(s) without any restrictive legend under the Securities
Act. For the purpose of facilitating the delivery by you of such opinion, the
undersigned, hereby represents that _______ of the Paired Shares held by the
undersigned were offered for sale and have been sold in a manner consistent with
the description set under the caption "Plan of Distribution" in the Prospectus.
The undersigned understands that you will be relying on the foregoing
representations in rendering your opinion, and the undersigned consents to such
reliance.
Very truly yours,
[Name and signature of Selling Holder]