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EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
Dated as of February 18, 1999
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TABLE OF CONTENTS
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Section 1. Skadden numbering in effect.Exceptions to the current outline style can be
created by pressing CTRL+SHIFT+F5. This inserts only a ParaNum code. You may type any
additional text or formatting codes that you need, such as brackets or unusual indents.
Definitions .......................................................................................2
Section 2. Registration Under the Securities Act...............................................5
(a) Required Registration.....................................................................6
(b) Incidental Registration...................................................................9
(c) Expenses.................................................................................11
(d) Effective Registration Statement; Suspension.............................................11
(e) Selection of Underwriters................................................................12
Section 3. Restrictions on Public Sale by Wyndham.............................................12
Section 4. Registration Procedures............................................................12
Section 5. Indemnification; Contribution......................................................19
(a) Indemnification by Wyndham...............................................................19
(b) Indemnification by Holders...............................................................20
(c) Conduct of Indemnification Proceedings...................................................20
(d) Contribution.............................................................................21
(b) Amendments and Waivers...................................................................23
(c) Notices..................................................................................24
(d) Successors and Assigns...................................................................24
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable Securities.....................25
(f) Counterparts.............................................................................25
(g) Descriptive Headings, Etc................................................................25
(i) Governing Law............................................................................26
(j) Specific Performance.....................................................................26
(k) Entire Agreement.........................................................................26
(i)
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REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
February 18, 1999, by and among Wyndham International, Inc., a Delaware
corporation ("Wyndham"), the other Persons (as hereinafter defined) listed on
the signature pages hereof (herein referred to collectively, along with their
respective affiliates and successors who from and after the date hereof acquire
or are otherwise the transferee of any Registrable Securities (as hereinafter
defined), as the "Initial Holders" and individually, as an "Initial Holder") and
any other Person that shall from and after the date hereof acquire or otherwise
be the transferee of any Registrable Securities and who shall be a Permitted
Transferee (as hereinafter defined) of any Initial Holder (herein referred to
collectively as the "Holders" and individually as a "Holder").
WHEREAS, Wyndham and Patriot American Hospitality, Inc.
("Patriot" and, together with Wyndham, the "Companies"), Wyndham International
Operating Partnership, L.P. and Patriot American Hospitality Partnership, L.P.
have entered into a Securities Purchase Agreement, dated as of February 18, 1999
(the "Securities Purchase Agreement"), with the Initial Holders, which provides,
upon the terms and subject to the conditions thereof, for the purchase by the
Initial Holders of shares of Wyndham's Series B Convertible Preferred Stock, par
value $0.01 per share (the "Series B Preferred Stock");
WHEREAS, the Series B Preferred Stock will be convertible,
upon the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class B Common Stock, par value
$0.01 per share (the "Class B Common Stock"), of Wyndham; and
WHEREAS, in the event of any transfer of any shares of Series
B Preferred Stock to any Person other than an Initial Holder, such shares of
Series B Preferred Stock will automatically convert, upon the terms and subject
to the conditions set forth in the Certificate of Designation relating thereto,
into shares of Series A Convertible Preferred Stock, par value $0.01 per share
(the "Series A Preferred Stock"), of Wyndham;
WHEREAS, the Series A Preferred Stock will be convertible,
upon the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class A Common Stock, par value
$0.01 per share (the "Class A Common Stock"), of Wyndham;
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WHEREAS, in the event of any transfer of any shares of Class B
Common Stock to any Person other than an Initial Holder, such shares of Class B
Common Stock will automatically convert, upon the terms and subject to the
conditions set forth in the Restated Certificate of Incorporation of Wyndham;
and
WHEREAS, in order to induce the Initial Holders to complete
the transactions contemplated by the Securities Purchase Agreement, Wyndham has
agreed to provide registration rights on the terms and subject to the conditions
provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
Section 1. Definitions.
(1) As used in this Agreement, the following terms shall have
the following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act.
"Blackout Period" shall have the meaning set forth in Section
2(a)(i).
"Class A Common Stock" shall have the meaning set forth in the
preamble; provided, that if there shall be only one authorized class of
Wyndham's common stock at the time, Class A Common Stock shall be deemed to
refer to such common stock.
"Class B Common Stock" shall have the meaning set forth in the
preamble.
"Closing" shall mean the date upon which the purchase and sale
of the Preferred Stock pursuant to the Securities Purchase Agreement occurs.
"Companies" shall have the meaning set forth in the preamble
and shall also include Patriot's and Wyndham's successors.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Holder" shall have the meaning set forth in the preamble.
"Incidental Registration" shall mean a registration required
to be effected by Wyndham pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration
statement of Wyndham, as provided in Section 2(b), which covers any of the
Registrable Securities on an appropriate form in accordance with the Securities
Act and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Initial Holder(s)" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean Holders of the Registrable
Securities as to which registration has been requested representing in the
aggregate a majority of such shares beneficially owned by Holders.
"Market Value" shall mean, with respect to the Series A
Preferred Stock or the Class A Common Stock, the average, rounded to the nearest
cent ($0.01), of the closing price per share of the Series A Preferred Stock or
the Class A Common Stock, respectively, on the New York Stock Exchange for
twenty consecutive calendar days ending on the trading day immediately preceding
the date in question.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Permitted Transferee" shall mean any Person which would be a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act.
"Person" shall mean any individual, limited or general
partnership, corporation, trust, joint venture, association, joint stock company
or unincorporated organization.
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"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities and by
all other amendments and supplements to such Prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Securities" shall mean (i) any shares of Class B
Common Stock issued or issuable upon conversion of any shares of Series B
Preferred Stock, (ii) any shares of Series A Preferred Stock issued or issuable
upon conversion of the shares of Series B Preferred Stock, (iii) any shares of
Class A Common Stock issued or issuable upon conversion of any shares of Series
A Preferred Stock described in clause (ii) above, and (iv) any securities issued
or issuable with respect to any Series A Preferred Stock, Series B Preferred
Stock, Class A Common Stock or Class B Common Stock described in clauses (i),
(ii) and (iii) above by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation,
reorganization or otherwise.
"Registration Expenses" shall mean (i) all registration,
listing, qualification and filing fees (including NASD filing fees), (ii) fees
and disbursements of counsel for Wyndham, (iii) accounting fees incident to any
such registration, (iv) blue sky fees and expenses (including counsel fees in
connection with the preparation of a Blue Sky Memorandum and legal investment
survey), (v) all expenses of any Persons in preparing or assisting in preparing,
printing, distributing, mailing and delivering any Registration Statement, any
Prospectus, any underwriting agreements, transmittal letters, securities sales
agreements, securities certificates and other documents relating to the
performance of and compliance with this Agreement, (vi) the expenses incurred in
connection with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of Registrable
Securities which are customarily borne by the issuer, and (v) all internal
expenses of Wyndham (including all salaries and expenses of officers and
employees performing legal or accounting duties), provided, however, that
Registration Expenses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement
of Wyndham which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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"Required Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(i).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Securities Purchase Agreement" shall have the meaning set
forth in the preamble.
"Selling Expenses" shall mean underwriting discounts, selling
commissions and stock transfer taxes applicable to the shares registered by the
Holders, fees and disbursements of counsel for the Holders retained by them
(other than with respect to the fees and disbursements made in connection with
the preparation of a Blue Sky Memorandum and legal investment survey).
"Series A Preferred Stock" shall have the meaning set forth in
the preamble.
"Series B Preferred Stock" shall have the meaning set forth in
the preamble.
"Shelf Registration" shall mean a registration required to be
effected pursuant to Section 2(a)(ii).
"Shelf Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(ii).
"Underwriter" shall have the meaning set forth in Section
5(a).
"Underwritten Offering" shall mean a sale of securities of
Wyndham to an Underwriter or Underwriters for reoffering to the public.
(2) Capitalized terms used herein and not otherwise defined
shall have the meanings assigned such terms in the Securities Purchase
Agreement.
Section 2. Registration Under the Securities Act.
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(a) Required Registration.
(1) Right to Require Registration. One or more Holders of
Registrable Securities shall have the right from time to time to request in
writing (a "Request") which Request shall specify the Registrable Securities
intended to be disposed of by such Holders and the intended method of
distribution thereof) that Wyndham register such Holders' Registrable Securities
by filing with the SEC a Required Registration Statement. Upon the receipt of
such a Request, Wyndham will, by the fifth business day thereafter, give written
notice of such requested registration to all Initial Holders of Registrable
Securities, and, not later than the 45th calendar day after the receipt of such
a Request by Wyndham, Wyndham will use all reasonable efforts to cause to be
filed with the SEC a Required Registration Statement covering the Registrable
Securities which Wyndham has been so requested to register by Holders thereof
other than the Initial Holder(s) initiating the Request by written request given
to Wyndham within 9 business days after the giving of such written notice by
Wyndham, providing for the registration under the Securities Act of the
Registrable Securities which Wyndham has been so requested to register by all
such Holders, to the extent necessary to permit the disposition of such
Registrable Securities so to be registered in accordance with the intended
methods of distribution thereof specified in such Request or further requests,
and shall use all reasonable efforts to have such Required Registration
Statement declared effective by the SEC as soon as practicable thereafter and to
keep such Required Registration Statement continuously effective for a period of
at least 60 calendar days (or, in the case of an Underwritten Offering, such
period as the Underwriters shall reasonably require) following the date on which
such Required Registration Statement is declared effective (or such shorter
period which will terminate when all of the Registrable Securities covered by
such Required Registration Statement have been sold pursuant thereto),
including, if necessary, by filing with the SEC a post-effective amendment or a
supplement to the Required Registration Statement or the related Prospectus or
any document incorporated therein by reference or by filing any other required
document or otherwise supplementing or amending the Required Registration
Statement, if required by the rules, regulations or instructions applicable to
the registration form used by Wyndham for such Required Registration Statement
or by the Securities Act, the Exchange Act, any state securities or blue sky
laws, or any rules and regulations thereunder.
Wyndham shall not be required to effect, pursuant to this
Section 2(a)(i), (i) a Required Registration hereunder unless Holders
beneficially owning Registrable Securities with an aggregate Market Value of $50
million have initiated
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or joined in such Request and (ii) more than eight registrations in the
aggregate requested by the Holders, provided that so long as the Holders
collectively beneficially own Registrable Securities with a Market Value of at
least $100 million, the Holders shall have the right to require Wyndham to
effect additional Required Registrations provided that the Registrable
Securities included therein have an aggregate Market Value of at least $50
million and provided further that any Investor proposing to distribute its
Registrable Securities to its partners or shareholders shall have the right to
require Wyndham to effect an additional Required Registrations to facilitate
such distribution.
A Request may be withdrawn prior to the filing of the Required
Registration Statement by the Holder(s) which made such Request (a "Withdrawn
Request") and a Required Registration Statement may be withdrawn prior to the
effectiveness thereof by the Holders of a majority of the Registrable Securities
included therein (a "Withdrawn Required Registration"), and, in either such
event, such withdrawal shall be treated as a Required Registration which shall
have been effected pursuant to clause (ii) of the immediately preceding
paragraph, except that the Holders may require Wyndham to disregard one
Withdrawn Request for purposes of such clause (ii).
The Holders shall not, without Wyndham's consent, be entitled
to deliver a Request for a Required Registration after the completion of the
Required Registration if less than 90 calendar days have elapsed since (A) the
effective date of a prior Required Registration Statement, (B) in the case of a
Required Registration which is effected other than by means of an Underwritten
Offering, the date of sale by the Holders of their Registrable Securities
pursuant thereto or (C) the date of withdrawal of a Withdrawn Required
Registration.
Notwithstanding the foregoing, from and after the Closing,
Wyndham may delay the filing of a Required Registration Statement if the Board
of Directors of Wyndham determines that such action is in the best interests of
Wyndham's stockholders, and only for an aggregate number of days, taken together
with any Blackout Period invoked pursuant to Section 2(a)(ii), not to exceed 60
days in any twelve month period (a "Blackout Period").
The registration rights granted pursuant to the provisions of
this Section 2(a)(i) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
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(2) Shelf Registration. Promptly upon the Request of the
Holders (but in no event later than the 75th calendar day after the receipt of
such a Request), the Company shall use its reasonable best efforts to promptly
process, file and cause to become effective a Registration Statement on Form S-3
(the "Shelf") for an offering of Registrable Securities to be made on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act (or any
similar rule that may be adopted by the SEC) and permitting sales in ordinary
course brokerage or dealer transactions not involving an Underwritten Offering.
Each Holder which owns, on the date of the initial filing of the Shelf (the
"Initial Filing Date"), Registrable Securities (each such Holder, an "Eligible
Holder") shall have the right to resell such Registrable Securities under the
Shelf until the date that such Eligible Holder sells all of such Registrable
Securities, whether or not under the Shelf (such Eligible Holder's "Termination
Date"). The Company agrees to use its reasonable best efforts to keep the Shelf
continuously effective and usable for resale of Registrable Securities until all
Eligible Holders lose their rights to resell Registrable Securities under the
Shelf .
Notwithstanding the foregoing, (A) from the Closing and until
the effectiveness of a Shelf Registration Statement, Wyndham may delay the
filing of a Shelf Registration Statement, or (B) from and after the
effectiveness of a Shelf Registration Statement, each Holder agrees that it will
not effect any sales of the Registrable Securities pursuant to the Shelf
Registration, in either case, if the Board of Directors of Wyndham determines
that such action is in the best interests of Wyndham's stockholders, and only
for a Blackout Period, taken together with any Blackout Period invoked pursuant
to Section 2(a)(i), not to exceed 60 days.
The registration rights granted pursuant to the provisions of
this Section 2(a)(ii) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(3) Priority in Required and Shelf Registrations. If a
Required or Shelf Registration pursuant to this Section 2(a) involves an
Underwritten Offering, and the sole Underwriter or the lead managing
Underwriter, as the case may be, of such Underwritten Offering shall advise
Wyndham in writing (with a copy to each Holder requesting registration) on or
before the date 5 days prior to the date then scheduled for such offering that,
in its opinion, the amount of Registrable Securities requested to be included in
such Required or Shelf Registration exceeds the amount which can be sold in such
offering without adversely affecting the distribution of the Registrable
Securities being offered, Wyndham will include in such Required or Shelf
Registration only the amount of Registrable Securities that Wyndham is so
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advised can be sold in such offering; provided, however, that Wyndham shall be
required to include in such Required or Shelf Registration: first, all
Registrable Securities requested to be included in the Required or Shelf
Registration by the Holders and, to the extent not all such Registrable
Securities can be included in such Required Registration, the number of
Registrable Securities to be included shall be allocated pro rata on the basis
of the number of shares of Preferred Stock or Common Stock (whichever is
applicable) beneficially owned at that time by all the Holders requesting to
participate in the Required or Shelf Registration or on such other basis as
shall be agreed among the Holders, by agreement of the Majority Holders; and
second, if all Registrable Securities requested to be included in the Required
or Shelf Registration by the Holders can be so included, all other securities
requesting, in accordance with any registration rights which are granted in
compliance with Section 6(a), to be included in such Required Registration which
are of the same class as the Registrable Securities and, to the extent not all
such securities can be included in such Required or Shelf Registration, the
number of securities to be included shall be allocated pro rata among the
holders thereof requesting inclusion in such Required or Shelf Registration on
the basis of the number of securities requested to be included by all such
holders.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If at any time
Wyndham proposes to register any of their Preferred Stock or Common Stock under
the Securities Act (other than (A) any registration of public sales or
distributions solely by and for the account of Wyndham of securities issued (x)
pursuant to any employee benefit or similar plan or any dividend reinvestment
plan or (y) in any acquisition by Wyndham, or (B) pursuant to Section 2(a)
hereof), either in connection with a primary offering for cash for the account
of Wyndham or a secondary offering, Wyndham will, each time it intends to effect
such a registration, give written notice to all Initial Holders of Registrable
Securities at least 10 business days prior to the initial filing of a
Registration Statement with the SEC pertaining thereto, informing such Initial
Holders of its intent to file such Registration Statement and of the Holders'
rights to request the registration of the Registrable Securities held by the
Holders under this Section 2(b) (the "Company Notice"). Upon the written request
of any Initial Holder made within 7 business days after any such Company Notice
is given (which request shall specify the Registrable Securities intended to be
disposed of by such Initial Holder and such Initial Holder's Permitted
Transferees and, unless the applicable registration is intended to effect a
primary offering of Preferred Stock or Common Stock for cash for the account of
Wyndham, the intended method of
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distribution thereof), Wyndham will use all reasonable efforts to effect the
registration under the Securities Act of all Registrable Securities which
Wyndham has been so requested to register by such Initial Holders to the extent
required to permit the disposition (in accordance with the intended methods of
distribution thereof or, in the case of a registration which is intended to
effect a primary offering for cash for the account of Wyndham, in accordance
with Wyndham's intended method of distribution) of the Registrable Securities so
requested to be registered, including, if necessary, by filing with the SEC a
post-effective amendment or a supplement to the Incidental Registration
Statement or the related Prospectus or any document incorporated therein by
reference or by filing any other required document or otherwise supplementing or
amending the Incidental Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by Wyndham
for such Incidental Registration Statement or by the Securities Act, any state
securities or blue sky laws, or any rules and regulations thereunder; provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the Incidental
Registration Statement filed in connection with such registration, Wyndham shall
determine for any reason not to register or to delay registration of such
securities, Wyndham may, at its election, give written notice of such
determination to each Initial Holder of Registrable Securities and, thereupon,
(A) in the case of a determination not to register, Wyndham shall be relieved of
their obligation to register any Registrable Securities in connection with such
registration (but not from their obligation to pay the Registration Expenses
incurred in connection therewith), and (B) in the case of a determination to
delay such registration, Wyndham shall be permitted to delay registration of any
Registrable Securities requested to be included in such Incidental Registration
Statement for the same period as the delay in registering such other securities.
The registration rights granted pursuant to the provisions of
this Section 2(b) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration
pursuant to this Section 2(b) involves an Underwritten Offering of the
securities so being registered, whether or not for sale for the account of
Wyndham, and the sole Underwriter or the lead managing Underwriter, as the case
may be, of such Underwritten Offering shall advise Wyndham in writing (with a
copy to each Initial Holder of Registrable Securities requesting registration)
on or before the date 5 days prior to the date then scheduled for such offering
that, in its opinion, the amount of securities (including Registrable
Securities) requested to be included in such registration
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exceeds the amount which can be sold in (or during the time of) such offering
without adversely affecting the distribution of the securities being offered,
then Wyndham will include in such registration: first, all the securities
entitled to be sold pursuant to such Registration Statement without reference to
the incidental registration rights of any holder (including the Holders), and
second, the amount of other securities (including Registrable Securities)
requested to be included in such registration that Wyndham is so advised can be
sold in (or during the time of) such offering, allocated, if necessary, pro rata
among the holders (including the Holders) thereof requesting such registration
on the basis of the number of the securities (including Registrable Securities)
beneficially owned at the time by the holders (including the Holders) requesting
inclusion of their securities; provided, however, that in the event Wyndham will
not, by virtue of this paragraph, include in any such registration all of the
Registrable Securities of any Holder requested to be included in such
registration, such Holder may, upon written notice to Wyndham given within 3
days of the time such Holder first is notified of such matter, reduce the amount
of Registrable Securities it desires to have included in such registration,
whereupon only the Registrable Securities, if any, it desires to have included
will be so included and the Holders not so reducing shall be entitled to a
corresponding increase in the amount of Registrable Securities to be included in
such registration.
(c) Expenses. Wyndham agrees to pay all Registration Expenses
in connection with (i) each of the registrations requested pursuant to Section
2(a) and (ii) each registration as to which Holders request inclusion of
Registrable Securities pursuant to Section 2(b). All Selling Expenses relating
to securities registered on behalf of the Holders shall be borne by the Holders
of shares included in such registration, other selling stockholders and Wyndham
pro rata on the basis of the number of shares of Preferred Stock or Common Stock
so registered.
(d) Effective Registration Statement; Suspension. Subject to
the third paragraph of Section 2(a)(i), a Registration Statement pursuant to
Section 2(a) will not be deemed to have become effective (and the related
registration will not be deemed to have been effected) unless it has been
declared effective by the SEC prior to a request by the Holders of a majority of
the Registrable Securities included in such registration that such Registration
Statement be withdrawn; provided, however, that if, after it has been declared
effective, the offering of any Registrable Securities pursuant to such
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court shall
have been in effect for at least 30 days, such Registration Statement will
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be deemed not to have become effective and the related registration will not be
deemed to have been effected.
(e) Selection of Underwriters. At any time or from time to
time, the Holders of a majority of the Registrable Securities covered by a
Required Registration Statement may elect to have such Registrable Securities
sold in an Underwritten Offering and may select the investment banker or
investment bankers and manager or managers that will serve as lead and
co-managing Underwriters with respect to the offering of such Registrable
Securities, subject to the consent of Wyndham which shall not be unreasonably
withheld. No Holder may participate in any Underwritten Offering hereunder
unless such Holder (a) agrees to sell such Holder's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents required under the terms of such
Underwritten Offering.
Section 3. Restrictions on Public Sale by Wyndham.
If requested by the sole Underwriter or lead managing
Underwriter(s) in such Underwritten Offering, Wyndham agrees not to effect any
public sale or distribution (other than public sales or distributions solely by
and for the account of Wyndham of securities issued pursuant to any employee
benefit or similar plan or any dividend reinvestment plan) of any securities
during the period commencing on the date Wyndham receives a Request from any
Initial Holder and continuing until (a) for a Registration Statement relating to
such Underwritten Offering other than a Shelf Registration, 90 days after such
Registration Statement is declared effective by the SEC and (b) for a Shelf
Registration Statement relating to such Underwritten Offering, 90 days after the
commencement of such Underwritten Offering, (or for such shorter period as the
sole or lead managing Underwriter shall request) unless earlier terminated by
the sole Underwriter or lead managing Underwriter(s) in such Underwritten
Offering.
Section 4. Registration Procedures.
In connection with the obligations of Wyndham pursuant to
Section 2, Wyndham shall use all reasonable efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities Act
to permit the sale of
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such Registrable Securities by the Holders in accordance with their intended
method or methods of distribution, and Wyndham shall:
(a) (i) prepare and file a Registration Statement with the SEC
which (x) shall be on Form S-3 (or any successor to such form), if available,
(y) shall be available for the sale or exchange of the Registrable Securities in
accordance with the intended method or methods of distribution by the selling
Holders thereof and (z) shall comply as to form with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith and all other information reasonably requested by the lead
managing Underwriter or sole Underwriter, if applicable, to be included therein,
(ii) use all reasonable efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2, (iii) use all
reasonable efforts to not take any action that would cause a Registration
Statement to contain a material misstatement or omission or to be not effective
and usable for resale of Registrable Securities during the period that such
Registration Statement is required to be effective and usable and (iv) cause
each Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Registration Statement,
amendment or supplement (x) to comply in all material respects with any
requirements of the Securities Act and the rules and regulations of the SEC and
(y) not to 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
therein not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and
file with the SEC such amendments and post-effective amendments to each such
Registration Statement, as may be necessary to keep such Registration Statement
effective for the applicable period; cause each such Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling
Holders thereof, as set forth in such registration statement;
(3) furnish to each Holder of Registrable Securities and to
each Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or Underwriter may reasonably request in order to facilitate the
public sale or other disposition of any Registrable Securities; Wyndham hereby
consents to the use of the
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Prospectus, including each preliminary Prospectus, by each Holder of Registrable
Securities and each Underwriter of an Underwritten Offering of Registrable
Securities, if any, in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or the preliminary Prospectus (the Holders
hereby agreeing not to make a broad public dissemination of a form of
preliminary Prospectus which is designed to be a "quiet filing" without
Wyndham's consent, such consent to not be withheld unreasonably);
(d) (i) use all reasonable efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if any,
or any Holder of Registrable Securities covered by a Registration Statement,
shall reasonably request; (ii) use all reasonable efforts to keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective; and (iii) do any and all other acts
and things which may be reasonably necessary or advisable to enable each such
Underwriter, if any, and Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that Wyndham shall not be obligated to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to consent to be subject to general service of process (other than service of
process in connection with such registration or qualification or any sale of
Registrable Securities in connection therewith) in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly,
and, if requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iii) if, between the
effective date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which Wyndham is a
party, the representations and warranties of Wyndham contained in such agreement
cease to be true and correct in all material respects or if Wyndham receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (iv) of the happening of any event during the
period a Registration Statement is effective as a result of which such
Registration Statement or the related Prospectus contains any untrue statement
of a
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material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for
the Holders of Registrable Securities copies of any request by the SEC or any
state securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible time;
(h) upon request, furnish to the sole Underwriter or lead
managing Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, at least one signed copy of each Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits; and
furnish to each Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(i) cooperate with the selling Holders of Registrable
Securities and the sole Underwriter or lead managing Underwriter of an
Underwritten Offering of Registrable Securities, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent with the
provisions of the governing documents thereof) and registered in such names as
the selling Holders or the sole Underwriter or lead managing Underwriter of an
Underwritten Offering of Registrable Securities, if any, may reasonably request
at least three business days prior to any sale of Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph
(e)(iv) of this Section, use all reasonable efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus,
or any document incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not 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
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therein, in the light of the circumstances under which they were made, not
misleading;
(k) enter into customary agreements (including, in the case of
an Underwritten Offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to indemnification
and contribution contained herein) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in connection therewith:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings;
(2) obtain opinions of counsel to Wyndham and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the lead managing Underwriter, if any, and
the Majority Holders of the Registrable Securities being sold)
addressed to each selling Holder and the Underwriters, if any, covering
the matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from
Wyndham's independent certified public accountants addressed to the
selling Holders of Registrable Securities, if permissible, and the
Underwriters, if any, which letters shall be customary in form and
shall cover matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with primary underwritten
offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders
and such representative of the selling Holders as the Majority Holders
of the Registrable Securities covered by any Registration Statement
relating to the Registration and providing for, among other things, the
appointment of such representative as agent for the selling Holders for
the purpose of soliciting purchases of Registrable Securities, which
agreement shall be customary in form, sub-
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stance and scope and shall contain customary representations,
warranties and covenants; and (1)
(5) deliver such customary documents and certificates as may
be reasonably requested by the Majority Holders of the Registrable
Securities being sold or by the managing Underwriters, if any.
The above shall be done (i) at be effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (ii) at each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(l) make available for inspection by representatives of the
Initial Holders of the Registrable Securities and any Underwriters participating
in any disposition pursuant to a Registration Statement and any counsel or
accountant retained by such Holders or Underwriters, all relevant financial and
other records, pertinent corporate documents and properties of Wyndham and cause
the respective officers, directors and employees of Wyndham to supply all
information reasonably requested by any such representative, Underwriter,
counsel or accountant in connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Initial Holders of Registrable Securities and to counsel to such
Initial Holders and to the Underwriter or Underwriters of an Underwritten
Offering of Registrable Securities, if any; fairly consider such reasonable
changes in any such document prior to or after the filing thereof as the counsel
to the Holders or the Underwriter or the Underwriters may request and not file
any such document in a form to which the Majority Holders of Registrable
Securities being registered or any Underwriter shall reasonably object; and make
such of the representatives of Wyndham as shall be reasonably requested by the
Holders of Registrable Securities being registered or any Underwriter available
for discussion of such document;
(2) within a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus, provide copies of such document to counsel for the Holders;
fairly consider such reasonable changes in such document prior to or after the
filing thereof as counsel for such Holders or such Underwriter shall request;
and make such of the representatives
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of Wyndham as shall be reasonably requested by such counsel available for
discussion of such document;
(n) cause all Registrable Securities to be qualified for
inclusion in or listed on the New York Stock Exchange or any securities exchange
on which securities of the same class issued by Wyndham is then so qualified or
listed if so requested by the Majority Holders of Registrable Securities covered
by a Registration Statement, or if so requested by the Underwriter or
Underwriters of an Underwritten Offering of Registrable Securities, if any;
(o) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, including making available to its
security holders an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11 (a) of the Securities Act and Rule 158
thereunder;
(p) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
Underwriter in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution
and sale of any Registrable Securities to be offered pursuant to this Agreement,
including without limitation by making road show presentations, holding meetings
with potential investors and taking such other actions as shall be requested by
the Majority Holders of Registrable Securities covered by a Registration
Statement or the lead managing Underwriter of an Underwritten Offering, in each
case subject to the reasonable availability of Wyndham's executives given their
other duties.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a condition
to the registration obligations with respect to such Holder provided herein, to
furnish to Wyndham such information regarding such Holder required to be
included in the Registration Statement, the ownership of Registrable Securities
by such Holder and the proposed distribution by such Holder of such Registrable
Securities as Wyndham may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from
Wyndham of the happening of any event of the find described in paragraph (e)(iv)
of this Section, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the affected Registration Statement until
such Holder's receipt of the copies of the
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supplemented or amended Prospectus, contemplated by paragraph (j) of this
Section, and, if so directed by Wyndham, such Holder will deliver to Wyndham (at
the expense of Wyndham), all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities which was current at the time of receipt of such notice.
Section 5. Indemnification; Contribution.
(a) Indemnification by Wyndham. Wyndham agrees, jointly and
severally, to indemnify and hold harmless each Person who participates as an
underwriter (any such Person being an "Underwriter"), each Holder and their
respective partners, directors, officers and employees and each Person, if any,
who controls any Holder or Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any other claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of Wyndham; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel), incurred in
investigating, preparing or
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defending against any litigation, investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case
whether or not such Person is a party, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any Holder or
Underwriter with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, or the omission or
alleged omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to Wyndham by such Holder or Underwriter expressly
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Indemnification by Holders. (i) Each selling Holder
severally agrees to indemnify and hold harmless Wyndham, each Underwriter and
the other selling Holders, and each of their respective partners, directors,
officers and employees (including each officer of Wyndham who signed the
Registration Statement), and each Person, if any, who controls Wyndham, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
Securities Act, against any and all losses, liabilities, claims, damages,
judgments and expenses described in the indemnity contained in paragraph (a) of
this Section (provided that any settlement of the type described therein is
effected with the written consent of such selling Holder), as incurred, but only
with respect to untrue statements or alleged untrue statements of a material
fact contained in any Prospectus or the omissions, or alleged omissions
therefrom of a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in any
such case made in reliance upon and in conformity with written information
furnished to Wyndham by such selling Holder expressly for use in such
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified
party or parties shall give reasonably prompt notice to each indemnifying party
or parties of any action or proceeding commenced against it in respect of which
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indemnity may be sought hereunder, but failure so to notify an indemnifying
party or parties shall not relieve it or them from any liability which it or
they may have under this indemnity agreement, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. If
the indemnifying party or parties so elects within a reasonable time after
receipt of such notice, the indemnifying party or parties may assume the defense
of such action or proceeding at such indemnifying party's or parties' expense
with counsel chosen by the indemnifying party or parties and approved by the
indemnified party defendant in such action or proceeding, which approval shall
not be unreasonably withheld; provided, however, that, if such indemnified party
or parties determine in good faith that a conflict of interest exists and that
therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it or them which are different from or in addition
to those available to the indemnifying party, then the indemnifying party or
parties shall not be entitled to assume such defense and the indemnified party
or parties shall be entitled to separate counsel (limited in each jurisdiction
to one counsel for all Underwriters and another counsel for all other
indemnified parties under this Agreement) at the indemnifying party's or
parties' expense. If an indemnifying party or parties is not so entitled to
assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party or parties will pay the reasonable fees and expenses of
counsel for the indemnified party or parties (limited in each jurisdiction to
one counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement). No indemnifying party or parties will be liable
for any settlement effected without the written consent of such indemnifying
party or parties, which consent shall not be unreasonably withheld. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying party
or parties shall not, except as otherwise provided in this subsection (c), be
liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action or proceeding.
(d) Contribution. (i) In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in this Section is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms in respect
of any losses, liabilities, claims, damages, judgments and expenses suffered by
an indemnified party referred to therein, each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party
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as a result of such losses, liabilities, claims, damages, judgments and expenses
in such proportion as is appropriate to reflect the relative fault of Wyndham on
the one hand and of the liable selling Holders (including, in each case, that of
their respective officers, directors, employees and agents) on the other in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages, judgments or expenses, as well as any other
relevant equitable considerations. The relative fault of Wyndham on the one hand
and of the liable selling Holders (including, in each case, that of their
respective officers, directors, employees and agents) on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by Wyndham, on the one hand, or
by or on behalf of the selling Holders, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, liabilities, claims, damages, judgments and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
paragraph (c) of this Section, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
(ii) Wyndham and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in sub-paragraph (i) above. Notwithstanding the provisions of this paragraph
(d), in the case of distributions to the public, an indemnifying Holder shall
not be required to contribute any amount in excess of the amount by which (A)
the total price at which the Registrable Securities sold by such indemnifying
Holder and its affiliated indemnifying Holders and distributed to the public
were offered to the public exceeds (B) the amount of any damages which such
indemnifying Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who
controls a Holder or an Underwriter within the meaning of Section 15 of the
Securities Act (and their respective partners, directors, officers and
employees) shall have the same rights to contribution as such Holder or
Underwriter; and each director of Wyndham, each officer of Wyndham who signed
the Registration Statement, and each Person, if
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any, who controls Wyndham within the meaning of Section 15 of the Securities
Act, shall have the same rights to contribution as Wyndham.
Section 6. Miscellaneous.
(a) Inconsistent Agreements. Wyndham is not a party to, and
will not on or after the date of this Agreement enter into, any agreement which
conflicts with the provisions of this Agreement nor has Wyndham entered into any
such agreement, and Wyndham will not on or after the date of this Agreement
modify in any manner adverse to the Holders any such agreement; provided,
however, that nothing in this sentence shall prohibit Wyndham from granting
registration rights, which become exercisable from and after the Closing, to any
Person (a "Third Party") who becomes an owner of shares of any of Wyndham's
capital stock after the date hereof (including granting incidental registration
rights with respect to any Registration Statement required to be filed or
maintained hereunder) if and only if (i) the Third-Party's registration rights
(including, without limitation, demand registration rights) provide to the
Holders of Registrable Securities who seek to participate in such registration
(whether or not such registration is initiated hereunder) rights no less
favorable to such Holders than those rights provided to the Holders hereunder as
if such registration were a Required Registration (including, without
limitation, the priority provisions contained in Section 2(a)(iii)), provided,
further, however, that if such registration is not initiated by the Initial
Holders such registration shall not be deemed one of the eight Required
Registrations for purposes of the limitations contained in the second paragraph
of Section 2(a)(i), and (ii) the Third Party is required to enter into the
agreements provided for in Section 3 hereof (as if it were Wyndham) on the terms
and for the period applicable to Wyndham (including preventing sales pursuant to
Rule 144 under the Securities Act) if requested by the sole Underwriter or lead
managing Underwriter in an Underwritten Offering initiated by Holders of
Registrable Securities pursuant to Section 2(a). The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of Wyndham's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless Wyndham has obtained the written consent of a majority
of the Holders and, if any such amendment, modification, supplement, waiver or
consent would adversely affect the rights of any Holder hereunder, the written
consent of each Holder which is affected shall be obtained; provided, however,
that nothing herein
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shall prohibit any amendment, modification, supplement, waiver or consent the
effect of which is limited only to those Holders who have agreed to such
amendment, modification, supplement, waiver or consent.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to Wyndham by means of a notice
given in accordance with the provisions of this paragraph (c), which address
initially is, with respect to each Holder as of the date hereof, the address set
forth next to such Holder's name on the signature pages hereof with a copy to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., telecopier number (▇▇▇) ▇▇▇-▇▇▇▇, and with respect to
each Holder who becomes such after the date hereof, the address of such Holder
in the stock records of Wyndham, (ii) if to Wyndham, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, telecopier number (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
General Counsel, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C., telecopier number (617)
523-1231, and thereafter at such other address, notice of which is given in
accordance with the provisions of this paragraph. Notwithstanding the foregoing,
Wyndham shall not be obligated to provide any notice to any Holder which is not
an Initial Holder except with respect to a Required or Incidental Registration
Statement which has been filed and pursuant to which such Holder is identified
as a selling stockholder.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to a courier guaranteeing overnight
delivery. Notwithstanding the foregoing, nothing in this Section 6(c) is
intended to enlarge the class of Persons which are Holders, as defined in the
preamble of this Agreement, and thus entitled to the rights granted hereunder.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder shall
acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and to receive the benefits
hereof. Notwithstanding the foregoing, nothing in this Section 6(d) is intended
to enlarge the class of Persons which are
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Holders, as defined in the preamble of this Agreement, and thus entitled to the
rights granted hereunder. For purposes of this Agreement, "successor" for any
entity other than a natural person shall mean a successor to such entity as a
result of such entity's merger, consolidation, liquidation, dissolution, sale of
substantially all of its assets, or similar transaction.
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Registrable Securities, to any and all
securities or capital stock of Wyndham or any successor or assign of Wyndham
(whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for, or in substitution of such Registrable
Securities, by reason of any dividend, split, issuance, reverse split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise. Upon the occurrence of any of such events, Preferred Stock and Common
Stock amounts hereunder shall be appropriately adjusted if necessary.
(f) Counterparts. This Agreement may be executed in two or
more counterparts, each of which, when so executed and delivered, shall be
deemed to be an original, but all of which counterparts, taken together, shall
constitute one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, paragraph and clause references are to the
Articles, Sections, paragraphs and clauses to this Agreement unless otherwise
specified; (4) the word "including" and words of similar import when used in
this Agreement shall mean "including, without limitation," unless otherwise
specified; (5) "or" is not exclusive; and (6) provisions apply to successive
events and transactions.
(h) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such
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provision, paragraph, word, clause, phrase or sentence in every other respect
and of the other remaining provisions, paragraphs, words, clauses, phrases or
sentences hereof shall not be in any way impaired, it being intended that all
rights, powers and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF).
(j) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform in any
material respect any of its obligations hereunder, and accordingly agree that
each party, in addition to any other remedy to which it may be entitled at law
or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the terms
and conditions of this Agreement in any court of the United States or any State
thereof having jurisdiction.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between Wyndham, on the one hand, and the
other parties to this Agreement, on the other, with respect to such subject
matter.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
WYNDHAM INTERNATIONAL, INC.
By: /s/
----------------------------------
Name:
Title:
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APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III,
L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc.,
its General Partner
Address:
1301 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ By: /s/
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Attention: Name:
Telecopier Number: Title:
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APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its
General Partner
By: Apollo Capital Management IV,
Inc., its General Partner
Address:
1301 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ By: /s/
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Attention: Name:
Telecopier Number: Title:
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
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Attention: By: /s/
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Telecopier Number: Name:
28
31
(▇▇▇) ▇▇▇-▇▇▇▇ Title:
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
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Attention: By: /s/
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Telecopier Number: Name:
(▇▇▇) ▇▇▇-▇▇▇▇ Title:
▇▇▇▇▇▇ ▇. ▇▇▇ CHARITABLE
INVESTMENT L.P.
Address: By: THL Equity Advisors IV, LLC
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Attention: By: /s/
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Telecopier Number: Name:
(▇▇▇) ▇▇▇-▇▇▇▇ Title:
THL-CCI LIMITED PARTNERSHIP
Address: By: THL Equity Advisors IV, LLC
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Attention: By: /s/
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Telecopier Number: Name:
(▇▇▇) ▇▇▇-▇▇▇▇ Title:
BEACON CAPITAL PARTNERS, L.P.
Address: By: Beacon Capital Partners, Inc.,
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ its General Partner
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: By: /s/
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Telecopier Number: Name:
29
32
(▇▇▇) ▇▇▇-▇▇▇▇ Title:
STRATEGIC REAL ESTATE
INVESTMENTS I, L.L.C.
Address:
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/
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Attention: Name:
Telecopier Number: Title:
(▇▇▇) ▇▇▇-▇▇▇▇