EXHIBIT 10.1
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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is entered into as of
June __, 1999 by and among Wyndham International, Inc., a Delaware corporation
(the "Company") and each of the parties listed on Schedule A hereto (each a
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"Holder" and collectively the "Holders").
WHEREAS, pursuant to the Offering Memorandum and Consent Solicitation
Statement of the Company, dated June 1, 1999, and the related Consent and Letter
of Transmittal, the Holders have agreed to exchange their limited partnership
interests in Wyndham International Operating Partnership, L.P. and/or Patriot
American Hospitality Partnership, L.P. for shares (the "Shares") of the
Company's Class A Common Stock issued without registration under the Securities
Act of 1933, as amended (the "Securities Act"); and
WHEREAS, the Company has agreed to file a registration statement
registering the resale of the Shares by the Holders, subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Registration.
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(a) The Company shall within sixty (60) days after the date of this
Agreement file a registration statement (the "Registration Statement") under
Rule 415 under the Securities Act relating to the sale by each of the Holders of
their Shares (as hereinafter defined) in accordance with the terms and
conditions hereof. The Company shall use reasonable efforts to cause the
Registration Statement to be declared effective by the Securities and Exchange
Commission (the "SEC"). The Company agrees to use reasonable efforts to keep the
Registration Statement continuously effective until the earliest of
(i) the date on which the Holders no longer hold any of the
Shares,
(ii) one year after the date on which the Shares were issued, or
(iii) the date on which all of the Shares owned by each
individual Holder may be sold in a ninety (90) day period pursuant to Rule
144 under the Securities Act.
(b) The Company shall have no obligation under Section 1(a) unless
the Holders satisfy and perform all conditions and obligations to be performed
by them under this Agreement, including but not limited to the covenants
contained in Section 6 hereof.
2. Registration Procedures.
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(a) The Company shall notify each Holder of the effectiveness of the
Registration Statement and shall furnish to each Holder such number of copies of
the Registration Statement (including any amendments, supplements and exhibits),
the prospectus contained therein (including each preliminary prospectus), any
documents incorporated by
reference in the Registration Statement and such other documents as any Holder
may reasonably request in order to facilitate its sale of the Shares in the
manner described in the Registration Statement.
(b) The Company shall prepare and file with the SEC from time to time
such amendments and supplements to the Registration Statement and prospectus
used in connection therewith as may be necessary to keep the Registration
Statement effective and to comply with the provisions of the Securities Act with
respect to the disposition of all the Shares until the earliest of the dates
provided in Section 1. Upon ten (10) business days' notice, the Company shall
file any supplement or post-effective amendment to the Registration Statement
with respect to any Holder's interests in or plan of distribution of Shares that
is reasonably necessary to permit the sale of such Holder's Shares pursuant to
the Registration Statement and the Company shall file any necessary listing
applications or amendments to the existing applications to cause the shares to
be then listed or quoted on the primary exchange or quotation system on which
the Company's Class A Common Stock is then listed or quoted.
(c) The Company shall promptly notify each Holder of, and confirm in
writing, any request by the SEC for amendments or supplements to the
Registration Statement or the prospectus related thereto or for additional
information. In addition, the Company shall promptly notify each Holder of, and
confirm in writing, the filing of the Registration Statement, any prospectus
supplement related thereto or any post-effective amendment to the Registration
Statement and the effectiveness of any post-effective amendment.
(d) The Company shall promptly notify each Holder, at any time when a
prospectus relating to the Registration Statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state any 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. In such
event and subject to Section 7 of this Agreement, the Company shall prepare and
furnish to each Holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of Shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
3. State Securities Laws. Subject to the conditions set forth in this
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Agreement, the Company shall, promptly after the filing of the Registration
Statement, file such documents as may be necessary to register or qualify the
Shares under the securities or "Blue Sky" laws of such states as any Holder may
reasonably request, and the Company shall use reasonable efforts to cause such
filings to become qualified; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws of
any such state in which it is not then qualified or to file any general consent
to service of process in any such state. Once qualified, the Company shall use
reasonable efforts to keep such filings qualified until the earlier of (a) such
time as all of the Shares have been disposed of in accordance with the intended
methods of disposition by the Holder as set forth in the Registration Statement,
(b) in the case of a particular state, a Holder has notified the Company that it
no longer requires qualified filing in
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such state in accordance with its original request for filing, or (c) the date
on which the Registration Statement ceases to be effective with the SEC. The
Company shall promptly notify each Holder of, and confirm in writing, the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Shares for sale under the securities or "Blue Sky" laws of
any jurisdiction or the initiation or threat of any proceeding for such purpose.
4. Expenses. The Company shall bear all expenses incurred by it in
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connection with the registration of the Shares pursuant to Section 1, except
that the Holders shall be responsible for any brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Shares and for all
legal, accounting and other expenses incurred by them in connection with the
Registration Statement.
5. Indemnification by the Company. The Company agrees to indemnify each
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of the Holders and their respective officers, directors, employees, agents,
representatives and affiliates, and each person or entity, if any, that controls
a Holder within the meaning of the Securities Act, and each other person or
entity, if any, subject to liability because of his, her or its connection with
a Holder, and any underwriter and any person who controls the underwriter within
the meaning of the Securities Act (an "Indemnitee") against any and all losses,
claims, damages, actions, liabilities, costs and expenses (including without
limitation reasonable attorneys' fees, expenses and disbursements documented in
writing), joint or several, arising out of or based upon any untrue or alleged
untrue statement of material fact contained in the Registration Statement or any
prospectus contained therein, or any omission or alleged omission to state
therein 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, except insofar as and to the extent that such statement or
omission arose out of or was based upon information regarding the Indemnitee or
its plan of distribution which was furnished to the Company by the Indemnitee
for use therein, provided, further that the Company shall not be liable to any
person who participates as an underwriter in the offering or sale of Shares or
any other person, if any, who controls such underwriter within the meaning of
the Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with information furnished to the
Company for use in connection with the Registration Statement or the prospectus
contained therein by such Indemnitee or (ii) such Indemnitee's failure to send
or give a copy of the final prospectus furnished to it by the Company at or
prior to the time such action is required by the Securities Act to the person
claiming an untrue statement or alleged untrue statement or omission or alleged
omission if such statement or omission was corrected in such final prospectus.
The obligations of the Company under this Section 5 shall survive the completion
of any offering of Shares pursuant to a Registration Statement under this
Agreement or otherwise and shall survive the termination of this Agreement.
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6. Covenants of Holders. Each of the Holders hereby agrees
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(a) to cooperate with the Company and to furnish to the Company all
such information in connection with the preparation of the Registration
Statement and any filings with any state securities commissions as the Company
may reasonably request,
(b) to the extent required by the Securities Act, to deliver or cause
delivery of the prospectus contained in the Registration Statement to any
purchaser of the shares covered by the Registration Statement from such Holder,
(c) to notify the Company of any sale of Shares by such Holder, and
(d) to indemnify the Company, its officers, directors, employees,
agents, representatives and affiliates, and each person, if any, who controls
the Company within the meaning of the Securities Act, and each other person, if
any, subject to liability because of his or her connection with the Company,
against any and all losses, claims, damages, actions, liabilities, costs and
expenses arising out of or based upon (i) any untrue statement or alleged untrue
statement of material fact contained in either the Registration Statement or the
prospectus contained therein, or any omission or alleged omission to state
therein 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, if and to the extent that such statement or omission arose out
of or was based upon information regarding such Holder or its plan of
distribution which was furnished to the Company by such Holder for use therein,
or (ii) the failure by such older to deliver or cause to be delivered the
prospectus contained in the Registration Statement (as amended or supplemented,
if applicable) furnished by the Company to such Holder to any purchaser of the
shares covered by the Registration Statement from such Holder.
Notwithstanding the foregoing, (i) in no event will any Holder have any
obligation under this Section 6 for amounts the Company pays in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of such Holder (which consent shall not be unreasonably
withheld) and (ii) the total amount for which any Holder shall be liable under
this Section 6 shall not in any event exceed the aggregate proceeds received by
him, her or it from the sale of such Holder's Shares in such registration. The
obligations of the Holders under this Section 6 shall survive the completion of
any offering of Shares pursuant to a Registration Statement under this Agreement
or otherwise and shall survive the termination of this Agreement.
7. Suspension of Registration Requirement.
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(a) The Company shall promptly notify each Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company shall use reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement as soon as
practicable.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use reasonable
efforts to cause the Registration Statement and any filings with any state
securities commission to be made or to become effective
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or to amend or supplement the Registration Statement shall be suspended in the
event and during such period pending negotiations relating to, or consummation
of, a transaction or the occurrence of an event that would require additional
disclosure of material information by the Company in the Registration Statement
or such filing (such circumstances being hereinafter referred to as a
"Suspension Event") that would make it impractical or unadvisable to cause the
Registration Statement or such filings to be made or to become effective or to
amend or supplement the Registration Statement, but such suspension shall
continue only for so long as such event or its effect is continuing but in no
event will that suspension exceed ninety (90) days. The Company agrees not to
exercise the rights set forth in this Section 7(b) more than twice in any twelve
month period. In the event any Holder requests registration during a Suspension
Event, the Company shall notify the Holder of the existence of such Suspension
Event.
(c) Each holder of Shares whose Shares are covered by the
Registration Statement filed pursuant to Section 1 hereof agrees, if requested
by the Company in the case of a nonunderwritten offering (a "Nonunderwritten
Offering") or if requested by the managing underwriter or underwriters in an
underwritten offering (an "Underwritten Offering," collectively with
Nonunderwritten Offering, the "Offering"), not to effect any public sale or
distribution of any of the securities of the Company of any class included in
such Offering, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act (except as part of such Offering), during the 15-day period prior
to, and during the 90-day period (or such longer period as may be required by
the managing underwriter or underwriters) beginning on, the date of pricing of
each Offering, to the extent timely notified in writing by the Company or the
managing underwriters. Furthermore, notwithstanding anything to the contrary set
forth in this Agreement, the Company's obligation under this Agreement to use
reasonable efforts to cause the Registration Statement and any filings with any
state securities commission to be made or to become effective or to amend or
supplement the Registration Statement shall be suspended in the event and during
such period as the Company is proceeding with an Underwritten Offering if the
Company is advised by the underwriters that the sale of Shares under a
Registration Statement would have a material adverse effect on the Underwritten
Offering.
8. Black-Out Period. Following the effectiveness of the Registration
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Statement and the filings with any state securities commissions, the Holders
agree that they will not effect any sales of the Shares pursuant to the
Registration Statement or any such filings at any time after they have received
notice from the Company to suspend sales (i) as a result of the occurrence or
existence of any Suspension Event, (ii) during any Offering, or (iii) so that
the Company may correct or update the Registration Statement or such filing
pursuant to Section 2(c) or 2(d). The Holders may recommence effecting sales of
the Shares pursuant to the Registration Statement or such filings following
further notice to such effect from the Company, which notice shall be given by
the Company not later than five (5) business days after the conclusion of any
such Suspension Event or Offering.
9. Additional Shares. The Company, at its option, may register, under
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any registration statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of its common
stock or any shares of its common stock owned by any other shareholder or
shareholders of the Company.
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10. Contribution. If the indemnification provided for in Sections 5 and
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6 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then 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, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and any Holder or Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, actions, liabilities, costs or expenses as well as any other
relevant equitable considerations. The relative fault of the Company, on the one
hand, and of the Holder or Holders, on the other hand, shall be determined by
reference to, among other factors, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates to
information supplied by the Company or by the Holder or Holders and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that in no event shall
the obligation of any indemnifying party to contribute under this Section 10
exceed the amount that such indemnifying party would have been obligated to pay
by way of indemnification if the indemnification provided for under Sections 5
or 6 hereof had been available under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 10 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No indemnified party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentation.
11. No Other Obligation to Register. Except as otherwise expressly
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provided in this Agreement, the Company shall have no obligation to the Holders
to register the Shares or the Shares under the Securities Act.
12. Amendments and Waivers. The provisions of this Agreement may not be
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amended, modified or supplemented without the prior written consent of each of
the Company and Holders holding in excess of 50% of the Shares that are subject
to this Agreement and the Registration Statement at that time.
13. Notices. Except as set forth below, all notices and other
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communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company at the following
addresses and to the Holder at the address set forth on his or her signature
page to this Agreement (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to Section 2(b) or
Section 6, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
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If to the Company: Wyndham International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
In addition to the manner of notice permitted above, notices given pursuant to
Sections 1, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
14. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the successors and assigns of the Company. This
Agreement may not be assigned by any Holder and any attempted assignment hereof
by any Holder will be void and of no effect and shall terminate all obligations
of the Company hereunder with respect to such Holder.
15. Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware applicable to contracts made
and to be performed wholly within said State.
17. Severability. In the event that any one or more of the provisions
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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 provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
18. Entire Agreement. This Agreement is intended by the parties as a
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final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
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herein, with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
WYNDHAM INTERNATIONAL, INC.
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Name:
Title:
HOLDER
*
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See Schedule A for names of Holders
* By:
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Attorney-in-Fact
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Schedule A
Name and Address of Holder Number of Shares
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