MASTER AMENDMENT AND OPTION AGREEMENT
Exhibit 10.1
MASTER AMENDMENT AND OPTION AGREEMENT
THIS MASTER AMENDMENT AND OPTION AGREEMENT (this “Agreement”), dated as of March 13, 2018, is between Hilton Grand Vacations Inc., a Delaware corporation (the “Company”), HNA Tourism Group Co., Ltd., a People’s Republic of China (“PRC”) company (“HNA”), and HNA HLT Holdco I LLC, a Delaware limited liability company (the “Selling Stockholder”).
RECITALS
A. HNA, through the Selling Stockholder (its indirect subsidiary), purchased 24,750,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), on March 15, 2017 from affiliates of The Blackstone Group L.P.
B. In anticipation of such purchase, HNA and the Company entered into (i) a Stockholders Agreement, dated as of October 24, 2016, among, HNA, HNA Group Co., Ltd., a PRC company (“HNA Group”), and the Company (the “Stockholders Agreement”), pursuant to which, prior to March 15, 2019 (the “Expiration Date”), HNA and certain affiliates are prohibited from transferring any shares of the Common Stock, except for Permitted Transfers (as defined therein), and (ii) a Registration Rights Agreement, dated as of October 24, 2016 (the “Registration Rights Agreement”), pursuant to which, beginning on the Expiration Date, HNA and certain affiliates have “demand” and “piggyback” registration rights.
C. HNA has communicated to the Company its interest in selling all of its shares prior to the Expiration Date and requested that the Company take such actions as are necessary to permit HNA and the Selling Stockholder to effect such sale pursuant to an underwritten public offering.
D. The disinterested members of the Board of Directors of the Company have considered and approved the proposed sale as a Permitted Transfer pursuant to Section 4.1(b)(i) of the Stockholders Agreement.
E. In connection with the foregoing, the Company and HNA have agreed to make several changes to the existing terms of the Registration Rights Agreement and the Stockholders Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
AMENDMENTS TO REGISTRATION RIGHTS AGREEMENT
SECTION 1.1 Acceleration of HNA Demand Rights. Effective immediately upon the occurrence of the Resignation Condition (as defined herein), Article II, Section 2.2(a) (General) of the Registration Rights Agreement is hereby amended by deleting “the second (2nd)
anniversary of the Effective Date (or earlier if the Company agrees to waive the two-year transfer registration under the Stockholders Agreement)” and replacing it with “March 13, 2018.” The “Resignation Condition” shall mean the delivery by ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ to the Company of his resignation from the Company’s Board of Directors (which expressly provides that it shall be effective only upon the closing of the first underwritten public secondary offering of the Common Stock by HNA (the “First Public Offering”).
SECTION 1.2 HNA Demand Rights Must Utilize Existing Shelf if Available; Applicability of Stockholders Agreement.
(a) Article II, Section 2.2(a) (General) of the Registration Rights Agreement is hereby amended by inserting as the final sentence of paragraph (y) the following: “Notwithstanding the foregoing, if the Company has an effective shelf registration statement that would permit the offer and sale of Registrable Securities, the Company shall not be obligated to file a registration statement relating to any registration request. In such case, HNA shall have the right to request a “takedown” of Registrable Securities off of such effective shelf registration statement.”
(b) Article II, Section 2.2(b) (Form) of the Registration Rights Agreement is hereby deleted and replaced as follows: “If the Company does not have an effective shelf registration statement that would permit the offer and sale of Registrable Securities, upon the written request of a Demand Party requesting that the Company effect the registration of Registrable Securities pursuant to this Section 2.2, the Company shall file a registration statement on Form S-3 (or any successor rule or form thereto) that would permit (or would permit upon the filing of a prospectus supplement) the offer and sale of Registrable Securities, or, if the Company is not then eligible to use such form for such offer and sale, such other form as is reasonably requested by the Demand Party.”
(c) Each shelf registration or “takedown” of Registrable Securities shall be subject to Section 4.1(c) of the Stockholders Agreement, without regard to whether such shelf registration or “takedown” is a Permitted Transfer (as defined in the Stockholders Agreement).
SECTION 1.3 Lockup Amended to be 90 Days and Applies to Requests Both to File a Registration Statement and to Facilitate a Shelf “Takedown” Offering. Article II, Section 2.2(a) (General) of the Registration Rights Agreement is hereby amended by inserting, after the first reference to “this Section 2.2(a)”, the following: “or facilitate a “takedown” of the Demand Party’s Registrable Securities off of an effective shelf registration statement”. Article II, Section 2.2(a)(x) is hereby amended by deleting each reference to “one hundred eighty (180) days” and replacing each with “ninety (90) days.” Article II, Section 2.2(a)(x) is hereby further amended by deleting the phrase “(or such lesser period as the managing underwriters in an underwritten offering may permit)”. Article II, Section 2.2(a)(x) is hereby further amended by inserting, after the reference to “in Section 2.1”, the following: “or after the closing date of any “takedown” of the Demand Party’s Registrable Securities off of an effective shelf registration statement”.
SECTION 1.4 HNA Pays Registration Expenses. Article II, Section 2.2(c) (Expenses) of the Registration Rights Agreement is hereby amended by deleting “The Company” and replacing it with “The Demand Party” and by adding to the end of the Section the following sentence: “Such expenses shall be payable at the closing of the relevant offering (with any additional expenses being payable at such time or times designated by the Company).” The definition of “Registration Expenses” is hereby amended by inserting at the end of clause (e) thereof “, and including any other reasonable and documented fees and disbursements of legal counsels to the Company and the Company’s independent registered public accounting firm, in each case for services rendered in connection with the transactions contemplated by this Agreement, the negotiation of the Master Amendment and Option Agreement, dated on or about March 13, 2018, between the Company, HNA and HNA HLT Holdco I LLC (the “MAOA”), and the transactions contemplated by the MAOA (including services rendered in connection with the negotiation or exercise of the Option (as defined therein)).” The parties agree that the Registration Expenses for the First Public Offering shall be equal to $4.857 million. If the Company elects to purchase any Option Shares (as defined below), the Registration Expenses shall be deducted and withheld from the Repurchase Price payable by the Company to HNA at the Option Closing, and if the Company does not elect to purchase any Option Shares, the Registration Expenses shall be payable directly to the Company from the proceeds of the First Public Offering otherwise payable to HNA.
SECTION 1.5 Company Determines Plan of Distribution; HNA Determines Pricing; HNA and Company Jointly Determine Underwriters. Article II, Section 2.2(d) (Plan of Distribution, Underwriters and Counsel) of the Registration Rights Agreement is hereby deleted and replaced as follows: “If a request for registration is made pursuant to this Section 2.2, the Company shall have the right to determine the plan of distribution (which, for the avoidance of doubt, shall include the designation of the specific investors to which the Registrable Securities shall be sold). HNA shall determine whether or not the Registrable Securities will be sold at the pricing of the offering (and HNA’s decision to sell the Registrable Securities, as evidenced by the execution of the applicable underwriting agreement, shall constitute HNA’s and the applicable Holder’s full and final acceptance of the plan of distribution determined by the Company). In respect of the first underwritten offering (the “First Public Offering”) with respect to which the registration or “takedown” request is delivered prior to March 15, 2019: (i) there will be two (2) active bookrunners, one (1) to be selected by the Company and one (1) to be selected by HNA; (ii) the Company will select the “lead left” bookrunner (and such bookrunning manager shall lead the offering with all customary roles and responsibilities traditionally assigned to the “lead left” bookrunning manager and act as the stabilization agent); (iii) HNA shall have the right to select the “lead right” bookrunner, which shall have an allocation equal to the lead left bookrunner and be responsible for “billing and delivery”); (iv) there shall be no more than five (5) total passive bookrunners and/or co-managers, with the Company having the right to select up to two such passive bookrunners and/or co-managers and HNA having the right to select up to three such passive bookrunners and/or co-managers; and (v) the Company and HNA shall jointly determine the economics of each offering or “takedown” (which shall have been agreed upon prior to the launch of the First Public Offering). With respect to any underwritten offering subsequent to the First Public Offering for which a registration or “takedown” request is delivered before March 15, 2019, and at a time when HNA holds more than 10% of the outstanding common stock of the Company, (i) the Company and HNA shall have the right to select the investment banks to act as (w) active bookrunning managers, (x) passive bookrunning managers, (y) co-managers and (z) any
other members of the underwriting syndicate; (ii) the selection process for the foregoing clauses (w), (x), (y) and (z) shall occur on an alternating basis (with the Company selecting first in each case and HNA then selecting a second bank at the same level); (iii) as a result of the Company’s first selection, the “lead left” bookrunning manager shall be selected by the Company (and such bookrunning manager shall (x) lead the offering with all customary roles and responsibilities traditionally assigned to the “lead left” bookrunning manager and (y) serve as the stabilization agent); and (iv) the syndicate arrangements, including the underwriting spread and division of economics among the underwriters, shall be mutually agreed and based upon the market practice for similar transactions, provided, that the Company and HNA shall each have the right to designate the economics to be allocated to the banks appointed by them, with each party being able to so designate economics proportionate to the number of banks they have appointed in the offering. The Demand Party shall have the right to select counsel for the selling Holders.”
SECTION 1.6 Tax Opinion and Audit Cooperation Condition and Covenant. Article II, Section 2.2 of the Registration Rights Agreement is hereby amended by inserting after section 2.2(h) the following: “(i) Certain Conditions. To the extent the registration or “takedown” from an effective registration statement involves an underwritten offering, the closing of such underwritten offering shall be conditioned on the satisfaction of the Tax Opinion and Audit Cooperation Condition (with such condition being expressly provided for the benefit of the Company in the underwriting agreement for such offering). The “Tax Opinion and Audit Cooperation Condition” shall mean that (i) HNA and any Holder acting as a “selling stockholder” in such offering shall have executed and delivered to the law firm engaged to render certain tax opinions related to any such underwritten offering and related transactions (“Tax Counsel”) an officer’s certificate, in form and substance acceptable to Tax Counsel (the “HNA Rep Letter”), containing representations necessary for Tax Counsel to deliver to Hilton Worldwide Holdings Inc. (“Hilton”) a tax opinion acceptable to Hilton that will allow the closing of such underwritten offering or other transaction (an “Unqualified Opinion”), (ii) HNA and any Holder acting as a “selling stockholder” in such offering shall have executed and delivered to Hilton a letter agreement, in form and substance acceptable to Hilton (the “Letter Agreement”), related to the correctness of the representations in the HNA Rep Letter and cooperation by HNA and such Holder with any audit, examination, proposed adjustment or inquiry or other proceeding concerning the tax treatment of the Distribution (as defined in the Tax Matters Agreement, dated as of January 2, 2017, by and among Hilton, the Company, Park Hotels & Resorts Inc. and Hilton Domestic Operating Company Inc. (the “Tax Matters Agreement”)) and (iii) the Company shall have caused Tax Counsel to provide an Unqualified Opinion to Hilton that Hilton has acknowledged in writing is in form and substance reasonably acceptable to Hilton. Prior to the pricing of any underwritten public offering, HNA and such Holder shall (i) cause to be executed and delivered into escrow the HNA Rep Letter and the Letter Agreement, (ii) instruct the HNA designees (as defined in the MAOA) to make such changes (and only such changes) to such HNA Rep Letter and Letter Agreement delivered into escrow, prior to the closing of the offering, as are required to incorporate pricing- and closing-related information related to the offering required for Tax Counsel to deliver an Unqualified Opinion to Hilton and (iii) provide for the automatic release of such HNA Rep Letter and Letter Agreement from escrow to Tax Counsel and Hilton, respectively, on the closing date.”
SECTION 1.7 Certain Amendments to Expire on March 15, 2019. The amendments to the Registration Rights Agreement set forth in Sections 1.4, 1.5 and 1.6 above shall only apply with respect to any registration or “takedown” request delivered prior to the Expiration Date. With respect to any registration or “takedown” request delivered on or after the Expiration Date, the amendments set forth in Sections 1.4, 1.5 and 1.6 above shall not apply (and the original provisions of the Registration Rights Agreement shall instead be in effect).
SECTION 1.8 Deemed Request for Registration. HNA and the Selling Stockholder shall be deemed to have delivered on the date hereof the written request required under Section 2.2(a) of the Registration Rights Agreement to effect an underwritten public secondary offering for the offer and sale of up to 24,750,000 shares of the Common Stock (inclusive of both the firm shares and optional shares for such proposed offering), with such request becoming effective upon the occurrence of the Resignation Condition. As of the date of this Agreement, such offering is contemplated by the parties to be the First Public Offering (as defined in Section 2.2(d) of the Registration Rights Agreement, as amended by Section 1.5 hereof, and subject to the last sentence of Section 3.1 hereof).
SECTION 1.9 Termination. Article V (Other ) is here by amended by adding the following: “SECTION 5.14. Termination. This Agreement shall automatically terminate on the date that the HNA Parties, in the aggregate, cease to Beneficially Own any of the shares of common stock of the Company acquired from the Blackstone Group, L.P.”
ARTICLE II
AMENDMENTS TO STOCKHOLDERS AGREEMENT
SECTION 2.1 Elimination of HNA Board Designation and Related Rights. Effective upon the closing of the First Public Offering, Article II (Corporate Governance Matters) of the Stockholders Agreement will be deleted in its entirety.
SECTION 2.2 Adjustment of Voting Discretion such that HNA Must Vote Shares in Favor of Board and Governance Committee Candidates. Effective upon the closing of the First Public Offering, Section 3.1 (Voting in an Uncontested Election) of the Stockholders Agreement is hereby amended (x) by deleting the phrase “either (i)”, (y) by deleting the phrase “or (ii) in the same proportion…Corporate Governance Committee”, and (z) by deleting the words “subclause (i) or (ii) of” from the parenthetical provision at the end of Section 3.1. Effective upon the closing of the First Public Offering, Section 3.2 (Voting in a Contested Election) of the Stockholders Agreement is hereby amended by deleting the phrase “in the same proportion as …authority with respect to,” and inserting the word “for” in lieu thereof.
SECTION 2.3 Adjustment of Discretion such that HNA Must Vote Shares in Excess of 5% in Same Proportion as Non-HNA Shareholders on Matters Other than Election of Directors. Effective upon the closing of the First Public Offering the definition of “Voting Percentage Limit” in Article I, Section 1.1 (Defined Terms) of the Stockholders Agreement is hereby amended to delete each reference to “fifteen percent (15%)” and replace it with “five percent (5%)”.
SECTION 2.4 Waiver of Restricted Period; Transfer Limitations. Upon the satisfaction of the Resignation Condition and until the end of the Restricted Period, any underwritten public offering, block trade or other sale into the public markets of the shares of Common Stock shall constitute a “Permitted Transfer” within the meaning of Section 4.1(b). With respect to the First Public Offering, the underwriters shall present to the Company the identity of any potential purchaser who has indicated an interest in purchasing a number of shares that would result in such potential purchaser owning more than 4.9% of the total outstanding shares of Common Stock, and the Company shall be entitled, in its sole discretion, to waive the provisions of Section 4.1(c) with respect to any particular potential purchaser.
SECTION 2.5 Elimination of HNA Right of First Refusal. Effective upon the closing of the First Public Offering, Section 4.2 (Right of First Refusal) of the Stockholders Agreement is hereby deleted.
SECTION 2.6 Modification of Standstill. Effective upon the closing of the First Public Offering, Section 4.3 (Standstill) of the Stockholders Agreement is hereby amended (x) by deleting from subsection (a)(i)(C) the phrase “Section 4.2 or Section 4.3(c)”, (y) by deleting from subsection (b)(ii) the phrase “the Company, the Board and/or the Company’s stockholders … announced basis,” and inserting in its place the phrase “the Company or the Board a non-public, confidential alternative Acquisition Proposal so long as such HNA Party does not know, and would not be reasonably be expected to know, that such actions would be reasonably likely to require HNA, the Company or any other Person to make a public announcement regarding such Acquisition Proposal,” and (z) by deleting subsection 4.3(c) in its entirety.
SECTION 2.7 Survival of Standstill. Effective upon the closing of the First Public Offering, Section 6.1 (Termination) of the Stockholders Agreement is hereby amended by adding to the end of the Section the following proviso: “; provided, further, that Section 4.3 (as amended by the MAOA) shall survive the termination of this Agreement until the expiration of the Restricted Period.”
SECTION 2.8 Resignation of HNA Designee. HNA shall use its best efforts to cause ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ to satisfy the Resignation Condition.
ARTICLE III
OPTION FOR THE COMPANY TO REPURCHASE COMMON STOCK HELD BY HNA
SECTION 3.1 Grant of Option for the Company to Repurchase Common Stock Held by HNA. HNA, on behalf of itself and any other Holders (as defined in the Registration Rights Agreement), and the Selling Stockholder, each hereby grants to the Company an option (the “Option”) to repurchase from HNA, the Selling Stockholder or any other Holders up to an aggregate of 4,340,000 shares (the “Option Shares”) of the Common Stock, held by HNA, the Selling Stockholder or any other Holders on the date hereof (as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations and the like after the date of this Agreement) at a price per share (the “Repurchase Price”) equal to (i) the public offering price per share in the First Public Offering (the “Public Offering Price”), minus (ii) the underwriting discount and commissions per share in the First Public Offering. The Company may exercise the Option in
whole or in part at any time prior to the time of the pricing of the First Public Offering by email notice (the “Option Notice”) to HNA, which Option Notice shall set forth the number of Option Shares as to which the Company is exercising the Option. The final number of Option Shares as to which the Option has been exercised, as set forth in the Option Notice, is referred to herein as the “Exercised Option Shares”. The foregoing arrangements shall be documented in a series of email notices as follows (and in the following order): (x) HNA advises of the intended pricing of the offering (including the Public Offering Price and underwriting discounts and commissions per share) and requests the Option Notice and (y) the Company delivers an Option Notice or declines to do so (and, for avoidance of doubt, the pricing shall not occur until the Company has provided its Option Notice or has declined to do so). If the First Public Offering is abandoned, materially downsized or otherwise materially changes, then at the election of the Company the term “First Public Offering” (and therefore the Option itself) shall apply to the next underwritten public secondary offering of the Common Stock held by HNA or any other Holders.
SECTION 3.2 Closing. Delivery of and payment for the Exercised Option Shares shall be made concurrent with the closing of the First Public Offering (the “Option Closing”). Delivery of the Exercised Option Shares shall be made to the Company free and clear of any liens or other encumbrances against payment by the Company by wire transfer payable in same-day funds to the accounts specified by HNA, the Selling Stockholder or the other Holders, as applicable. The Parties shall cooperate to deliver all documents as may be reasonably required to effect such transfer of the purchased Exercised Option Shares to the Company, including stock powers, stock transfer instructions and all other transfer documents. Notwithstanding anything to the contrary contained herein, the Company’s obligation to consummate the Option Closing shall be conditioned on (A) the satisfaction of the Tax Opinion and Audit Cooperation Condition and (B) the simultaneous closing under the underwriting agreement for the First Public Offering. If either condition is not satisfied, the Company shall have the right to do one or both of the following (in either case by email notice to HNA): (x) delay the Option Closing for a period of up to 21 days; and (y) terminate the exercise of the Option.
SECTION 3.3 Assignment. Neither the Company nor HNA or any other Holder shall assign its rights or obligations under this Article III without the prior written consent of the Company and HNA; provided, however, that HNA or any other Holder may assign its rights and obligations under this Article III of this Agreement in whole or in part to any HNA Entity (as defined in the Registration Rights Agreement) to which Registrable Securities are transferred pursuant to, and subject to the conditions set forth in, the Stockholders Agreement, provided, such assignee executes and delivers to the Company a counterpart whereby it agrees to be bound by the terms of Article III of this Agreement. Except as otherwise provided herein, this Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns.
SECTION 3.4 Other. The Company, the Selling Stockholder and HNA agree that the agreements, covenants, representations, warranties and other information set forth in Section 5.1 (Notices), Section 5.3 (Amendments; Waiver), Section 5.4 (Third Parties), Section 5.8 (Specific Performance) of the Registration Rights Agreement apply with respect to this Article III. HNA shall cause any other Holder to comply with the terms of this Article III. Notwithstanding the foregoing, the email notices described herein shall take place between three persons designated by the Company in an email communication to HNA on or before the date hereof (the “Company
designees”) and three persons designated by HNA in an email communication to the Company on or prior to the date hereof (the “HNA designees”). Each email notice to be sent to the Company or HNA shall be sent to all three Company designees or all three HNA designees, as applicable. HNA will make and receive all email notices on behalf of itself, the Selling Stockholder or any other Holder as applicable.
SECTION 3.5 Entire Agreement. This Article III sets forth the entire understanding of the parties hereto with respect to the subject matter of this Article III. There are no agreements, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein. This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
ARTICLE IV
OTHER
SECTION 4.1 Cooperation.
(a) HNA shall reasonably cooperate (and cause its affiliates to reasonably cooperate) in obtaining any tax opinions required to be delivered in connection with the Tax Matters Agreement, dated January 2, 2017, among the Company, Hilton Worldwide Holdings Inc., Hilton Grand Vacations Inc., and Hilton Domestic Operating Company Inc., including by (i) making reasonable representations required in connection with any such opinion, (ii) maintaining and making available to the Company all records necessary in connection with such opinions and (iii) making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. In addition, HNA shall reasonably cooperate (and cause its affiliates to reasonably cooperate) in connection with any future tax audit of the Company, including making records, other information and employees available on a mutually convenient basis.
(b) The parties shall agree to explore potential areas of mutually beneficial cooperation to address certain marketing and business development matters as set forth on Exhibit A hereto.
SECTION 4.2 Representations and Warranties of the Company. The Company hereby represents and warrants to HNA as follows: (i) the Company is a corporation, duly incorporated, validly existing and in good standing under the laws of the State of Delaware, (ii) the Company has all requisite power and authority to execute and deliver this Agreement and to perform its obligations under the Agreement; (iii) the execution and delivery by the Company of this Agreement and the performance of the obligations of the Company under this Agreement do not and will not conflict with or violate any provision of, or require the consent or approval of any Person (as defined in the Registration Rights Agreement) (except for any such consents or approvals which have been obtained) under, (x) applicable Law (as defined in the Registration Rights Agreement), (y) the organizational documents of the Company or (z) any contract or agreement to which the Company is a party; (iv) the execution and delivery by the Company of this Agreement and the performance of the obligations of the Company under this Agreement have been duly authorized by all necessary corporate action on the part of the Company, and (v) this Agreement has been duly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by HNA, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.
SECTION 4.3 Representations and Warranties of HNA and the Selling Stockholder. HNA and the Selling Stockholder hereby represent and warrant to the Company as follows:
(a) (i) HNA is duly organized and validly existing under the laws of the PRC and the Selling Stockholder is duly organized and validly existing under the laws of the State of Delaware, (ii) HNA and the Selling Stockholder each have all requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement; (iii) the execution and delivery by each of HNA and the Selling Stockholder of this Agreement and the performance by each of HNA and the Selling Stockholder of its obligations under this Agreement do not and will not conflict with or violate any provision of, or require the consent or approval of any Person (except for any such consents or approvals which have been obtained) under, (x) applicable Law, (y) its organizational documents or (z) any contract or agreement to which it is a party; (iv) the execution and delivery by each of HNA and the Selling Stockholder of this Agreement and the performance by each of HNA and the Selling Stockholder of its obligations under this Agreement have been duly authorized by all necessary corporate or other analogous action on its part, (v) this Agreement has been duly executed and delivered by each of HNA and the Selling Stockholder and, assuming the due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of each of HNA and the Selling Stockholder, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity; (vi) the Selling Stockholder (or, if applicable, HNA or any other Holder) shall have good and marketable title to the Exercised Option Shares delivered to the Company upon closing of the Option, free and clear of any and all liens, security interests, mortgages, rights of first refusal, agreements, restrictions, levies, claims, pledges, equities, options, contracts assessments, conditional sale agreements, charges and other encumbrances or interests of any nature whatsoever, excluding any restrictions created by the organizational documents of the Company or applicable securities laws (none of which restrict the ability of the Selling Stockholder (or, if applicable, HNA or any other Holder) to complete the transactions contemplated by this Agreement) and (vii) the Selling Stockholder is the current owner of all of the 24,750,000 shares of the Common Stock owned directly or indirectly by HNA.
(b) (i) the Selling Stockholder has been, at all time since March 15, 2017, the sole holder of all 24,750,000 shares of the Common Stock; (ii) none of such shares was acquired with a view towards a distribution; (iii) the Selling Stockholder is acting for its own behalf and is not acting as a statutory underwriter (as such term is defined in the Securities Act of 1933, as amended); and (iv) none of HNA, the Selling Stockholder, nor any of their respective affiliates received any fees or commissions from the Company in connection with the Selling Stockholder’s acquisition of the shares; and (v) the Company did not receive any cash proceeds in connection with the Selling Stockholder’s acquisition of the shares.
SECTION 4.4 Effect of Agreement; Defined Terms. Except as expressly set forth herein, (i) Article I of this Agreement shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Registration Rights Agreement and (ii) Article II of this Agreement shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Stockholders Agreement. Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Registration Rights Agreement or Stockholders Agreement, respectively.
SECTION 4.5 Governing Law/Jurisdiction/JURY TRIAL WAIVER. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. The Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) shall have exclusive jurisdiction over the parties with respect to any dispute or controversy between them arising under or in connection with this agreement and, by execution and delivery of this agreement, each of the parties to this Agreement submits to the exclusive jurisdiction of those courts, including but not limited to the in personam and subject matter jurisdiction of those courts, waives any objections to such jurisdiction on the grounds of venue or forum non conveniens, the absence of in personam or subject matter jurisdiction and any similar grounds, consents to service of process by mail (in accordance with the notice provisions of this Agreement) or any other manner permitted by Law, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT.
SECTION 4.6 Severability. If 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 provision, paragraph, word, clause, phrase or sentence in every other respect and of the 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.
SECTION 4.7 Additional Matters. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument. PDF scan signatures shall be accepted as valid execution of this Agreement. The headings, subheadings and captions contained herein are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
SECTION 4.8 Selling Stockholder. The Selling Stockholder hereby executes this Agreement as a Holder (as defined in the Registration Rights Agreement). Any Holder that is a transferee of Registrable Securities from the Selling Stockholder, and any Holder named as a “selling stockholder” in a prospectus supplement filed by the Company in connection with an underwritten offering requested by HNA or any Holder pursuant to the Registration Rights Agreement, as amended by this Agreement, shall execute and deliver to the Company a counterpart to this Agreement whereby it agrees to be bound by the terms of this Agreement as a Holder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
| HILTON GRAND VACATIONS INC. | ||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇. ▇▇▇▇ | |
| Title: | President and Chief Executive Officer | |
| HNA TOURISM GROUP CO., LTD. | ||
| By: | /s/ Tian Jianjun | |
| Name: | Tian Jianjun | |
| Title: | Chief Financial Officer | |
| HNA HLT HOLDCO I LLC | ||
| By: | /s/ ▇▇▇▇ ▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇ | |
| Title: | Manager | |
EXHIBIT A
HGV and HNA will agree to explore potential areas of mutually beneficial cooperation regarding certain co-branding and customer generation, including without limitation:
| • | generation of customer leads for HGV in respect of marketing efforts in China, including (i) availability of HGV vacation packages to HNA customers and Hainan Airlines frequent flyer program and participants, (ii) customer call transfer arrangements with Hainan Airlines and HNA hotels to transfer to HGV’s call centers related to HGV vacation package program, (iii) joint sweepstakes and other promotional opportunities in China, and (iv) utilization of HNA’s relationships with travel agencies and wholesalers to introduce customers or sell HGV packages; |
| • | provision of HGV club-related services by HNA with respect to HGV’s operations in China; and |
| • | discussion and vetting of potential development of opportunities for timeshare properties in Asia. |