EXHIBIT 5
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REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
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Dated as of February 18, 1999
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TABLE OF CONTENTS
Page
Section 1. 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
Section 6. Miscellaneous....................................................23
(a) Inconsistent Agreements.....................................23
(b) Amendments and Waivers......................................23
(c) Notices.....................................................23
(d) Successors and Assigns......................................24
(e) Recapitalizations, Exchanges, etc., Affecting Registrable
Securities..................................................25
(f) Counterparts................................................25
(g) Descriptive Headings, Etc...................................25
(h) Severability................................................25
(i) Governing Law...............................................26
(j) Specific Performance........................................26
(k) Entire Agreement............................................26
(i)
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;
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 acknowl edged, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Definitions.
(a) As used in this Agreement, the following terms shall
have the following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promul gated 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.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
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"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 state ment 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 consecu tive 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.
"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
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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 prepara tion 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 Ex penses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement of
Wyndham which covers any Registrable Securities and all amendments and supple
ments 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.
"Required Registration Statement" shall mean a Registration State
ment pursuant to Section 2(a)(i).
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"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 prepara tion 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.
(b) 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.
(a) Required Registration.
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(i) 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 State ment 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 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
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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.
(ii) 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),
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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.
(iii) 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 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
8
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 Com mon 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
compli ance 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 connec tion 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 distribution thereof), Wyndham will use all reasonable efforts to effect
the registra tion under the Securities Act of all Registrable Securities which
Wyndham has been
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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 distribu tion) of the Registrable Securities
so requested to be registered, including, if neces sary, by filing with the
SEC a post-effective amendment or a supplement to the Incidental Registration
Statement or the related Prospectus or any document incorpo rated 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 Under writer 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 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
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Wyndham will include in such registration: first, all the securities entitled
to be sold pursuant to such Registration Statement without reference to the
incidental registra tion rights of any holder (including the Holders), and
second, the amount of other securities (including Registrable Securities)
requested to be included in such registra tion 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, injunc
tion 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 be deemed not to have become effective and the related
registration will not be deemed to have been effected.
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(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 such Registrable Securities by the Holders in accordance with
their intended method or methods of distribution, and Wyndham shall:
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(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 Under writer, 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;
(c) 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 Prospectus, including each preliminary
Prospectus, by each Holder of Registrable Securities and each Underwriter of
an Underwritten Offering of Registrable Securi ties, if any, in connection
with the offering and sale of the Registrable Securities
13
covered by the Prospectus or the preliminary Prospectus (the Holders hereby
agreeing not to make a broad public dissemination of a form of preliminary
Prospec tus 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;
pro vided, however, that Wyndham shall not be obligated to qualify as a
foreign corpora tion 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 Securi ties 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 material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein not misleading;
14
(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 docu ments 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 denomina tions (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 therein, in the light of
the circumstances under which they were made, not misleading;
15
(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 reason ably 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 cov ered 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
transac tion, enter into a securities sales agreement with the
Holders and such repre sentative 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 stance and scope and shall contain customary
representations, warranties and covenants; and
16
(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 connec tion with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any Registra
tion 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 Securi ties, 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;
(ii) within a reasonable time prior to the filing of any document
which is to be incorporated by reference into a Registration Statement or a
Prospec tus, 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 of Wyndham as shall be reasonably
requested by such counsel available for discus sion of such document;
17
(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 Registra tion Statement, or if so requested by the Underwriter or
Underwriters of an Under written 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 Under
writer 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 Major ity 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
registra tion 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 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
18
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 Securi ties Act or Section 20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims,
damages, judg ments 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 regis tered 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, judg ments 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 defending against any litigation,
investigation or proceeding by any govern mental 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
19
untrue statement or omission, or any such alleged untrue statement or
omis sion, 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 State ment (or any amendment thereto) or
any Prospectus (or any amendment or supple ment 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 employ ees (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 indem nity 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
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
20
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 repre
sented 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
pr
oceeding.
(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 indemni fied party, shall contribute to the amount
paid or payable by such indemnified party 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
21
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 (includ ing, 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 state ment 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 distribu tions 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 any, who controls Wyndham
within the meaning of Section 15 of the Securities Act, shall have the same
rights to contribution as Wyndham.
22
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
registra tion 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 securi ties 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
supple mented, 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 shall prohibit any amendment,
modification, supplement, waiver or consent the effect
23
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 (▇▇▇) ▇▇▇-▇▇▇▇, 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 Holders, as
defined in the preamble of this Agreement, and thus entitled to the rights
24
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 provi
sions, 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
25
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 GOV ERNED 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.
* * *
26
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:_________________________________________
Name:
Title:
27
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 ▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ By:
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 ▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ By:_________________________________________
Attention: Name:
Telecopier Number: Title:
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▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
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Attention: By__________________________________________
Telecopier Number: Name:
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▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
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Attention: By:_________________________________________
Telecopier Number: Name:
(▇▇▇) ▇▇▇-▇▇▇▇ Title:
▇▇▇▇▇▇ ▇. ▇▇▇ CHARITABLE
INVESTMENT L.P.
Address: By: THL Equity Advisors IV, LLC
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Attention: By:_________________________________________
Telecopier Number: Name:
(▇▇▇) ▇▇▇-▇▇▇▇ Title:
THL-CCI LIMITED PARTNERSHIP
Address: By: THL Equity Advisors IV, LLC
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Attention: By:_________________________________________
Telecopier Number: Name:
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BEACON CAPITAL PARTNERS, L.P.
Address: By: Beacon Capital Partners, Inc.,
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ its General Partner
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Attention: By:_________________________________________
Telecopier Number: Name:
(▇▇▇) ▇▇▇-▇▇▇▇ Title:
STRATEGIC REAL ESTATE
INVESTMENTS I, L.L.C.
Address:
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:_________________________________________
Attention: Name:
Telecopier Number: Title:
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