Conduct of Business by Starwood. Except as set forth in Section 4.1(a) of the Starwood Disclosure Letter, as otherwise expressly contemplated by this Agreement, as required by Applicable Law or as consented to by Marriott in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Initial Holdco Merger Effective Time, Starwood and Holdco shall, and shall cause their respective subsidiaries to, carry on their respective businesses in the ordinary course consistent with past practice and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact their current business organizations, preserve their assets and properties in good repair and condition, use commercially reasonable efforts to keep available the services of their current officers and other key employees and preserve their relationships with those persons having business dealings with them; provided that no action by Starwood, Holdco or any their respective subsidiaries with respect to matters specifically addressed by the following sentence shall be deemed to be a breach of this sentence unless such action would constitute a breach of the following sentence. Except as set forth in Section 4.1(a) of the Starwood Disclosure Letter, as otherwise expressly contemplated by this Agreement, as required by Applicable Law or as consented to by Marriott in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Initial Holdco Merger Effective Time, Starwood and Holdco shall not, and shall not permit any of their respective subsidiaries to: (i) (A) other than (I) any regular quarterly cash dividend made by Starwood in accordance with its existing dividend policy in an amount up to $0.375 per share of Starwood Common Stock for any such quarterly dividend and (II) dividends and distributions by a direct or indirect wholly owned subsidiary of Starwood to its direct or indirect parent, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (C) purchase, redeem or otherwise acquire any shares of capital stock of Starwood, Holdco or any of their respective subsidiaries or any other securities thereof or any rights, warrants, options or stock appreciation rights to acquire any such shares or other securities (other than the acquisition of shares from a holder of a Starwood Equity Award in satisfaction of withholding obligations or in payment of the exercise or reference price in accordance with the terms thereof as in effect on the date hereof or in connection with the forfeiture of any rights, options or stock appreciation rights granted under a Starwood Equity Plan); (ii) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (A) Starwood Equity Awards granted in the ordinary course of business consistent with past practice, (B) in connection with the settlement of equity compensation granted under the Starwood Benefit Plans as in effect on the date hereof and (C) as required by any Starwood Benefit Plan as in effect on the date hereof); (A) other than in the ordinary course of business consistent with past practice, amend, renew, terminate or waive in any material respect any Starwood Material Contract except for amendments or renewals without adverse changes, additions or deletions of terms, (B) enter into any new agreement or contract or other binding obligation of Starwood, Holdco or any of their respective subsidiaries containing any provision of the type described in clause (iii) of the definition of Starwood Material Contracts or (C) enter into or renew, or amend in any material respect, any material outsourcing agreement, contract or arrangement; (iv) except for transactions pursuant to definitive agreements in effect as of the date of this Agreement, (A) acquire any hotel or any real property, whether through purchase, lease or otherwise, (B) enter into any joint venture, joint development or analogous transaction, (C) merge with or enter into a consolidation with or otherwise acquire any interest in any person, or acquire a substantial portion of the assets or business of any person (or any division or line of business thereof), (D) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or any other reorganization, (E) otherwise acquire an interest in (including, through leases, subleases and licenses of real property) or invest to secure new management or franchise agreements with respect to (including, through key money, loans, guarantees and similar arrangements) any assets, or (F) enter into any new line of business, except (x) in the case of clauses (A), (B), (C) (but specifically excluding any merger or consolidation of Starwood, Holdco or Starwood Merger Sub with any other person under clause (C)) and (E), (1) transactions involving only direct or indirect wholly owned subsidiaries of Starwood (other than Holdco and Starwood Merger Sub), (2) guarantees permitted under Section 4.1(a)(vi) or (3) in one or more transactions with respect to which the aggregate key money does not exceed $150,000,000 and all other aggregate consideration (including loans and leases, and valuing leases for the purposes of this calculation at their net present value) does not exceed $100,000,000 and (y) in the case of clause (E), (1) acquisitions of supplies, materials, equipment and other tangible assets in the ordinary course of business consistent with past practice, (2) capital expenditures permitted to be made pursuant to clause (xi) of this Section 4.1(a), or (3) office leases in the ordinary course of business; (v) except for transactions pursuant to definitive agreements in effect as of the date of this Agreement, (A) transfer, sell, lease, sublease, license, sublicense or otherwise dispose of any assets or properties of Starwood, Holdco or any of their respective subsidiaries (other than immaterial assets or properties) or (B) mortgage or pledge any material assets or material properties of Starwood, Holdco or any of their respective subsidiaries, or subject any such assets or properties to any other Lien (except Permitted Liens), other than, in the case of both clause (A) and clause (B), (1) in the ordinary course of business consistent with past practice, (2) assets and properties associated with discontinued operations or (3) sales or other dispositions in one or more transactions with respect to which the aggregate consideration does not exceed $300,000,000; provided in the case of clauses (1), (2) and (3), that (v) with respect to any hotel properties or joint ventures, Starwood receives or retains a long-term management agreement or franchise agreement on market terms consistent with past practices, (w) Starwood receives an amount that equals or exceeds the fair market value of such assets or properties, (x) Starwood does not engage in a sale and leaseback transaction, (y) Starwood does not issue guarantees or assurances against future performance or loss with an aggregate maximum funding exposure in excess of $50,000,000 and (z) at least 85% of the value of the aggregate consideration (disregarding any renovation commitments made by the acquiror and any hotel management agreement entered into in connection with such transaction) received by Starwood for all such hotel properties and joint ventures in the aggregate is received in cash; (vi) create, incur or assume any indebtedness for borrowed money, or issue any debt securities or any right to acquire debt securities, assume, guarantee, endorse or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness of another person (including any hotel owner), enter into any agreement to maintain any financial statement condition of another person, enter into any arrangement having the economic effect of any of the foregoing, or enter into any other guarantees or assurances against future performance or loss, except (A) indebtedness incurred in the ordinary course of business and consistent with past practice under Starwood’s current borrowing agreements or any refinancing thereof; provided that any change of control repurchase rights of the holders of such refinanced indebtedness shall only become effective upon the occurrence of both a change of control of Starwood and a ratings agency downgrade of such indebtedness to below investment grade, (B) any inter-company indebtedness solely involving Starwood or its direct or indirect wholly owned subsidiaries (other than Holdco and Starwood Merger Sub), (C) as required by existing contracts entered into in the ordinary course of business, (D) indebtedness for borrowed money not to exceed $200,000,000 in aggregate principal amount outstanding at any time incurred by Starwood or any of its subsidiaries other than in accordance with clauses (A) through (C), (E) guarantees or assurances against future performance or loss with an aggregate maximum funding exposure not to exceed $50,000,000 (after taking into account any guarantees or assurances against future performance or loss entered into in connection with activities otherwise permitted pursuant to paragraph (iv) or (v) of this Section 4.1(a)) or (F) guarantees by Starwood of indebtedness of its subsidiaries (other than Holdco and Starwood Merger Sub), which indebtedness is incurred in compliance with this Section 4.1(a)(vi); (vii) waive, release, assign, settle or compromise any pending or threatened Action which (A) is material to the business of Starwood and its subsidiaries, taken as a whole, (B) otherwise involves the payment by Starwood of an amount in excess of $20,000,000 (excluding any amounts that may be paid under insurance policies), other than settlements or compromises of any pending or threatened Action reflected or reserved against in the balance sheet (or the notes thereto) of Starwood as of September 30, 2015 included in the Starwood Filed SEC Documents for an amount not materially in excess of the amount so reflected or reserved or (C) involves any admission of criminal wrongdoing; (viii) except as required by any Starwood Benefit Plan in effect on the date of this Agreement or as required by Applicable Laws, (A) increase any compensation or benefit to, or enter into or amend any employment, change-in-control or severance agreement with, any director, officer or other employee, other than, with respect to employees who are not directors or officers at the level of Senior Vice President or above, increases in compensation or benefits in the ordinary course of business consistent with past practice, (B) grant any bonuses, other than performance-based bonuses in the ordinary course of business consistent with past practice, to any director, officer or other employee, (C) enter into or adopt any new material Starwood Benefit Plan (including any stock option, stock benefit or stock purchase plan) or amend or modify, in a manner that would materially increase costs to Starwood, any existing Starwood Benefit Plan or accelerate the vesting of any compensation (including options, restricted stock, restricted stock units, warrants, other shares of capital stock or rights of any kind to acquire any shares of capital stock or equity-based awards) for the benefit of any director, officer or other employee, (D) grant to any director, officer or other employee any right to receive, or pay to any director, officer or other employee, any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than the payment of cash severance or the provision of continued welfare benefits in the ordinary course of business consistent with past practice) or (E) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to be provided to any director, officer or other employee; provided, however, that each of Starwood and Marriott shall designate one or more persons to serve as point people for purposes of efficiently and expeditiously discussing and considering requests for consent or waivers under this Section and any such additional requests therefor made by Starwood; (ix) change any of its financial or Tax accounting policies or procedures currently in effect, except (A) as required by GAAP, Regulation S-X of the Exchange Act, or a Governmental Entity or quasi-governmental authority (including the Financial Accounting Standards Board or any similar organization) or (B) as required by Applicable Law; (x) other than foreign exchange rate swaps with respect to intercompany debt in the ordinary course of business consistent with past practice, enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements; (xi) other than as necessary to maintain value and functionality of Starwood’s facilities (whether as a result of a casualty or otherwise and whether or not covered by insurance), make aggregate capital expenditures that are greater than 120% of the aggregate amount of Starwood’s budgeted capital expenditures set forth on Section 4.1(a)(xi) of the Starwood Disclosure Letter; (xii) amend the Starwood Charter or the Starwood By-laws or the organizational documents of Holdco or Starwood Merger Sub (other than amendments to the organizational documents of Holdco or Starwood Merger Sub as may be necessary to effect the transactions contemplated by this Agreement) or adopt any stockholder rights plan, “poison pill” antitakeover plan or similar device that would apply to the Combination Transactions; (xiii) enter into any transaction, contract, agreement, arrangement or understanding between Starwood or any of its subsidiaries, on the one hand, and any of Starwood’s affiliates (other than wholly owned subsidiaries of Starwood), on the other hand, that would be required to be disclosed by Starwood under Item 404 of Regulation S-K under the Securities Act; (xiv) enter into, or amend or modify in any material respect, any collective bargaining agreement, card check neutrality/labor peace agreement or accretion provisions with any labor union; or (xv) authorize, or commit or agree to take, any of the foregoing actions. Notwithstanding the foregoing, nothing in this Section 4.1(a) shall be deemed to restrict, nor shall any of the provisions of this Section 4.1(a) be considered breached by, any action taken by Starwood (including any Tax elections made) or any of its subsidiaries that is required or contemplated by the Venus Documents or is necessary to effectuate the Venus-ILG Transaction or the Spin-Off or any of the transactions contemplated by the definitive documentation related thereto (including the Venus Documents). For the avoidance of doubt, none of the restrictions set forth in clauses (i) through (xiv) of this Section 4.1(a) shall apply to any action by Starwood or any of its subsidiaries that relate solely to the assets, capital stock, business or operations of Venus or do not relate to, or would not reasonably be expected to adversely impact, the assets, capital stock, business or operations of any of the other businesses of Starwood and its subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc), Agreement and Plan of Merger (Marriott International Inc /Md/)
Conduct of Business by Starwood. Except as set forth in Section 4.1(a) 4.2 of the Starwood Disclosure Letter, and as otherwise expressly contemplated by this Agreement, as required by Applicable Law or as consented Agreement and the Ancillary Agreements to by Marriott in writing (such consent not to be unreasonably withheld, conditioned or delayed)which Starwood is a party, during the period from the date of this Agreement to the Initial Holdco Merger earlier of (i) the termination of this Agreement and (ii) the Effective Time, Starwood and Holdco shall, and shall cause their respective subsidiaries the Starwood Subsidiaries to, carry on its and their respective businesses in the usual, regular and ordinary course consistent with past practice in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact their in all material respects its current business organizationsorganization, preserve their assets goodwill, ongoing businesses and properties in good repair and condition, use commercially reasonable efforts to keep available Starwood's status as a REIT within the services of their current officers and other key employees and preserve their relationships with those persons having business dealings with them; provided that no action by Starwood, Holdco or any their respective subsidiaries with respect to matters specifically addressed by the following sentence shall be deemed to be a breach of this sentence unless such action would constitute a breach meaning of the following sentenceCode. Except as set forth in Section 4.1(a) Without limiting the generality of the Starwood Disclosure Letter, as otherwise expressly contemplated by this Agreement, as required by Applicable Law or as consented to by Marriott in writing (such consent not to be unreasonably withheld, conditioned or delayed)foregoing, during the period from the date of this Agreement to the Initial Holdco Merger earlier of (i) the termination of this Agreement and (ii) the Effective Time, except as set forth in Section 4.2 of the Starwood Disclosure Letter, and Holdco as contemplated by this Agreement and the Ancillary Agreements, Starwood shall not, not (and shall not permit any of their respective subsidiaries authorize, commit or agree to:) and shall cause the Starwood Subsidiaries not to (and not to authorize or commit or agree to):
(a) (i) (A) other than (I) any regular quarterly cash dividend made by Starwood in accordance with its existing dividend policy in an amount up to $0.375 per share of Starwood Common Stock for any such quarterly dividend and (II) dividends and distributions by a direct or indirect wholly owned subsidiary of Starwood to its direct or indirect parent, declare, set aside or pay any dividends on, or make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stockStarwood's shares of beneficial interest or any stock or other equity interests in any Starwood Subsidiary that is not directly or indirectly wholly owned by Starwood except (u) in the case of Starwood, for aggregate dividends on Starwood's common shares of beneficial interest not in excess of the greater of (A) 100% of the consolidated funds from operations of Starwood and the Starwood Subsidiaries and (B) 100% of the consolidated REIT taxable income of Starwood and the Starwood Subsidiaries, in each case for the applicable dividend period, and for dividends required to be paid on Starwood's preferred shares of beneficial interest in accordance with their terms, (Bv) any distributions by any other wholly owned Starwood Subsidiary, (w) dividends payable by Starwood pursuant to Section 2.2(d)(i), (x) other dividends necessary in order for Starwood to maintain its status as a REIT and (z) required distributions under the organizational documents governing the Starwood Subsidiaries or under other agreements to which the Starwood Subsidiaries are a party; (ii) split, combine or reclassify any shares of its capital stock beneficial interest or partnership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for such shares of its capital stockbeneficial interest or partnership interests, except pursuant to the Advisor Transaction and the Incorporation Merger or (Ciii) purchase, redeem or otherwise acquire any shares of capital stock beneficial interest of Starwood or any options, warrants or rights to acquire, or security convertible into, shares of beneficial interest of Starwood, Holdco or any of their respective subsidiaries or any other securities thereof or any rights, warrants, options or stock appreciation rights to acquire any such shares or other securities (other than the acquisition of shares from a holder of a Starwood Equity Award in satisfaction of withholding obligations or in payment of the exercise or reference price in accordance with the terms thereof as in effect on the date hereof or except in connection with the forfeiture use of Starwood Common Stock to pay the exercise price or withholding tax obligation upon the exercise of any rightsStarwood Stock Option, options upon the exercise of any Starwood Warrants or stock appreciation rights granted under a the Starwood Equity Plan)Stock Plan as presently permitted under that plan;
(iib) issue, deliver, deliver or sell, pledge or otherwise encumber grant any option or subject to any Lien other right in respect of, any shares of its capital stockbeneficial interest, any other voting or redeemable securities of Starwood or any Starwood Subsidiary or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or redeemable securities except to Starwood or a Starwood Subsidiary except (i) pursuant to the Advisor Transaction, the Incorporation Merger and the Stock Dividend, (ii) for issuances of shares of beneficial interest of Starwood in an amount not to exceed in the aggregate 19.9% of the aggregate issued and outstanding shares of beneficial interest of Starwood on the date of this Agreement and (iii) for issuances of Starwood Class B Common Shares upon the exercise of outstanding Starwood Stock Options pursuant to Section 6.1 of Starwood's Declaration of Trust;
(c) amend Starwood's declaration of trust, bylaws or other than comparable charter or organizational documents of Starwood or any Starwood Subsidiary, except as otherwise contemplated by this Agreement, pursuant to the Advisor Transaction and the Incorporation Merger or except for amendments to the organizational documents of the Starwood Subsidiaries to reflect the admission of new equity members and for other administrative matters;
(Ad) subject to Section 4.2(b) hereof, merge, consolidate or enter into any other business combination with any Person except for any merger, consolidation or business combination, as a result of which (i) Starwood Equity Awards granted is the surviving or successor Person or the ultimate parent of the surviving or successor Person and (ii) no change of control of Starwood will occur;
(e) subject to Section 4.2(b) hereof, (i) acquire or agree to acquire by purchasing all or a substantial portion of the equity securities or assets of, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association, business trust or other business organization or division thereof or interest therein or any assets in transactions involving capital, securities, assets or indebtedness, or any combination thereof, of Starwood or Starwood Subsidiaries in excess of $250,000,000, for all such transactions in the aggregate, except (x) for acquisitions of businesses whose primary activities are similar or closely related to the businesses currently conducted by Starwood or any of the Subsidiaries or whose assets consist primarily of assets similar to the Starwood Loans, (y) as otherwise necessary in order for Starwood to maintain its status as a REIT and (z) that Starwood may originate or otherwise acquire assets of types similar to the Starwood Loans in the ordinary course of its business consistent with past practice, without restriction; (B) in connection with the settlement of equity compensation granted under the Starwood Benefit Plans as in effect on the date hereof and (C) as required by any Starwood Benefit Plan as in effect on the date hereof);
(Aii) other than in the ordinary course of business consistent or in connection with past practice, amend, renew, terminate or waive in any material respect any Starwood Material Contract except for amendments or renewals without adverse changes, additions or deletions of terms, (B) enter into any new agreement or contract or other binding obligation of Starwood, Holdco or any of their respective subsidiaries containing any provision of the type described in clause (iii) of the definition of Starwood Material Contracts or (C) enter into or renew, or amend in any material respect, any material outsourcing agreement, contract or arrangement;
(iv) except for transactions pursuant to definitive agreements in effect as of the date of this Agreement, (A) acquire any hotel or any real property, whether through purchase, lease or otherwise, (B) enter into any joint venture, joint development or analogous transaction, (C) merge with or enter into a consolidation with or otherwise acquire any interest in any person, or acquire a substantial portion of the assets or business of any person (or any division or line of business thereof), (D) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or any other reorganization, (E) otherwise acquire an interest in (including, through leases, subleases and licenses of real property) or invest to secure new management or franchise agreements with respect to (including, through key money, loans, guarantees and similar arrangements) any assets, or (F) enter into any new line of business, except (x) in the case of clauses (A)borrowings under Starwood's existing credit lines, (B), (C) (but specifically excluding any merger or consolidation of Starwood, Holdco or Starwood Merger Sub with any other person under clause (C)) and (E), (1) transactions involving only direct or indirect wholly owned subsidiaries of Starwood (other than Holdco and Starwood Merger Sub), (2) guarantees permitted under Section 4.1(a)(vi) or (3) in one or more transactions with respect to which the aggregate key money does not exceed $150,000,000 and all other aggregate consideration (including loans and leases, and valuing leases for the purposes of this calculation at their net present value) does not exceed $100,000,000 and (y) in the case refinancings of clause outstanding indebtedness of Starwood and (E)z) securitizations of Starwood Loans, (1) acquisitions of supplies, materials, equipment and other tangible assets in the ordinary course of business consistent with past practice, (2) capital expenditures permitted mortgage or otherwise materially encumber or subject to be made pursuant to clause (xi) of this Section 4.1(a), any Lien or (3) office leases in the ordinary course of business;
(v) except for transactions pursuant to definitive agreements in effect as of the date of this Agreement, (A) transfer, sell, lease, sublease, license, sublicense lease or otherwise dispose of any of its material properties or assets or properties of Starwoodassign or materially encumber the right to receive income, Holdco dividends, distributions and the like or agree to do any of their respective subsidiaries the foregoing; (other than immaterial assets or propertiesiii) or (B) mortgage or pledge any material assets or material properties of Starwood, Holdco or any of their respective subsidiaries, or subject any such assets or properties to any other Lien (except Permitted Liens), other than, in the case of both clause (A) and clause (B), (1) in the ordinary course of business consistent with past practice, (2) assets and properties associated with discontinued operations or (3) sales or other dispositions in one or more transactions with respect to which the aggregate consideration does not exceed $300,000,000; provided in the case of clauses (1), (2) and (3), that (v) with respect to any hotel properties or joint ventures, Starwood receives or retains a long-term management agreement or franchise agreement on market terms consistent with past practices, (w) Starwood receives an amount that equals or exceeds the fair market value of such assets or properties, (x) Starwood does not engage in a sale and leaseback transaction, (y) Starwood does not issue guarantees or assurances against future performance or loss with an aggregate maximum funding exposure in excess of $50,000,000 and (z) at least 85% of the value of the aggregate consideration (disregarding any renovation commitments made by the acquiror and any hotel management agreement entered into in connection with such transaction) received by Starwood for all such hotel properties and joint ventures in the aggregate is received in cash;
(vi) create, incur or assume any indebtedness for borrowed moneymoney or guarantee any indebtedness of another person, issue or issue sell any debt securities or any right warrants or other rights to acquire any debt securities, assume, guarantee, endorse securities of Starwood or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness any Starwood Subsidiary; guarantee any debt securities of another person (including any hotel owner), person; enter into any "keep well" or other agreement to maintain any financial statement condition of another person, person or enter into any arrangement having the economic effect of any of the foregoingforegoing or prepay or refinance any indebtedness if, as a result of any of the activities described in this clause (iii), the ratio of Starwood's consolidated debt to consolidated equity, as determined in accordance with GAAP and based the most recent consolidated balance sheet of Starwood included in the Starwood SEC Documents filed through the time of the activity in question, would exceed 2.0:1.0 or (iv) make any loans, advances or capital contributions to, or enter into investments in, any other guarantees person other than loans, advances, capital contributions or assurances against future performance or loss, except investments which are (A) indebtedness incurred specifically permitted by this Agreement, (B) consistent with the types of activities Starwood engages in the ordinary course of its business and consistent with past practice under Starwood’s current borrowing agreements or any refinancing thereof; provided that any change of control repurchase rights of the holders of such refinanced indebtedness shall only become effective upon the occurrence of both a change of control of Starwood and a ratings agency downgrade of such indebtedness to below investment grade, (B) any inter-company indebtedness solely involving Starwood or its direct or indirect wholly owned subsidiaries (other than Holdco and Starwood Merger Sub), (C) as required by existing contracts entered into not in excess of $100,000,000 in the ordinary course of business, aggregate;
(Di) indebtedness for borrowed money not to exceed $200,000,000 change in aggregate principal amount outstanding at any time incurred by Starwood or material manner any of its subsidiaries other than methods, principles or practices of accounting in accordance with clauses (A) through (C), (E) guarantees or assurances against future performance or loss with an aggregate maximum funding exposure not to exceed $50,000,000 (after taking into account any guarantees or assurances against future performance or loss entered into in connection with activities otherwise permitted pursuant to paragraph (iv) effect at the Starwood Financial Statement Date or (vii) of this Section 4.1(a)) or (F) guarantees by Starwood of indebtedness of its subsidiaries (other than Holdco and Starwood Merger Sub), which indebtedness is incurred in compliance with this Section 4.1(a)(vi);
(vii) waive, release, assign, settle or compromise any pending claim, action, suit, litigation, proceeding, arbitration, investigation, audit or threatened Action which (A) is material controversy in each case relating to taxes, except in the business case of Starwood and its subsidiaries, taken as a whole, (B) otherwise involves the payment by Starwood of an amount in excess of $20,000,000 (excluding any amounts that may be paid under insurance policies), other than settlements or compromises of any pending relating to taxes on real property or threatened Action reflected or reserved against sales taxes in the balance sheet (or the notes thereto) of Starwood as of September 30, 2015 included in the Starwood Filed SEC Documents for an amount not materially to exceed, individually or in excess the aggregate, $5,000,000, except, in the case of clause (i), as may be required by the amount so reflected SEC, applicable Law or reserved or GAAP and, in the case of clause (Cii) involves any admission of criminal wrongdoingas may be required by applicable Law;
(viiig) except as required by provided in this Agreement, adopt any Starwood Benefit Plan in effect on the date of this Agreement new employee benefit plan, incentive plan, severance plan, bonus plan, stock option or as required by Applicable Lawssimilar plan, (A) increase grant new stock appreciation rights or amend any compensation existing plan or benefit torights, or enter into or amend any employmentemployment agreement or similar agreement or arrangement (other than as contemplated under Section 5.11) or, change-in-control or severance agreement with, any director, officer or other employee, other than, with respect to employees who are not directors or officers at the level of Senior Vice President or above, increases in compensation or benefits except in the ordinary course of business consistent with past practice, (B) grant or become obligated to grant any bonusesincrease in the compensation of officers or employees, except such changes as are required by law or which are not more favorable to participants than provisions currently in effect;
(h) enter into, amend or otherwise modify any of the material terms of, any agreement or arrangement with persons that are affiliates or, as of the date hereof, are officers or trustees of Starwood or any Starwood Subsidiary, except that in connection with the transactions contemplated by the Advisor Transaction Agreement, Starwood may terminate the Financial Advisory Agreement, dated as of March 18, 1998, between Starwood and the Starwood Advisors L.L.C.
(i) expend more than $3,000,000 in the aggregate for capital expenditures or commit to do the foregoing other than performance-based bonuses those projects, repairs or renovations in progress on the ordinary course date hereof or which are required to be performed by Starwood under a Starwood Lease or existing letter of business consistent with past practice, intent to any director, officer which Starwood or other employee, (C) enter into or adopt any new material a Starwood Benefit Plan (including any stock option, stock benefit or stock purchase plan) or amend or modifySubsidiary is a party, in a manner that would materially increase costs to Starwood, any existing each case as described in Section 4.2(i) of the Starwood Benefit Plan or accelerate the vesting of any compensation Disclosure Letter; or
(including options, restricted stock, restricted stock units, warrants, other shares of capital stock or rights of any kind to acquire any shares of capital stock or equity-based awardsj) for the benefit of any director, officer or other employee, (D) grant to any director, officer or other employee any right to receive, or pay to any director, officer or other employee, any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than after consultation with TriNet, settle any stockholder derivative or class action claims arising out of or in connection with any of the payment of cash severance or the provision of continued welfare benefits in the ordinary course of business consistent with past practice) or (E) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to be provided to any director, officer or other employeetransactions contemplated by this Agreement; provided, however, that each of Starwood and Marriott shall designate one or more persons to serve as point people for purposes of efficiently and expeditiously discussing and considering requests for consent or waivers under this Section and not enter into any such additional requests therefor made by Starwood;
(ix) change any of its financial or Tax accounting policies or procedures currently in effectsettlement which provides, except (A) as required by GAAP, Regulation S-X part of the Exchange Actsettlement, or a Governmental Entity or quasi-governmental authority (including for an injunction to be issued against the Financial Accounting Standards Board or any similar organization) or (B) as required by Applicable Law;
(x) other than foreign exchange rate swaps with respect to intercompany debt in the ordinary course consummation of business consistent with past practice, enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements;
(xi) other than as necessary to maintain value and functionality of Starwood’s facilities (whether as a result of a casualty or otherwise and whether or not covered by insurance), make aggregate capital expenditures that are greater than 120% of the aggregate amount of Starwood’s budgeted capital expenditures set forth on Section 4.1(a)(xi) of the Starwood Disclosure Letter;
(xii) amend the Starwood Charter or the Starwood By-laws or the organizational documents of Holdco or Starwood Merger Sub (other than amendments to the organizational documents of Holdco or Starwood Merger Sub as may be necessary to effect the transactions contemplated by this Agreement) or adopt any stockholder rights plan, “poison pill” antitakeover plan or similar device that would apply to the Combination Transactions;
(xiii) enter into any transaction, contract, agreement, arrangement or understanding between Starwood or any of its subsidiaries, on the one hand, and any of Starwood’s affiliates (other than wholly owned subsidiaries of Starwood), on the other hand, that would be required to be disclosed by Starwood under Item 404 of Regulation S-K under the Securities Act;
(xiv) enter into, or amend or modify in any material respect, any collective bargaining agreement, card check neutrality/labor peace agreement or accretion provisions with any labor union; or
(xv) authorize, or commit or agree to take, any of the foregoing actions. Notwithstanding the foregoing, nothing in this Section 4.1(a) shall be deemed to restrict, nor shall any of the provisions of this Section 4.1(a) be considered breached by, any action taken by Starwood (including any Tax elections made) or any of its subsidiaries that is required or contemplated by the Venus Documents or is necessary to effectuate the Venus-ILG Transaction or the Spin-Off or any of the transactions contemplated by the definitive documentation related thereto (including the Venus Documents). For the avoidance of doubt, none of the restrictions set forth in clauses (i) through (xiv) of this Section 4.1(a) shall apply to any action by Starwood or any of its subsidiaries that relate solely to the assets, capital stock, business or operations of Venus or do not relate to, or would not reasonably be expected to adversely impact, the assets, capital stock, business or operations of any of the other businesses of Starwood and its subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Trinet Corporate Realty Trust Inc)
Conduct of Business by Starwood. Except as set forth in Section 4.1(a) 4.2 of the Starwood Disclosure Letter, and as otherwise expressly contemplated by this Agreement, as required by Applicable Law or as consented Agreement and the Ancillary Agreements to by Marriott in writing (such consent not to be unreasonably withheld, conditioned or delayed)which Starwood is a party, during the period from the date of this Agreement to the Initial Holdco Merger earlier of (i) the termination of this Agreement and (ii) the Effective Time, Starwood and Holdco shall, and shall cause their respective subsidiaries the Starwood Subsidiaries to, carry on its and their respective businesses in the usual, regular and ordinary course consistent with past practice in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact their in all material respects its current business organizationsorganization, preserve their assets goodwill, ongoing businesses and properties in good repair and condition, use commercially reasonable efforts to keep available Starwood's status as a REIT within the services of their current officers and other key employees and preserve their relationships with those persons having business dealings with them; provided that no action by Starwood, Holdco or any their respective subsidiaries with respect to matters specifically addressed by the following sentence shall be deemed to be a breach of this sentence unless such action would constitute a breach meaning of the following sentenceCode. Except as set forth in Section 4.1(a) Without limiting the generality of the Starwood Disclosure Letter, as otherwise expressly contemplated by this Agreement, as required by Applicable Law or as consented to by Marriott in writing (such consent not to be unreasonably withheld, conditioned or delayed)foregoing, during the period from the date of this Agreement to the Initial Holdco Merger earlier of (i) the termination of this Agreement and (ii) the Effective Time, except as set forth in Section 4.2 of the Starwood Disclosure Letter, and Holdco as contemplated by this Agreement and the Ancillary Agreements, Starwood shall not, not (and shall not permit any of their respective subsidiaries authorize, commit or agree to:) and shall cause the Starwood Subsidiaries not to (and not to authorize or commit or agree to):
(a) (i) (A) other than (I) any regular quarterly cash dividend made by Starwood in accordance with its existing dividend policy in an amount up to $0.375 per share of Starwood Common Stock for any such quarterly dividend and (II) dividends and distributions by a direct or indirect wholly owned subsidiary of Starwood to its direct or indirect parent, declare, set aside or pay any dividends on, or make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stockStarwood's shares of beneficial interest or any stock or other equity interests in any Starwood Subsidiary that is not directly or indirectly wholly owned by Starwood except (u) in the case of Starwood, for aggregate dividends on Starwood's common shares of beneficial interest not in excess of the greater of (A) 100% of the consolidated funds from operations of Starwood and the Starwood Subsidiaries and (B) 100% of the consolidated REIT taxable income of Starwood and the Starwood Subsidiaries, in each case for the applicable dividend period, and for dividends required to be paid on Starwood's preferred shares of beneficial interest in accordance with their terms, (Bv) any distributions by any other wholly owned Starwood Subsidiary, (w) dividends payable by Starwood pursuant to Section 2.2(d)(i), (x) other dividends necessary in order for Starwood to maintain its status as a REIT and (z) required distributions under the organizational documents governing the Starwood Subsidiaries or under other agreements to which the Starwood Subsidiaries are a party; (ii) split, combine or reclassify any shares of its capital stock beneficial interest or partnership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for such shares of its capital stockbeneficial interest or partnership interests, except pursuant to the Advisor Transaction and the Incorporation Merger or (Ciii) purchase, redeem or otherwise acquire any shares of capital stock beneficial interest of Starwood or any options, warrants or rights to acquire, or security convertible into, shares of beneficial interest of Starwood, Holdco or any of their respective subsidiaries or any other securities thereof or any rights, warrants, options or stock appreciation rights to acquire any such shares or other securities (other than the acquisition of shares from a holder of a Starwood Equity Award in satisfaction of withholding obligations or in payment of the exercise or reference price in accordance with the terms thereof as in effect on the date hereof or except in connection with the forfeiture use of Starwood Common Stock to pay the exercise price or withholding tax obligation upon the exercise of any rightsStarwood Stock Option, options upon the exercise of any Starwood Warrants or stock appreciation rights granted under a the Starwood Equity Plan)Stock Plan as presently permitted under that plan;
(iib) issue, deliver, deliver or sell, pledge or otherwise encumber grant any option or subject to any Lien other right in respect of, any shares of its capital stockbeneficial interest, any other voting or redeemable securities of Starwood or any Starwood Subsidiary or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or redeemable securities except to Starwood or a Starwood Subsidiary except (i) pursuant to the Advisor Transaction, the Incorporation Merger and the Stock Dividend, (ii) for issuances of shares of beneficial interest of Starwood in an amount not to exceed in the aggregate 19.9% of the aggregate issued and outstanding shares of beneficial interest of Starwood on the date of this Agreement and (iii) for issuances of Starwood Class B Common Shares upon the exercise of outstanding Starwood Stock Options pursuant to Section 6.1 of Starwood's Declaration of Trust;
(c) amend Starwood's declaration of trust, bylaws or other than comparable charter or organizational documents of Starwood or any Starwood Subsidiary, except as otherwise contemplated by this Agreement, pursuant to the Advisor Transaction and the Incorporation Merger or except for amendments to the organizational documents of the Starwood Subsidiaries to reflect the admission of new equity members and for other administrative matters;
(Ad) subject to Section 4.2(b) hereof, merge, consolidate or enter into any other business combination with any Person except for any merger, consolidation or business combination, as a result of which (i) Starwood Equity Awards granted is the surviving or successor Person or the ultimate parent of the surviving or successor Person and (ii) no change of control of Starwood will occur;
(e) subject to Section 4.2(b) hereof, (i) acquire or agree to acquire by purchasing all or a substantial portion of the equity securities or assets of, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association, business trust or other business organization or division thereof or interest therein or any assets in transactions involving capital, securities, assets or indebtedness, or any combination thereof, of Starwood or Starwood Subsidiaries in excess of $250,000,000, for all such transactions in the aggregate, except (x) for acquisitions of businesses whose primary activities are similar or closely related to the businesses currently conducted by Starwood or any of the Subsidiaries or whose assets consist primarily of assets similar to the Starwood Loans, (y) as otherwise necessary in order for Starwood to maintain its status as a REIT and (z) that Starwood may originate or otherwise acquire assets of types similar to the Starwood Loans in the ordinary course of its business consistent with past practice, without restriction; (B) in connection with the settlement of equity compensation granted under the Starwood Benefit Plans as in effect on the date hereof and (C) as required by any Starwood Benefit Plan as in effect on the date hereof);
(Aii) other than in the ordinary course of business consistent or in connection with past practice, amend, renew, terminate or waive in any material respect any Starwood Material Contract except for amendments or renewals without adverse changes, additions or deletions of terms, (B) enter into any new agreement or contract or other binding obligation of Starwood, Holdco or any of their respective subsidiaries containing any provision of the type described in clause (iii) of the definition of Starwood Material Contracts or (C) enter into or renew, or amend in any material respect, any material outsourcing agreement, contract or arrangement;
(iv) except for transactions pursuant to definitive agreements in effect as of the date of this Agreement, (A) acquire any hotel or any real property, whether through purchase, lease or otherwise, (B) enter into any joint venture, joint development or analogous transaction, (C) merge with or enter into a consolidation with or otherwise acquire any interest in any person, or acquire a substantial portion of the assets or business of any person (or any division or line of business thereof), (D) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or any other reorganization, (E) otherwise acquire an interest in (including, through leases, subleases and licenses of real property) or invest to secure new management or franchise agreements with respect to (including, through key money, loans, guarantees and similar arrangements) any assets, or (F) enter into any new line of business, except (x) in the case of clauses (A)borrowings under Starwood's existing credit lines, (B), (C) (but specifically excluding any merger or consolidation of Starwood, Holdco or Starwood Merger Sub with any other person under clause (C)) and (E), (1) transactions involving only direct or indirect wholly owned subsidiaries of Starwood (other than Holdco and Starwood Merger Sub), (2) guarantees permitted under Section 4.1(a)(vi) or (3) in one or more transactions with respect to which the aggregate key money does not exceed $150,000,000 and all other aggregate consideration (including loans and leases, and valuing leases for the purposes of this calculation at their net present value) does not exceed $100,000,000 and (y) in the case refinancings of clause outstanding indebtedness of Starwood and (E)z) securitizations of Starwood Loans, (1) acquisitions of supplies, materials, equipment and other tangible assets in the ordinary course of business consistent with past practice, (2) capital expenditures permitted mortgage or otherwise materially encumber or subject to be made pursuant to clause (xi) of this Section 4.1(a), any Lien or (3) office leases in the ordinary course of business;
(v) except for transactions pursuant to definitive agreements in effect as of the date of this Agreement, (A) transfer, sell, lease, sublease, license, sublicense lease or otherwise dispose of any of its material properties or assets or properties of Starwoodassign or materially encumber the right to receive income, Holdco dividends, distributions and the like or agree to do any of their respective subsidiaries the foregoing; (other than immaterial assets or propertiesiii) or (B) mortgage or pledge any material assets or material properties of Starwood, Holdco or any of their respective subsidiaries, or subject any such assets or properties to any other Lien (except Permitted Liens), other than, in the case of both clause (A) and clause (B), (1) in the ordinary course of business consistent with past practice, (2) assets and properties associated with discontinued operations or (3) sales or other dispositions in one or more transactions with respect to which the aggregate consideration does not exceed $300,000,000; provided in the case of clauses (1), (2) and (3), that (v) with respect to any hotel properties or joint ventures, Starwood receives or retains a long-term management agreement or franchise agreement on market terms consistent with past practices, (w) Starwood receives an amount that equals or exceeds the fair market value of such assets or properties, (x) Starwood does not engage in a sale and leaseback transaction, (y) Starwood does not issue guarantees or assurances against future performance or loss with an aggregate maximum funding exposure in excess of $50,000,000 and (z) at least 85% of the value of the aggregate consideration (disregarding any renovation commitments made by the acquiror and any hotel management agreement entered into in connection with such transaction) received by Starwood for all such hotel properties and joint ventures in the aggregate is received in cash;
(vi) create, incur or assume any indebtedness for borrowed moneymoney or guarantee any indebtedness of another person, issue or issue sell any debt securities or any right warrants or other rights to acquire any debt securities, assume, guarantee, endorse securities of Starwood or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness any Starwood Subsidiary; guarantee any debt securities of another person (including any hotel owner), person; enter into any "keep well" or other agreement to maintain any financial statement condition of another person, person or enter into any arrangement having the economic effect of any of the foregoingforegoing or prepay or refinance any indebtedness if, as a result of any of the activities described in this clause (iii), the ratio of Starwood's consolidated debt to consolidated equity, as determined in accordance with GAAP and based the most recent consolidated balance sheet of Starwood included in the Starwood SEC Documents filed through the time of the activity in question, would exceed 2.0:1.0 or (iv) make any loans, advances or capital contributions to, or enter into investments in, any other guarantees person other than loans, advances, capital contributions or assurances against future performance or loss, except investments which are (A) indebtedness incurred specifically permitted by this Agreement, (B) consistent with the types of activities Starwood engages in the ordinary course of its business and consistent with past practice under Starwood’s current borrowing agreements or any refinancing thereof; provided that any change of control repurchase rights of the holders of such refinanced indebtedness shall only become effective upon the occurrence of both a change of control of Starwood and a ratings agency downgrade of such indebtedness to below investment grade, (B) any inter-company indebtedness solely involving Starwood or its direct or indirect wholly owned subsidiaries (other than Holdco and Starwood Merger Sub), (C) as required by existing contracts entered into not in excess of $100,000,000 in the ordinary course of business, aggregate;
(Di) indebtedness for borrowed money not to exceed $200,000,000 change in aggregate principal amount outstanding at any time incurred by Starwood or material manner any of its subsidiaries other than methods, principles or practices of accounting in accordance with clauses (A) through (C), (E) guarantees or assurances against future performance or loss with an aggregate maximum funding exposure not to exceed $50,000,000 (after taking into account any guarantees or assurances against future performance or loss entered into in connection with activities otherwise permitted pursuant to paragraph (iv) effect at the Starwood Financial Statement Date or (vii) of this Section 4.1(a)) or (F) guarantees by Starwood of indebtedness of its subsidiaries (other than Holdco and Starwood Merger Sub), which indebtedness is incurred in compliance with this Section 4.1(a)(vi);
(vii) waive, release, assign, settle or compromise any pending claim, action, suit, litigation, proceeding, arbitration, investigation, audit or threatened Action which (A) is material controversy in each case relating to taxes, except in the business case of Starwood and its subsidiaries, taken as a whole, (B) otherwise involves the payment by Starwood of an amount in excess of $20,000,000 (excluding any amounts that may be paid under insurance policies), other than settlements or compromises of any pending relating to taxes on real property or threatened Action reflected or reserved against sales taxes in the balance sheet (or the notes thereto) of Starwood as of September 30, 2015 included in the Starwood Filed SEC Documents for an amount not materially to exceed, individually or in excess the aggregate, $5,000,000, except, in the case of clause (i), as may be required by the amount so reflected SEC, applicable Law or reserved or GAAP and, in the case of clause (Cii) involves any admission of criminal wrongdoingas may be required by applicable Law;
(viiig) except as required by provided in this Agreement, adopt any Starwood Benefit Plan in effect on the date of this Agreement new employee benefit plan, incentive plan, severance plan, bonus plan, stock option or as required by Applicable Lawssimilar plan, (A) increase grant new stock appreciation rights or amend any compensation existing plan or benefit torights, or enter into or amend any employmentemployment agreement or similar agreement or arrangement (other than as contemplated under Section 5.11) or, change-in-control or severance agreement with, any director, officer or other employee, other than, with respect to employees who are not directors or officers at the level of Senior Vice President or above, increases in compensation or benefits except in the ordinary course of business consistent with past practice, (B) grant or become obligated to grant any bonuses, other than performance-based bonuses increase in the ordinary course compensation of business consistent with past practiceofficers or employees, except such changes as are required by law or which are not more favorable to any director, officer or other employee, (C) enter into or adopt any new material Starwood Benefit Plan (including any stock option, stock benefit or stock purchase plan) or amend or modify, participants than provisions currently in a manner that would materially increase costs to Starwood, any existing Starwood Benefit Plan or accelerate the vesting of any compensation (including options, restricted stock, restricted stock units, warrants, other shares of capital stock or rights of any kind to acquire any shares of capital stock or equity-based awards) for the benefit of any director, officer or other employee, (D) grant to any director, officer or other employee any right to receive, or pay to any director, officer or other employee, any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than the payment of cash severance or the provision of continued welfare benefits in the ordinary course of business consistent with past practice) or (E) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to be provided to any director, officer or other employee; provided, however, that each of Starwood and Marriott shall designate one or more persons to serve as point people for purposes of efficiently and expeditiously discussing and considering requests for consent or waivers under this Section and any such additional requests therefor made by Starwoodeffect;
(ixh) change enter into, amend or otherwise modify any of its financial the material terms of, any agreement or Tax accounting policies arrangement with persons that are affiliates or, as of the date hereof, are officers or procedures currently in effecttrustees of Starwood or any Starwood Subsidiary, except that in connection with the transactions contemplated by the Advisor Transaction Agreement, Starwood may terminate the Financial Advisory Agreement, dated as of March 18, 1998, between Starwood and the Starwood Advisors L.L.C.
(Ai) as expend more than $3,000,000 in the aggregate for capital expenditures or commit to do the foregoing other than those projects, repairs or renovations in progress on the date hereof or which are required to be performed by GAAP, Regulation S-X Starwood under a Starwood Lease or existing letter of the Exchange Act, intent to which Starwood or a Governmental Entity or quasi-governmental authority (including the Financial Accounting Standards Board or any similar organization) or (B) Starwood Subsidiary is a party, in each case as required by Applicable Law;
(x) other than foreign exchange rate swaps with respect to intercompany debt described in the ordinary course of business consistent with past practice, enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements;
(xi) other than as necessary to maintain value and functionality of Starwood’s facilities (whether as a result of a casualty or otherwise and whether or not covered by insurance), make aggregate capital expenditures that are greater than 120% of the aggregate amount of Starwood’s budgeted capital expenditures set forth on Section 4.1(a)(xi4.2(i) of the Starwood Disclosure Letter;; or
(xiij) amend the Starwood Charter or the Starwood By-laws or the organizational documents of Holdco or Starwood Merger Sub (other than amendments to the organizational documents after consultation with TriNet, settle any stockholder derivative or class action claims arising out of Holdco or Starwood Merger Sub as may be necessary to effect in connection with any of the transactions contemplated by this Agreement) or adopt any stockholder rights plan; PROVIDED, “poison pill” antitakeover plan or similar device HOWEVER, that would apply to the Combination Transactions;
(xiii) Starwood shall not enter into any transactionsuch settlement which provides, contractas part of the settlement, agreement, arrangement or understanding between Starwood or any of its subsidiaries, on the one hand, and any of Starwood’s affiliates (other than wholly owned subsidiaries of Starwood), on the other hand, that would be required for an injunction to be disclosed by Starwood under Item 404 of Regulation S-K under issued against the Securities Act;
(xiv) enter into, or amend or modify in any material respect, any collective bargaining agreement, card check neutrality/labor peace agreement or accretion provisions with any labor union; or
(xv) authorize, or commit or agree to take, any of the foregoing actions. Notwithstanding the foregoing, nothing in this Section 4.1(a) shall be deemed to restrict, nor shall any of the provisions of this Section 4.1(a) be considered breached by, any action taken by Starwood (including any Tax elections made) or any of its subsidiaries that is required or contemplated by the Venus Documents or is necessary to effectuate the Venus-ILG Transaction or the Spin-Off or any consummation of the transactions contemplated by the definitive documentation related thereto (including the Venus Documents). For the avoidance of doubt, none of the restrictions set forth in clauses (i) through (xiv) of this Section 4.1(a) shall apply to any action by Starwood or any of its subsidiaries that relate solely to the assets, capital stock, business or operations of Venus or do not relate to, or would not reasonably be expected to adversely impact, the assets, capital stock, business or operations of any of the other businesses of Starwood and its subsidiariesAgreement.
Appears in 1 contract
