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EXHIBIT 4.1
COMPOSITE COPY, AS AMENDED
PAIRING AGREEMENT
Agreement dated June 25, 1980, as amended as of February 1, 1995,
between Starwood Lodging Trust, a Maryland real estate investment trust
("Trust"), and Starwood Lodging Corporation, a Maryland corporation ("Company").
WHEREAS, the Trust will acquire all the issued and outstanding shares
of the Company and immediately declare a distribution in kind to the holders of
shares of the Trust, consisting of one share of common stock of the Company for
each issued share of beneficial interest of the Trust; and
WHEREAS, the Trust and the Company wish to cause their shares to be
paired, so that shares of beneficial interest of the Trust with a par value of
$.01 per share ("Shares") are transferable only with an equal number of shares
of common stock of the Company and vice versa:
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree:
1. On and after the close of business on June 25, 1980 ("Effective
Date"):
(a) the Shares of the Trust and the shares of common stock of the
Company shall not be transferable, and shall not be transferred on the
respective books of either entity, unless in connection with a transfer the
transferee acquires the same number of Shares of the Trust and shares of
common stock of the Company;
(b) upon presentation to the Trust's transfer agent of any certificate
evidencing ownership of Shares of the Trust issued prior to the Effective
Date duly endorsed for transfer or accompanied by a duly executed stock
power, there shall be issued to the transferee a certificate or
certificates evidencing both the number of Shares of the Trust so
transferred and the same number of shares of common stock of the Company,
and there shall be issued a certificate or certificates evidencing both any
Shares of the Trust not transferred and the same number of shares of common
stock of the Company; and
(c) neither the Trust nor the Company shall issue or transfer or agree
to issue or transfer any Shares of the Trust or shares of common stock of
the Company unless
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effective provision is made for the issuance or transfer to the same person
of the same number of Shares of the Trust and shares of common stock of the
Company and unless the Trust and the Company agree on the manner and basis
of allocating the consideration to be received between the Trust and the
Company or on the payment by one entity to the other of cash or other
consideration in lieu of a portion of such consideration.
2. Each certificate issued after the Effective Date evidencing Shares
of the Trust shall have printed on its reverse side a certificate evidencing the
same number of shares of common stock of the Company and shall be in a form
satisfactory to the American Stock Exchange. A legend shall be placed on the
face or reverse side of each certificate evidencing ownership of Shares of the
Trust and the shares of common stock of the Company issued on or after the
Effective Date referring to the restrictions on transfer of the Shares of the
Trust and the shares of common stock of the Company.
3. Promptly after the Effective Date, the Trust shall cause a Letter
of Transmittal to be sent to each holder of record of Shares of the Trust at the
Effective Date for use in forwarding the holder's certificate or certificates.
Upon receipt from any such holder of a properly completed Letter of Transmittal
accompanied by the appropriate certificate or certificates evidencing a number
of Shares of the Trust, the Trust shall cause to be delivered promptly to such
holder in substitution therefor a certificate or certificates registered in such
holder's name evidencing both the same number of Shares of the Trust and the
same number of shares of common stock of the Company. Until so surrendered, each
certificate evidencing Shares of the Trust outstanding prior to the Effective
Date shall be deemed, for all purposes to evidence ownership, in addition, of an
equal number of shares of common stock of the Company provided, however, that
the Trust and the Company may elect to refrain from paying a holder dividends or
other distributions declared with respect to either the Shares of the Trust or
shares of common stock of the Company until such holder surrenders his
certificate, at which time the holder shall be paid the amount of the
distributions, without interest, which theretofore became payable with respect
to the number of Shares of the Trust and shares of common stock of the Company
evidenced by such certificate.
4. Upon the exercise of any share option or conversion of any
security, which, prior to the Effective Date, was issued by the Trust, the
Company agrees that it will simultaneously issue a number of shares of common
stock of the Company to the exercising optionee or converting security holder
equal to the number of Shares of the Trust issued to the exercising optionee or
converting security holder pursuant to such exercise or conversion, and the
Trust agrees to make a payment to the Company
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or cause payment to be made to the Company, based on the relative fair value, at
the time of the exercise or conversion, of a Share of the Trust and a share of
common stock of the Company.
5. After the Effective Date, neither the Trust nor the Company shall
declare or pay any distribution consisting in whole or in part of Shares of the
Trust or shares of common stock of the Company, issue any securities convertible
into such Shares or shares or issue rights or warrants to purchase such Shares
or shares, or subdivide, combine or otherwise reclassify such Shares or shares,
unless both the Trust and the Company take the action to the end that the
outstanding Shares of the Trust and shares of common stock of the Company will
be paired on a one-to-one basis as contemplated herein.
6. After the Effective Date, neither the Trust nor the Company will be
a party to any merger, consolidation, sale of assets, liquidation or other form
of reorganization pursuant to with either the Shares of the Trust or the shares
of common stock of the Company are converted, redeemed or otherwise changed
unless the other entity is also a party to such transaction.
7. The Trust and the Company agree to appoint the same banks or trust
companies as transfer agents and the same banks or trust companies as registrars
for the Shares of the Trust and shares of common stock of the Company.
8. The Company agrees to cause its shares of common stock to be
promptly registered pursuant to Section 12 of the Securities Exchange Act of
1934.
9. The Trust and the Company shall use their best efforts to effect
the listing of the shares of common stock of the Company on the American Stock
Exchange.
10. This Agreement and the pairing contemplated herein may be
terminated upon the affirmative vote of the holders of a majority of the
outstanding Shares of the Trust and shares of common stock of the Company. In
the event of termination, the parties agree to cooperate to effect a separation
of the paired securities to permit the separate issuance and transfer thereof
and, in that connection, appropriate provision shall be made to honor any
outstanding commitments to issue additional Shares of the Trust and shares of
common stock of the Company.
11. This Agreement may be amended by action of the Trustees of the
Trust and the Board of Directors of the Company, provided that any such action
must be approved by a majority of the outstanding Shares of the Trust and the
shares of common stock of the Company if such amendment would permit a
separation of the paired Shares of the Trust and shares of common stock of the
Company.
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12. (a) In the event that (x) the Trust issues Excess Trust Shares,
par value $.01 per share, of the Trust ("Excess Trust Shares") or the Company
issues shares of Excess Common Stock, par value $.01 per share, of the Company
("Excess Common Shares"), and (y) the Shares and the shares of common stock of
the Company which were converted into such Excess Trust Shares and such Excess
Common Shares, respectively, were paired pursuant to this Agreement, then in
addition to, and not in any respect in limitation of, the provisions of the
Declaration of Trust of the Trust and the Amended and Restated Articles of
Incorporation of the Company (as each may be amended from time to time):
(i) such Excess Trust Shares and such Excess Common Shares shall not
be transferable, and shall not be transferred on the respective books of
either the Trust or the Company, unless in connection with a transfer the
transferor transfers and the transferee acquires the same number of Excess
Trust Shares and Excess Common Shares;
(ii) neither the Trust nor the Company shall issue or transfer or
agree to issue or transfer any Excess Trust Shares or Excess Common Shares
unless effective provision is made for the issuance or transfer to the same
person of the same number of Excess Trust Shares and Excess Common Shares;
and
(iii) each certificate evidencing Excess Trust Shares shall have
printed on its reverse side a certificate evidencing the same number of
Excess Common Shares. A legend shall be placed on the face or reverse side
of each certificate evidencing ownership of Excess Trust Shares and Excess
Common Shares referring to the restrictions on transfer of the Excess Trust
Shares and Excess Common Shares.
(b) In the event that (x) the Trust issues Excess Preferred Shares,
par value $.01 per share, of the Trust ("Excess Preferred Shares") or the
Company issues shares of Excess Preferred Stock, par value $.01 per shares, of
the Company ("Excess Preferred Stock"), and (y) the shares of beneficial
interest of the Trust and the shares of preferred stock of the Company which
were converted into such Excess Preferred Shares and such Excess Preferred
Stock, respectively, were paired pursuant to this Agreement, then in addition
to, and not in any respect in limitation of, the provisions of the Declaration
of Trust of the Trust and the Amended and Restated Articles of Incorporation of
the Company (as each may be amended from time to time):
(i) such Excess Preferred Shares and such Excess Preferred Stock shall
not be transferable, and shall not be transferred on the respective books
of either the Trust or the Company, unless in connection with a transfer
the
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transferor transfers and the transferee acquires the same number of Excess
Preferred Shares and Excess Preferred Stock;
(ii) neither the Trust nor the Company shall issue or transfer or
agree to issue or transfer any Excess Preferred Shares or Excess Preferred
Stock unless effective provision is made for the issuance or transfer to
the same person of the same number of Excess Preferred Shares and Excess
Preferred Stock; and
(iii) each certificate evidencing Excess Preferred Shares shall have
printed on its reverse side a certificate evidencing the same number of
Excess Preferred Stock. A legend shall be placed on the face or reverse
side of each certificate evidencing ownership of Excess Preferred Shares
and Excess Preferred Stock referring to the restrictions on transfer of the
Excess Preferred Shares and Excess Preferred Stock.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
STARWOOD LODGING TRUST
By:
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STARWOOD LODGING CORPORATION
By:
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