EXHIBIT 10.5
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of __________, 1997, by and between Patriot American
Hospitality, Inc., a Delaware corporation (the "Company"), Patriot American
Hospitality Operating Company, a Delaware corporation ("OPCO"), and each of the
parties signatory hereto.
RECITALS
--------
WHEREAS, pursuant to (a) a Stock Purchase Agreement dated April 14, 1997
(the "Stock Purchase Agreement") between Patriot American Hospitality, Inc., a
Virginia corporation since merged with and into the Company and CF Securities,
L.P., a Texas limited partnership ("Family Securities"), (b) and Agreement and
Plan of Merger (the "Merger Agreement") between the Company and Wyndham Hotel
Corporation, a Delaware corporation ("Wyndham") and (c) a Ratification Agreement
dated July 24, 1997 (the "OPCO Ratification Agreement") among OPCO, Family
Securities and Wyndham, Family Securities and the Wynopt Partnerships (as
defined in Section 1 hereof)(the Wynopt Partnerships and Family Securities,
collectively, the "Holders" and each, a "Holder") received (i) shares of common
stock, par value $.01 per share, of the Company (the "Company Stock") and shares
of common stock, par value $.01 per share, of OPCO (the "OPCO Stock"), which
shares of Company Stock and OPCO Stock are paired and transferable and may be
traded only in combination as a single unit on the New York Stock Exchange (the
"Paired Shares"), and (ii) shares of unpaired Series A Preferred Stock, par
value $.01 per share, of the Company (the "Unpaired Shares"), which Unpaired
Shares are convertible under certain conditions into an equivalent number of
Paired Shares.
WHEREAS, as an inducement to Family Securities to enter into and close
the transaction contemplated by the Stock Purchase Agreement, the Company and
OPCO agreed to execute this Agreement conferring on the Holders the benefits
hereby provided;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and in the Stock Purchase Agreement, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
-----------
have the following meanings when used herein with initial capital letters:
Advice: As defined in Section 6 hereof.
------
Demand Notice: As defined in Section 3 hereof.
-------------
Demand Registration: As defined in Section 3 hereof.
-------------------
Losses: As defined in Section 8 hereof.
------
Piggyback Registration: As defined in Section 4 hereof.
----------------------
Prospectus: The prospectus included in any Registration Statement
----------
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by an prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
Registrable Securities: The Paired Shares either (i) issued to Holders
----------------------
pursuant to the Stock Purchase Agreement or (ii) to be issued to Holders upon
conversion of the Unpaired Shares issued to Holders pursuant to the Stock
Purchase Agreement, in any case excluding (A) Paired Shares that have been
disposed of pursuant to a Registration Statement relating to the sale thereof
that has become effective under the Securities Act or pursuant to Rule 144 or
Rule 145 of the Securities Act, or (B), in the case of the Wynopt Partnerships,
Paired Shares that have become eligible to be sold pursuant to Rule 144 or Rule
145 of the Securities Act, provided that all such Paired Shares referred to in
this clause (B) have become immediately salable within the volume restrictions
imposed by Rule 144 and Rule 145 or as otherwise permitted by either of such
Rules. Registrable Securities shall also include any Paired Shares or other
securities (or Paired Shares underlying such other securities) that may be
received by the Holders (x) as a result of a stock dividend on or stock split of
Registrable Securities (or stock dividend on or stock split of the Unpaired
Shares in respect of which Registrable Securities are issuable) or (y) on
account of Registrable Securities (or Unpaired Shares in respect of which
Registrable Securities are issuable) in a recapitalization of or other
transaction involving the Company and/or OPCO.
Registration Statement: Any registration statement of the Company and
----------------------
OPCO under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
SEC: The Securities and Exchange Commission.
---
Securities Act: The Securities Act of 1933, as amended.
--------------
Underwritten Offering: A distribution, registered pursuant to the
---------------------
Securities Act, in which securities of the Company and OPCO are sold to the
public through one or more underwriters.
Wynopt Partnerships: Collectively, (i) Wynopt Investment Partnership
-------------------
Level II, L.P., a Texas limited partnership and (ii) Wynopt Investment
Partnership, L.P., a Texas limited partnership.
2
2. Shelf Registration of Resales.
-----------------------------
(a) Registration of Resales on Form S-4. The Company and OPCO
-----------------------------------
represent and warrant to the Holders that (i) the Holders' offering and resale
(in accordance with the intended methods of distribution heretofore indicated by
the Holders) of all their Registrable Securities have been registered under the
Securities Act on the Form S-4 Registration Statement (No. 333-____) (the "Form
S-4") filed by the Company and OPCO in connection with their issuance of Paired
Shares and Unpaired Shares in connection with the merger of Wyndham with and
into OPCO (the "Merger") and related transactions, (ii) any post-effective
amendment to the Form S-4 necessary to effect such registration of such offering
and resale has been declared effective by the SEC, (iii) neither the SEC nor any
other federal or state governmental authority has issued a stop order suspending
the effectiveness of the Form S-4 or, to the actual knowledge of either the
Company or OPCO, initiated proceedings for that purpose, (iv) neither the
Company nor OPCO has received any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction nor, to the actual knowledge of either
the Company or OPCO, has any proceeding been initiated or threatened for such
purpose, and (v) to the actual knowledge of the Company and OPCO, no event has
occurred that makes any statement made in the Form S-4 or related resale
Prospectus contained therein (the "Resale Prospectus") or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in the Form S-4 or
Resale Prospectus or any such document so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and, in the case of the Resale Prospectus,
it will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(b) Conversion of Form S-4. Subject to the other provisions of this
----------------------
Agreement (including the covenant contained in Section 6 with respect to the
absence of Suspension Notices during the 60 days following the date hereof), the
parties acknowledge that the Company and OPCO may, in their sole discretion,
convert the Form S-4 to a Registration Statement on another form permitted to be
used by the Company and OPCO for the registration under the Securities Act of
the Holders' offering and resale of Registrable Securities (in accordance with
the intended methods of distribution); provided, however, that nothing in this
-------- -------
Section shall negate the Company's and OPCO's obligation to file and maintain
the effectiveness of the Registration Statement referred to in this Section 2.
References herein to the "Form S-4" shall be deemed to include any Registration
Statement into which it shall be converted, and the Form S-4 shall be deemed to
be a "Registration Statement" for all purposes of this Agreement.
(c) Maintenance of Effectiveness. The Company and OPCO agree to use
----------------------------
commercially reasonable efforts to keep the Form S-4 effective for a period of
four (4) years from the effective date thereof.
(d) Underwritten Offerings During Pendency of the Form S-4. At any
------------------------------------------------------
time and from time to time during the period in which the Company and OPCO are
obligated to use commercially reasonable efforts to maintain the effectiveness
of the Form S-4, one or more Holders holding Registrable Securities with a
market value of at least $20,000,000 (calculated based on the closing sale price
of such securities on the principal securities exchange on which such securities
are listed on the business day immediately preceding such initial notice) may
give notice to the Company and OPCO of their desire to effect an Underwritten
Offering, and the Company and OPCO shall, if requested by the managing
underwriter or underwriters, if any, or Holders holding a majority of the
Registrable Securities being registered, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment to the Form S-4 (or in another
Registration Statement, if required) such information as the managing
underwriter or underwriters, if any, and such Holders agree should be included
therein as may be required by applicable law and (ii) make all required filings
of such Prospectus supplement or such post-effective amendment (or other
Registration Statement) as soon as practicable after the Company and OPCO have
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment (or other Registration Statement);
provided, however, that the Company and OPCO will not be required to take any
-------- -------
actions under this paragraph that are not, in the opinion of counsel for the
Company and OPCO, in compliance with applicable law. In any such Underwritten
Offering or in any offering which may not be underwritten, the Company and OPCO
shall, if requested by the managing underwriter, the underwriters, the selling
agents, or the investment bankers, if any, of the Holders making the offering or
by such Holders, take such actions as may be appropriate for such offering as
are described in Section 6 hereof.
3. Demand Registration.
-------------------
(a) Requests for Registration. At any time and from time to time
-------------------------
after the period during which the Company and OPCO are obligated to use
commercially reasonable efforts to maintain the effectiveness of the Form S-4,
subject to the conditions set forth in this Agreement, including, without
limitation, the conditions set forth in this paragraph 3(a), one or more Holders
will have the right, by written notice delivered to the Company (a "Demand
Notice"), to require the Company and OPCO to register Registrable Securities
under and in accordance with the provisions of the Securities Act (a "Demand
Registration"); provided, however, that: (i) no such Demand Registration may be
-------- -------
required unless the Holder or Holders requesting such Demand Registration
provide to the Company and OPCO a certificate (the "Authorizing Certificate"),
substantially in the form of Exhibit A hereto, that is signed by Holders seeking
---------
to include in such Demand Registration Registrable Securities with a market
value of at least $20,000,000 (calculated based on the closing sale price of
such securities on the principal securities exchange on which such securities
are listed on the business day immediately preceding the date of the Demand
Notice) as of the date the Demand Notice is given and (ii) no Demand Notice may
be given prior to nine (9) months after the effective date of the immediately
preceding Demand Registration. The Authorizing Certificate shall set forth (A)
the name of each Holder signing such Authorizing Certificate, (B) the number of
Registrable Securities held by each such Holder, and, if different, the number
of Registrable Securities such Holder has elected to have registered, (C) a
certification from each such Holder
4
that it is requesting the registration of only those Paired Shares received by
such Holder pursuant to the Stock Purchase Agreement or upon conversion of
Unpaired Shares issued to such Holder pursuant to the Stock Purchase Agreement
and (D) the intended methods of disposition of the Registrable Securities.
Notwithstanding the foregoing, a good faith decision by a Holder to withdraw
Registrable Securities from registration will not affect the Company's
obligations hereunder even if the amount remaining to be registered has a market
value of less than $20,000,000 (calculated as aforesaid), provided that such a
registration will constitute a Demand Registration under this Section 3.
(b) Filing and Effectiveness. The Company and OPCO will file a
------------------------
Registration Statement relating to any Demand Registration within 60 days
following the date on which the Demand Notice is given and will use all
reasonable efforts to cause the same to be declare effective by the SEC as soon
as practicable thereafter. If any Demand Registration is requested to be
effected as a Shelf Registration (as defined herein) by the Holders demanding
such Demand Registration, the Company and OPCO will keep the Registration
Statement filed in respect thereof effective for a period of six (6) months from
the date on which the SEC declares such Registration Statement effective
(subject to extension pursuant to Section 5 and 6 hereof) or such shorter period
that will terminate when all Registrable Securities covered by such Registration
Statement have been sold pursuant to such Registration Statement.
Within ten (10) business days after receipt of such Demand Notice, the
Company will serve written notice thereof (the "Notice") to all other Holders
and will, subject to the provisions of Section 3(c) hereof, include in such
registration all Registrable Securities with respect to which the Company
receives written requests from inclusion therein within ten (10) business days
after the receipt of the Notice by the applicable Holder. The Holder will be
permitted to withdraw in good faith all or part of the Registrable Securities
from a Demand Registration at any time prior to the effective date of such
Demand Registration, in which event the Company and OPCO will promptly amend or,
if applicable, withdraw the related Registration Statement.
(c) Priority on Demand Registration. If Registrable Securities
-------------------------------
are to be registered pursuant to a Demand Registration, the Company and OPCO
shall provide written notice to the other Holders and will permit all such
Holders who request to be included in the Demand Registration to include any or
all Registrable Securities held by such Holders in such Demand Registration.
Nothwithstanding the foregoing, if the managing underwriter or underwriters of
an Underwritten Offering to which such Demand Registration relates advises the
Holders that the total amount of Registrable Securities that such Holders intend
to include in such Demand Registration is in the aggregate such as to materially
and adversely affect the success of such offering, then the number of
Registrable Securities to be included in such Demand Registration will, if
necessary, be reduced and there will be included in such underwritten offering
the number of Registrable Securities that, in the opinion of such managing
underwriter or underwriters, can be sold without materially and adversely
affecting the success of such Underwritten Offering, allocated pro rata among
--- ----
the Holders of Registrable Securities on the basis of the amount of Registrable
Securities requested to be included therein by each such Holder.
5
(d) Postponement of Demand Registration. The Company and OPCO will
-----------------------------------
be entitled to postpone the filing period of any Demand Registration for a
reasonable period of time not in excess of 90 calendar days if the Company and
OPCO determine, in the good faith exercise of the business judgment of their
respective Boards of Directors, that such registration and offering could
materially interfere with bona fide financing plans of the Company and OPCO or
---- ----
would require disclosure of information, the premature disclosure of which could
materially and adversely affect the Company and OPCO. If the Company and OPCO
postpone the filing of a Registration Statement, they will promptly notify the
Holders in writing (i) when the events or circumstances permitting such
postponement have ended and (ii) that the decision to postpone was made by the
Boards of Directors of the Company and OPCO, respectively, in accordance with
this Section 3(d).
4. Piggyback Registration.
----------------------
(a) Right to Piggyback. If at any time while any Registrable
------------------
Securities are outstanding the Company and OPCO propose to file a Registration
Statement with respect to an Underwritten Offering of Paired Shares solely for
cash (other than a Registration Statement (i) on Form S-8 or any successor form
or in connection with any employee or director welfare, benefit or compensation
plan, (ii) on Form S-4 or any successor form or in connection with an exchange
offer, (iii) in connection with a rights offering or a dividend reinvestment and
share purchase plan offered exclusively to existing holders of Paired Shares,
(iv) in connection with an offering solely to employees of the Company and OPCO
or their affiliates, (v) relating to a transaction pursuant to Rule 145 of the
Securities Act, or (vi) a shelf registration on Form S-3 or any successor form
for a primary offering of securities by the Company and/or OPCO), whether or not
for their own account, the Company and OPCO shall give to Holders holding
Unpaired Shares and Registrable Securities written notice of such proposed
filing at least ten (10) business days before filing. The notice referred to in
the preceding sentence shall offer Holders the opportunity to register such
amount of Registrable Securities as each Holder may request (a "Piggyback
Registration"). Subject to Section 4(b) hereof, the Company and OPCO will
include in each such Piggyback Registration all Registrable Securities with
respect to which the Company and OPCO have received written requests for
inclusion therein. The Holders will be permitted to withdraw all or part of the
Registrable Securities from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration.
(b) Priority on Piggyback Registrations. The Company and OPCO will
-----------------------------------
cause the managing underwriter or underwriters of a proposed Underwritten
Offering on behalf of the Company and OPCO to permit Holders holding Registrable
Securities requested to be included in the registration for such offering to
include therein all such Registrable Securities requested to be so included on
the same terms and conditions as any securities of the Company and OPCO included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of such Underwritten Offering deliver an opinion to the Holders to
the effect that (i) the total amount of securities which such Holders and the
Company and OPCO propose to include in such Underwritten Offering or (ii) the
effect of the potential withdrawal of any Registrable Securities by any Holder
(except any Holder who has theretofore waived such Holder's right to withdraw
all or part of its Registrable Securities pursuant to Section 4(a)
6
hereof) prior to the effective date of the Registration Statement relating to
such Underwritten Offering, is such as to materially and adversely affect the
success of such offering, then the amount of securities to be included therein
for the account of Holders (allocated pro rata among such Holders on the basis
--- ----
of the Registrable Securities requested to be included therein by each such
Holder) will be reduced (to zero if necessary) to reduce the total amount of
securities to be included in such offering to the amount recommended by such
managing underwriter or underwriters. The managing underwriter or underwriters,
applying the same standard, may also exclude entirely from such offering all
Registerable Securities proposed to be included in such offering to the extent
the Registrable Securities are not of the same class as securities of the
Company included in such offering.
5. Restrictions on Sale by Holders. Each Holder agrees, if such Holder is
-------------------------------
so requested (pursuant to a timely written notice) by the managing underwriter
or underwriters in an underwritten offering of any class of securities that
constitutes Registrable Securities, not to effect any public sale or
distribution of any of the Company's and OPCO's securities of such class (except
as part of such underwritten offering), including a sale pursuant to Rule 144,
during the 15-calendar day period prior to, and during the 90-calendar day
period beginning on, the closing date of such underwritten offering.
6. Registration Procedures. In connection with the Company's and OPCO's
-----------------------
registration obligations pursuant to Sections 2, 3 and 4 hereof, the Company and
OPCO will effect such registrations to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company and OPCO will as expeditiously as
possible, and in each case to the extent applicable:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and
cause each such Registration Statement to become effective and remain effective
as provided herein; provided, however, that before filing a Registration
-------- -------
Statement or Prospectus or any amendments or supplements thereto (including
documents that would be incorporated or deemed to be incorporated therein by
reference) the Company and OPCO will furnish to the Holders holding Registrable
Securities covered by such Registration Statement, not more than one counsel
chosen by Holders holding a majority of the Registrable Securities being
registered ("Special Counsel") and the managing underwriters, if any, copies of
all such documents proposed to be filed, which documents will be subject to the
review of such Holders, such Special Counsel and such underwriters, and the
Company and OPCO will not file any such Registration Statement or amendment
thereto or any Prospectus or any supplement thereto (including such documents
which, upon filing, will be incorporated or deemed to be incorporated by
reference therein) to which the Holders holding a majority of the Registrable
Securities covered by such Registration Statement or the managing underwriter,
if any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration
7
Statement continuously effective for the applicable period specified in Sections
2 and 3; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement as so amended or in such Prospectus as
so supplemented.
(c) Notify the selling Holders and the managing underwriters, if any,
promptly, and (if requested by any such person) confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iv) if at any time the representations and warranties of the
Company contained in any agreement contemplated by Section 6(n) hereof
(including any underwriting agreement) cease to be true and correct, (v) of the
receipt by the Company and OPCO of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the occurrence of any
event which makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or which requires the making of any
changes in a Registration Statement, Prospectus or any such document so that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and,
in the case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vii) of the Company's and OPCO's
reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment.
(e) If requested by the managing underwriters, if any, or Holders
holding a majority of the Registrable Securities being registered, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such Holders agree should
be included therein as may be required by applicable law and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company and OPCO have received notification of
8
the matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company and OPCO will not be required to
-------- -------
take any actions under this Section 6(e) that are not, in the opinion of counsel
for the Company and OPCO, in compliance with applicable law.
(f) Furnish to each selling Holder and each managing underwriter, if
any, without charge, at least one conformed copy of the Registration Statement
and any post-effective amendment thereto, including financial statements (but
excluding schedules, all documents incorporated or deemed incorporated therein
by reference and all exhibits, unless requested in writing by such holder,
counsel or underwriter).
(g) Deliver to each selling Holder and the underwriters, if any,
without charge as many copies of the Prospectus or Prospectus relating to such
Registration Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such persons may request; and the Company and
OPCO hereby consent to the use of such Prospectus or each amendment or
supplement thereto by each of the selling Holders and the underwriters, if any,
in connection with the offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders, the underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any seller or underwriter
reasonably requests in writing; use all reasonable efforts to keep such
registration or qualification (or exemption therefrom) effective during the
period the applicable Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in each such jurisdiction of the Registrable Securities covered by
the applicable Registration Statement; provided, however, that the Company and
-------- -------
OPCO will not be required to (i) qualify to do business in any jurisdiction in
which they are not then so qualified or (ii) take any action that would subject
them to service of process in any such jurisdiction in which they are not then
so subject.
(i) Cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwritings, if any, shall request at least two business days
prior to any sale of Registrable Securities to the underwriters.
(j) Use all reasonable efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States except as may be required solely as a consequence of the nature of any
selling Holder's business, in which case the Company and OPCO will cooperate in
all reasonable respects with the filing of such Registration Statement and the
granting of such approvals as may be necessary to enable the seller or sellers
9
thereof or the underwriters, if any, consummate the disposition of such
Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section 6(c)(vi)
or 6(c)(vii) hereof, prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to 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 being
sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) If requested by Holders holding a majority of the Registrable
Securities covered by such Registration Statement or the managing underwriters,
if any, use all reasonable efforts to cause all Registrable Securities covered
by such Registration Statement to be (i) listed on each securities exchange, if
any, on which similar securities issued by the Company and OPCO are then listed
or, if no similar securities issued by the Company and OPCO are then so listed,
on the New York Stock Exchange or another national securities exchange if the
securities qualify to be so listed or (ii) authorized to be quoted on the
National Association of Securities Dealers Automated Quotation System ("NASDAQ")
or the National Market System of NASDAQ if the securities qualify to be so
quoted.
(m) As needed, (i) engage an appropriate transfer agent and provide
the transfer agent with printed certificates for the Registrable Securities in a
form eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Registrable Securities.
(n) Enter into such customary agreements (including, in the event of
an Underwritten Offering, an underwriting agreement in form, scope and substance
as is customary in underwritten offerings) and take all such other commercially
reasonable and customary actions in connection therewith (including those
reasonably requested by the Holders holding a majority of the Registrable
Securities being sold or, in the event of an Underwritten Offering, those
reasonably requested by the managing underwriters) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration, (i) make such
representations and warranties to the Holders holding such Registrable
Securities and the underwriters, if any, with respect to the businesses of the
Company and OPCO and their subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by reference
therein, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested; (ii) obtain opinions of counsel to the Company and OPCO
and updates thereof, which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and the
Holders holding a majority of the Registrable Securities being sold, addressed
to such selling Holder and each of the underwriters, if any, covering the
matters customarily covered
10
in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters, including, without
limitation, the matters referred to in Section 6(n)(i) hereof; (iii) use
reasonable efforts to obtain "comfort" letter and updates thereof from the
independent certified public accountants of the Company and OPCO (and, if
necessary, any other certified public accountants of any subsidiary of the
Company or OPCO or of any business acquired by the Company or OPCO for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed to each selling Holder and each of the
underwriters, if any, such letters to be in customary form and covering matters
of the type customarily covered in "comfort" letters in connection with
underwritten offerings; and (iv) deliver such documents and certificates as may
be reasonably requested by Holder holding a majority of the Registrable
Securities being sold and the managing underwriters, if any, to evidence the
continued validity of the representations and warranties of the Company and OPCO
and their subsidiaries made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting agreement
or similar agreement entered into by the Company or OPCO. The foregoing actions
will be taken in connection with each closing under such underwriting or similar
agreement as and to the extent required thereunder.
(o) Make available for reasonable inspection during normal business
hours by a representative of the Holder holding Registrable Securities being
sold, any underwriter participating in any disposition of Registrable
Securities, and any attorney or accountant retained by such selling Holders or
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company and OPCO and their subsidiaries, and cause the
officers, directors and employees of the Company and OPCO and their subsidiaries
to supply all information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with such Registration
Statement; provided, however, that any records, information or documents that
-------- -------
are designated by the Company or OPCO in writing as confidential at the time of
delivery of such records, information or documents will be kept confidential by
such person unless (i) such records, information or documents are in the public
domain or otherwise publicly available, (ii) disclosure of such records,
information or documents is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, or (iii) disclosure
of such records, information or documents, in the reasonable opinion of counsel
to such person, is otherwise required by law (including, without limitation,
pursuant to the requirements of the Securities Act).
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to their securities holders earning statement
satisfying the provision of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 calendar days after the end of any 12-month period (or 90 calendar days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts underwritten offering,
or (ii) if not sold to underwriters in such an offering, commencing on the first
day of the first quarter of the Company and OPCO, after the effective date of
a Registration Statement, which statements shall cover said 12-month period.
11
(q) In connection with any underwritten offering, cause appropriate
members of management to cooperate and participate on a reasonable basis in the
underwriters' "road show" conferences related to such offering.
The Company and OPCO may require each seller of Registrable Securities as
to which any registration is being effected to furnish to the Company and OPCO
such information regarding the distribution of such Registrable Securities as
the Company and OPCO may, from time to time, reasonably request in writing and
the Company and OPCO may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
Each Holder will be deemed to have agreed by virtue of its acquisition of
Registrable Securities that, upon receipt of any notice from the Company and
OPCO of the occurrence of any event of the kind described in Section 6(c)(ii),
6(c)(iii), 6(c)(v), 6(c)(vi) or 6(c)(vii) hereof ("Suspension Notice"), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a "Black-Out") until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(k) hereof, or until it is advised in writing (the
"Advice") by the Company and OPCO that the use of the applicable Prospectus may
be resumed, and such Holder has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus. Except as expressly provided, herein, there shall
be no limitation with regard to the number of Suspension Notices the Company and
OPCO are entitled to give hereunder; provided, however, that neither the Company
-------- -------
nor OPCO shall give a Suspension Notice at any time prior to the date which is
sixty (60) days from the effective date of the merger provided for in the Merger
Agreement; and provided, further, that in no event shall the aggregate number of
-------- -------
days the Holders are subject to Black-Out during any period of 12 consecutive
months exceed 180. In the event the Company and OPCO shall give a Suspension
Notice, the time period prescribed in Section 2 hereof will be extended by the
number of days during the time period from and including the date of the giving
of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated By Section 6(k)
hereof or (y) the Advice.
7. Registration Expenses. All fees and expenses incident to the
---------------------
performance of or compliance with this Agreement by the Company and OPCO will be
borne by the Company and OPCO whether or not any of the Registration Statements
become effective. Such fees and expenses will include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and
expenses for compliance with securities or "blue sky" laws) (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing a reasonable number of prospectuses if the printing of
such prospectuses is requested by the Holders holding a majority of the
Registrable Securities included in any Registration Statement), (iii) messenger,
telephone and delivery expenses incurred by the Company and OPCO, (iv) fees and
disbursements of counsel for the Company and OPCO incurred by the Company and
OPCO, (v) fees and disbursements of all independent certified public accountants
referred to in Section 6(n)(iii) hereof (including the expenses of any special
audit
12
and "comfort" letter required by or incident to such performance) incurred by
the Company and OPCO, (vi) Securities Act liability insurance if the Company or
OPCO so desires such insurance, and (vii) fees and expenses of all other persons
retained by the Company or OPCO. In addition, the company and OPCO will pay
their internal expenses (including without limitation all salaries and expenses
of their officers and employees performing legal or accounting duties), the
expense of any annual audit, the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities exchange on
which similar securities issued by the Company are then listed and the fees and
expenses of any person, including special experts, retained by the Company or
OPCO. In no event, however, will the Company or OPCO be responsible for any
underwriting discount or selling commission with respect to any sale of
Registrable Securities pursuant to this Agreement, and the Holders shall be
responsible on a pro rata basis for any taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
Registrable Securities and for any legal, accounting and other expenses incurred
by them in connection with any Registration Statement.
8. Indemnification.
---------------
(a) Indemnification by the Company. The Company and OPCO will,
------------------------------
without limitation as to time, indemnify and held harmless, to the fullest
extent permitted by law, each Holder holding Registrable Securities registered
pursuant to this Agreement, the officers, directors and agents and employees of
each of them, each person who controls such a Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of any such controlling person, from
and against all losses, claims, damages, liabilities, costs (including without
limitation the costs of investigation and attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same are based solely upon information furnished in
writing to the Company and OPCO by such Holder expressly for use therein;
provided, however, that the Company and OPCO will not be liable to any Holder to
-------- -------
the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Statement, Prospectus or preliminary prospectus if either (A)
(i) such Holder failed to send or deliver a copy of the Prospectus with or
prior to the delivery of written confirmation of the sale by such Holder of a
Registrable Security to the person asserting the claim from which such Losses
arise and (ii) the Prospectus would have completely corrected such untrue
statement or alleged untrue statement or such omission or alleged omission; or
(B) such untrue statement or alleged untrue statement, omission or alleged
omission is completely corrected in an amendment or supplement to the Prospectus
previously furnished by or on behalf of the Company and OPCO with copies of the
Prospectus, and such Holder thereafter fails to deliver such Prospectus as so
amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the person asserting the claim from which such Losses arise.
13
(b) Indemnification by Holders. In connection with any
-------------------------
Registration Statement in which a Holder is participating, such Holder will
furnish to the Company and OPCO in writing such information as the Company and
OPCO reasonably request for use in connection with any Registration Statement,
Prospectus or preliminary prospectus and will indemnify, to the fullest extent
permitted by law, the Company and OPCO, their respective directors and officers,
agents and employees, each person who controls the Company and OPCO (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling persons,
from and against all Losses arising out of or based upon any untrue statement of
a material fact contained in any Registration Statement, Prospectus or
preliminary prospectus or arising out of or based upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing by
such Holder to the Company and OPCO expressly for use in such Registration
Statement, Prospectus or preliminary prospectus and was relied upon by the
Company and OPCO in the preparation of such Registration Statement, Prospectus
or preliminary prospectus. In no event will the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the proceeds (net of
payment of all expenses) received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any person shall
--------------------------------------
become entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
-------- -------
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All fees
and expenses (including any fees and expenses incurred in connection with
investigating or preparing to define such action or proceeding) will be paid to
the indemnified party, as incurred, within five calendar days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). The indemnifying party will not consent to entry or any judgment or
enter into any settlement or otherwise seek to terminate any action or
proceeding in which any indemnified party is or could be a party and as to which
indemnification or contribution could be sought by such indemnified party under
this Section 8, unless such judgment, settlement or other termination includes
as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance satisfactory to the
indemnified party, from all liability in respect of such claim or litigation for
which such indemnified party would be entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
------------
Section 8 is unavailable to an indemnified party under Section 8(a) or 8(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, will, severally but not jointly, contribute to the
amount paid or payable by such indemnified party as a result of such Losses, in
such
14
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or indemnifying parties, on the
one hand, and such indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
--- ----
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling Holder will not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages which such indemnifying party 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) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity, contribution and expense reimbursement obligations of the
Company and OPCO hereunder will be in addition to any liability the Company or
OPCO may otherwise have hereunder or otherwise. The provisions of this Section 8
will survive so long as Registrable Securities remain outstanding,
notwithstanding any permitted transfer of the Registrable Securities by any
Holder thereof or any termination of this Agreement.
9. Underwritten Registrations. If any of the Registrable Securities
--------------------------
covered by the Form S-4 or any Demand Registration are to be sold in an
Underwritten Offering, the Holders holding a majority of the Registrable
Securities included in the Demand Notice may propose an investment banker or
investment bankers and manager or managers to manage the Underwritten Offering;
provided, that the Company and OPCO will have reasonable rights of substitution
--------
with respect to such Holders' choice of such investment banker or manager based
on the Company's and OPCO's established relationships with certain financial
institutions. If any Piggyback Registration is an Underwritten Offering, the
Company and OPCO will have the exclusive right to select the investment banker
or investment bankers and managers to administer the offering. Each party hereto
agrees that, in connection with any Underwritten Offering hereunder, it shall
undertake to offer customary indemnification to the participating underwriters.
15
10. Miscellaneous.
-------------
(a) Remedies. In the event of a breach by the Company and OPCO of
--------
their obligations under this Agreement, each Holder, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and OPCO agree that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by them of any provision of this
Agreement and hereby further agree that, in the event of any action for specific
performance in respect of such breach, they will waive the defense that a remedy
at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement may
----------------------
not be amended, modified or supplemented without the prior written consent of
the Company and OPCO, and Holders holding in excess of 50% of the Registrable
Securities and Unpaired Shares in respect of which Registrable Securities are
issuable; provided, however, that the Wynopt Partnerships' rights hereunder may
-------- -------
not be adversely affected by any such amendment, modification or supplement
without the consent of a majority of the Wynopt Partnerships.
(c) Notices. Except as set forth below, all notices and other
-------
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company and OPCO at the
following address and to a Holder at the address set forth on his or her
signature page to this Agreement (or at such other address for any party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
If to the Company: Xxxx X. Xxxxxxxx
Patriot American Hospitality, Inc.
Tri-West Plaza
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
16
and OPCO Xxxxx X. Xxxxxxxx
Wyndham Hotel Corporation
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(d) Successors and Assigns. This Agreement will inure to the
----------------------
benefit of and be binding upon the successors and assigns of the Company and
OPCO. This Agreement may not be assigned by any Holder, except to a constituent
partner or shareholder of such Holder which is an accredited investor, unless
the proposed transferee or assignee of such Holder (a "Holder Transferee")
agrees in a writing reasonably acceptable to the Company and OPCO to be bound by
the terms of this Agreement, and (a) with regard to a Holder Transferee
receiving Registrable Securities held by Family Securities, executes any and all
documents reasonably requested by the Company and OPCO to bind such Holder
Transferee to the terms of (i) that certain Standstill Agreement, dated as of
April 14, 1997, by and between the Company and Family Securities and (ii) that
certain Voting Agreement, dated as of April 14, 1997, by and between the Company
and Family Securities. Except as otherwise expressly permitted herein, any
attempted assignment hereof by any Holder will be void and of no effect and
shall terminate all obligations of the Company and OPCO with respect to such
Holder. Notwithstanding the foregoing, each of the indemnified parties shall be
entitled to enforce the covenants set forth in Section 8 hereof.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and will not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement will be governed by and construed
-------------
in accordance with the laws of the State of Delaware, as applied to contracts
made and performed within the State of Delaware, without regard to principles of
conflict of laws.
17
(h) Severability. If any term, provision, covenant or restriction
------------
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(i) Entire Agreement. This Agreement is intended by the parties as
----------------
a final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter including, without limitation, that certain Registration Rights Agreement
dated as of May 24, 1996, by and between Wyndham and the other parties signatory
thereto.
(j) Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, and determined by the court, will
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
[Remainder of page intentionally left blank]
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PATRIOT AMERICAN HOSPITALITY, INC.
----------------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
----------------------------------
Name:
Title:
19
Registration Rights Agreement
Holder Signature Page
ADDRESS: CF Securities, L.P.
CF Securities, L.P. By Mill Spring Holdings, Inc.,
0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxxx
By:
------------------------------
Name:
-----------------------------
Title:
---------------------------
ADDRESS: Wynopt Investment Partnership Level II, L.P.
Wynopt Investment Partnership By Hampstead GenPar, L.P., General Partner
Level II, L.P.
4200 Texas Commerce Tower West By: HH GenPar Partners, General
0000 Xxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
By: Hampstead Associates, Inc.,
General Partner
By:
------------------------
Name:
----------------------
Title:
---------------------
ADDRESS: Wynopt Investment Partnership, L.P.
Wynopt Investment Partnership, L.P. By Wynopt Investment GenPar, Inc., General
4200 Texas Commerce Tower West Partner
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000 By:
-----------------------
Name:
---------------------
Title:
--------------------
20
