EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of the 17th
day of February, 1999, is entered into by and among the
shareholders of CRC Holdings, Inc., a Florida corporation
("CRC"), identified on Schedule A attached hereto (each a
"Shareholder" and, collectively, the "Shareholders") and Carnival
Corporation, a Panama corporation ("CCL").
WHEREAS, each Shareholder owns, beneficially and of
record, the number of shares of (a) Series A Redeemable
Convertible Preferred Stock, par value $.01 per share, of Wyndham
International, Inc. (the "OpCo Series A Preferred") and (b)
Series B Redeemable Convertible Preferred Stock, par value $.01
per share, of Wyndham International, Inc. (the "OpCo Series B
Preferred"), as set forth opposite such Shareholder's name on
Schedule A (the aggregate amount of shares of OpCo Series A
Preferred and OpCo Series B Preferred owned by the Shareholders,
the "Preferred Shares");
WHEREAS, the Preferred Shares are currently pledged to
CCL pursuant to the terms of those certain Security and Pledge
Agreements, dated as of November 30, 1994, as amended
(collectively and together with any other related instruments or
agreements, the "Pledge Agreements") to secure in part certain
obligations of the Shareholders owing to CCL, as evidenced by
promissory notes (collectively, the "CCL Notes") made by the
Shareholders in favor of CCL (Schedule B attached hereto sets
forth, for each Shareholder, as of the date hereof, the principal
amount plus accrued and unpaid interest in respect of such
Shareholder's CCL Note);
WHEREAS, the CCL Notes were executed and delivered by
the Shareholders in connection with the transactions contemplated
by the Stock Purchase Agreement dated as of November 30, 1994, as
amended (the "Stock Purchase Agreement"), among CCL and the
Shareholders;
WHEREAS, CRC and Jackpot Enterprises, Inc. ("Jackpot")
have entered into that certain Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to
which, among other things, following the spinoff of certain
assets and liabilities of CRC as described in the Merger
Agreement and the transactions contemplated by the Satisfaction
Agreement (as hereinafter defined), CRC will be merged (the
"Merger") with and into Jackpot;
WHEREAS, in connection with the execution of the
Merger Agreement, the parties to this Agreement entered into that
certain Note Extension and Satisfaction Agreement, dated as of
the date hereof (the "Satisfaction Agreement"), pursuant to
which, among other things (a) the Shareholders agreed to repay
the CCL Notes upon consummation of the Merger and (b) CCL agreed
to extend the maturity of the CCL Notes.
WHEREAS, in order to facilitate the repayment of a
portion of the CCL Notes prior to the consummation of the Merger,
the Shareholders desire to sell, transfer and assign all of the
Preferred Shares together with all dividends thereon and CCL
desires to purchase and acquire all of the Preferred Shares
together with all dividends thereon upon the terms and conditions
and subject to the provisions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual
premises contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale of Shares.
(a) Subject to the terms and conditions of this
Agreement, each Shareholder agrees to sell, transfer and assign
to CCL the Preferred Shares and CCL agrees to purchase from the
Shareholders the Preferred Shares.
(b) CCL shall at the Closing release the Preferred
Shares from the lien of the Pledge Agreements and the
Shareholders shall simultaneously deliver to CCL or one of its
affiliates the certificates representing the Preferred Shares
purchased hereunder together with executed stock powers in a form
sufficient to convey to CCL or one of its affiliates good and
valid title to the Preferred Shares free and clear of all, liens,
charges, security interests, options, rights, encumbrances and
claims of any kind or nature whatsoever, along with all right,
title and interest in and to all accrued and unpaid dividends on
the Shares, including all of the securities received with respect
to the Preferred Shares from the stock dividend declared on
December 22, 1998 (the "Dividend Shares" and together with the
Preferred Shares, the "Shares"). Schedule A sets forth the
number of Dividend Shares owned by each Shareholder and to be
transferred to CCL hereunder. The Shareholders shall at the
Closing deliver irrevocable transfer instructions to the Wyndham
International, Inc. ("Wyndham") transfer agent which direct such
transfer agent to deliver certificates representing the Dividend
Shares to CCL.
2. Purchase Price; Closing.
(a) The aggregate purchase price (the "Purchase
Price") for the Shares shall be an amount equal to the product of
(x) 838,896 (representing the number of Preferred Shares) and (y)
$5.625 (representing the closing trading price of one share of
common stock of Patriot American Hospitality, Inc. ("Patriot")
and one share of common stock of Wyndham paired and transferrable
only in combination as a single unit on February 12, 1999, as
reported on the New York Stock Exchange). The Purchase Price
shall be paid upon the Closing as a reduction in the amounts
owing under the CCL Notes with such reduction first being applied
to all accrued but unpaid interest on such notes and all
remaining proceeds being applied to a reduction in the principal
amounts owing under such notes and interest shall thereupon cease
to accrue on such amounts. The CCL Notes shall be further
reduced in the aggregate amount of $369,114 upon receipt by CCL
of the certificates representing the Dividend Shares. After such
reduction, the CCL Notes shall thereby represent the principal
amounts owing to CCL as set forth on Schedule B.
(b) The closing of the transactions contemplated
hereby (the "Closing") shall take place immediately following the
execution of this Agreement at the offices of CRC Holdings, Inc.,
0000 Xxxx Xxxxxx, Xxxxx, XX 00000, or at such other place as the
parties may materially agree upon.
3. Shareholders' Representations and Warranties. In order
to induce CCL to enter into this Agreement, each Shareholder
severally (but not jointly) represents and warrants to CCL as
follows:
(a) Such Shareholder is of legal age and competence
and has full power and authority to execute and deliver this
Agreement, and when fully executed and delivered, this Agreement
will constitute a legal, valid and binding obligation of the
Shareholder enforceable in accordance with its terms.
(b) The Preferred Shares set forth opposite such
Shareholder's name on Schedule A hereto and the Dividend Shares
set forth opposite such Shareholder's name on Schedule A hereto
are owned by such Shareholder free and clear of any and all
liens, charges, security interests, options, rights, encumbrances
and claims of any kind or nature whatsoever, other than the liens
under the Pledge Agreements, and the sale, transfer and
assignment of such Shares, will be made free and clear of all
liens, charges, security interests, options, rights, encumbrances
and claims of any kind or nature whatsoever. The Dividend Shares
constitute all dividends paid or payable with respect to the
Preferred Shares, other than the dividends previously delivered
to CCL. Other than (i) the Pledge Agreements, (ii) that certain
Series A and Series B Preferred Stock Lockup Agreement, dated
June 30, 1998, by and among the Shareholders, CCL, Patriot and
Wyndham and (iii) the Rights of First Offer with respect to the
Shares provided in the Certificate of Designations, Preferences
and Rights of A Series of Preferred Stock of Wyndham, there are
no voting trusts, voting agreements, lockup agreements, buy-sell
agreements or similar understandings applicable to such Shares.
(c) The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby and the
fulfillment of the terms and provisions hereof does not and will
not constitute a default or conflict with, any material
agreement, indenture or other instrument to which the Shareholder
is bound, any judgment, decree, order or award of any court,
government body or arbitrator to which the Shareholder is
subject, any law, rule or regulation applicable to the
Shareholder, any charter documents relating to the Shares or the
Lockup Agreement.
(d) The Shareholder hereby recognizes and
acknowledges that the Purchase Price has been reached as a result
of arms-length negotiations among the Shareholders and CCL and
that the Purchase Price is no indication of the actual market
value of the Shares.
4. CCL's Representations and Warranties. In order to
induce the Shareholders to enter into this Agreement, CCL
represents and warrants the following:
(a) CCL has full power and authority to execute and
deliver this Agreement, and when fully executed and delivered,
this Agreement will constitute a legal, valid and binding
obligation of CCL enforceable in accordance with its terms.
(b) The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the
fulfillment of the terms or provisions hereof does not and will
not constitute a default or conflict with, any material
agreement, indenture or other instrument to which CCL is bound,
any judgment, decree, order or award of any court, government
body or arbitrator to which CCL is subject, or any law, rule or
regulation applicable to CCL.
(c) CCL has such knowledge and experience in
business matters and it is capable of evaluating and has
evaluated the merits and risks of the purchase of the Shares.
(d) CCL hereby recognizes and acknowledges that the
Purchase Price has been reached as a result of arms-length
negotiations among the Shareholders and CCL and that the Purchase
Price is no indication of the actual market value of the Shares.
(e) CCL understands and acknowledges that the sale
and transfer of the Shares pursuant to this Agreement have not
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any other applicable securities laws, the
Shares are being sold and transferred to CCL in a transaction not
requiring registration under the Securities Act, and the Shares
may not be offered, sold or otherwise transferred by CCL except
in compliance with the registration requirements of the
Securities Act or any other applicable securities laws or
pursuant to an exemption thereunder. The Shares which CCL is
acquiring will be acquired solely for the account of CCL and are
not being purchased with a view to effecting a public
distribution within the meaning of the federal securities laws.
(f) CCL is not relying on any representations or
warranties, explicit or implied, from any party (including any
Shareholder) in connection with the matters set forth in this
Agreement, other than the express representations and warranties
included in Section 3 hereof. CCL has had access to such
financial and other information concerning Wyndham, Patriot and
the Shares as it has deemed necessary in connection with its
decision to purchase the Shares, including an opportunity to ask
questions of and request information from the Shareholders,
Patriot and Wyndham. CCL acknowledges that one Shareholder is a
director of Wyndham (the "Director Shareholder") and CCL further
acknowledges that no information relating to Wyndham or Patriot
shall be attributed to any Shareholder (including the Director
Shareholder) based on any knowledge or information that may have
come to the attention of the Director Shareholder in his capacity
as a member of the Board of Directors of Wyndham. CCL hereby
waives and releases the Shareholders from any and all claims,
whether known or unknown, relating to the value of the Shares or
the Purchase Price. Notwithstanding the foregoing, CCL does not
waive or release the Shareholders from any and all claims,
whether known or unknown, arising from a breach of any
representation or warranty of any Shareholder contained herein.
(g) CCL is an institutional "accredited investor"
within the meaning of subparagraph (a)(1), (2), (3), or (7) of
Rule 501 under the Securities Act. CCL is aware that it may be
required to bear the economic risk of an investment in the Shares
for an indefinite period of time and CCL is able to bear such
risk for an indefinite period.
5. Further Assurances. The parties will, upon reasonable
request, execute and deliver all such further assignments,
endorsements and other documents as may be necessary in order to
perfect the purchase by CCL of the Shares.
6. Entire Agreement; No Oral Modification. This Agreement
contains the entire agreement among the parties hereto with
respect to the purchase and sale of the Shares and supersedes all
prior agreements and understandings with respect thereto and may
not be amended or modified except in a writing signed by all of
the parties hereto.
7. Binding Effect; Benefits. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and
their respective heirs, successors and assigns; however, nothing
in this Agreement, expressed or implied, is intended to confer
any benefit on any other person other than the parties hereto,
the affiliate of CCL, if any, designated to take title to the
Shares or their respective heirs, successors or assigns.
8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original and all of which together shall be deemed to be one and
the same instrument.
9. Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with the laws of the
United States and the State of Florida, both substantive and
remedial. Exclusive venue and jurisdiction for any action
arising hereunder shall lie in the competent court of
jurisdiction located in Dade County, Florida, and the parties
specifically agree to submit to such jurisdiction and waive any
objections to such venue.
10. Headings. The section headings herein are included
for convenience only and are not to be deemed a part of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
SHAREHOLDERS:
/s/ Xxxxxxxx Xxxxxx
XXXXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
XXXXXX XXXXXX
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX
/s/ Xxxxxx Xxxxxxx
XXXXXX XXXXXXX
/s/ W. Xxxxx Xxxxxxx
W. XXXXX XXXXXXX
CARNIVAL CORPORATION:
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Sr. Vice President-Finance
and CFO
SCHEDULE A
Number of Number of
Name of Shareholder Preferred Shares Dividend Shares
Xxxxxxxx Xxxxxx 276,176 20,253
Xxxxxx Xxxxxx 276,176 20,253
Xxxxxx Xxxxxx 102,337 7,505
Xxxxx Xxxxxx 102,337 7,505
Xxxxxx Xxxxxxx 40,935 3,002
W. Xxxxx Xxxxxxx 40,935 3,002
TOTAL: 838,896 61,519
SCHEDULE B
Principal
Principal and Outstanding Under
Accrued Interest the CCL Notes
Name of Shareholder Prior to Sale of Immediately
Shares Following Sale of
Shares
Xxxxxxxx Xxxxxx $6,641,505 $4,966,497
Xxxxxx Xxxxxx 6,641,505 4,966,497
Xxxxxx Xxxxxx 2,461,007 1,840,334
Xxxxx Xxxxxx 2,461,007 1,840,334
Xxxxxx Xxxxxxx 984,406 736,136
W. Xxxxx Xxxxxxx 984,406 736,136
