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EXHIBIT 10.35
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of July 24, 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) an
Agreement and Plan of Merger 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.
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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 any 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 (B), in the case
of the Wynopt Partnerships, Paired Shares eligible to be sold pursuant to Rule
144 or Rule 145 of the Securities Act. 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.
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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), 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.
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(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
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Holder 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 declared 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 Sections 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 for 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. Notwithstanding 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
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Registrable Securities on the basis of the amount of Registrable Securities
requested to be included therein by each such Holder.
(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 or 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
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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) 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.
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(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 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
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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 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 Prospectuses
relating to such Registrable 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 underwriters, 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
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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 thereof or the underwriters, if any, to
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
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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 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" letters 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 Holders
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 Holders 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 persons 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 security holders earning
statements satisfying the provisions 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 fiscal quarter of the
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Company and OPCO, after the effective date of a Registration Statement, which
statements shall cover said 12-month period.
(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 date hereof; 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 Xxxxxxxxxxxx
00
00
Xxxxxxxxx), (xxx) 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 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 hold 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
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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.
(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 defend 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 of 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.
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(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 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
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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.
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
00
00
xxx XXXX Xxxxx X. Xxxxxxxx
Xxxxxxx 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.
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(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, an 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]
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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:
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REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
CF Securities, L.P.
By Mill Spring Holdings, Inc.,
General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Wynopt Investment Partnership
Level II, L.P.
By Hampstead GenPar, L.P., General
Partner
By: HH GenPar Partners, General Partner
By: Hampstead Associates, Inc.,
General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Wynopt Investment Partnership, L.P.
By Wynopt Investment GenPar, Inc.,
General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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EXHIBIT A
[Date]
FORM OF AUTHORIZING CERTIFICATE
Each of the undersigned Holders, together seeking to include in a
Demand Registration Registrable Securities having a market value (calculated as
described in Section 3(a) of the Registration Rights Agreement to which this
Form of Authorizing Certificate is an Exhibit) of at least $20,000,000, hereby
certifies that:
1. Such Holder's name is set forth below, and the number of
Registrable Securities held by such Holder and the number of
Registrable Securities, if different, such Holder would like
to have registered is set forth opposite such Holder's name.
Number of Number of Registrable
Name Registrable Securities Shares Desired to be Registered
---- ---------------------- -------------------------------
2. Such Holder is requesting the registration of only those
Paired Shares issued to such Holder pursuant to the Stock
Purchase Agreement or to be issued to the Holder upon
conversion of Unpaired Shares issued to the Holder pursuant to
the Stock Purchase Agreement.
3. All terms used but not defined herein shall have the meanings
ascribed thereto in that certain Registration Rights Agreement
described above.
EXECUTED as of the date set forth above.
[Signatures of Holders]
