EXHIBIT 6
EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of June 8,
2004 and effective upon the closing of the initial public offering of Common
Stock (as defined herein) of the Company (as defined below), by and among
Xxxxxxxx Xxxxxx ("Xxxxxx"), Strategic Hotel Capital, Inc., a Maryland
corporation (the "Company"), WHSHC, L.L.C., a Delaware limited liability company
and W9/WHSHC, L.L.C. I, a Delaware limited liability company (each of the
foregoing, excluding Xxxxxx, a "Stockholder" and together the "Stockholders").
WHEREAS, Xxxxxx is a member of the board of directors of the Company;
WHEREAS, Xxxxxx and the Company have entered into an Employment
Agreement, dated of even date herewith ("Employment Agreement") providing, among
other terms, for the nomination of Xxxxxx to the board of directors of the
Company from term to term;
WHEREAS, the Company is undertaking an initial public offering of
shares of common stock, par value $0.01 per share ("Common Stock"); and
WHEREAS, Xxxxxx and the Stockholders desire to provide herein for
certain matters relating to the corporate governance of the Company.
NOW, THEREFORE, in consideration of the covenants set forth herein, and
for other good and valuable consideration, intending to be legally bound hereby,
the parties agree as follows:
1. Voting Agreement. In connection with each meeting of the
stockholders of the Company at which directors of the Company are to be elected,
so long as this Agreement is in effect and Xxxxxx has been duly nominated as a
director, each Stockholder agrees to affirmatively Vote all of such
Stockholder's shares of capital stock of the Company acquired by the
Stockholders upon the initial public offering by the Company and over which such
Stockholder has voting power or control ("Covered Shares") in favor of Xxxxxx;
provided, however, if any Stockholder determines in good faith that to Vote for
Xxxxxx would likely be a breach of such Stockholder fiduciary obligations to
beneficial owners of any of the Stockholders, then such Stockholder will not be
obligated to Vote the Covered Shares of the Stockholders in favor of Xxxxxx. The
failure of Xxxxxx to be elected as a director of the Company at any election
where Xxxxxx is nominated and the Stockholders failed to Vote in favor of Xxxxxx
pursuant to the prior sentence (including as a result of the proviso in the
prior sentence) shall constitute a "Constructive Termination" under the
Employment Agreement. The foregoing sentence shall be Xxxxxx'x sole remedy
under this Agreement. For purposes of this Agreement, "Vote" shall include
voting in person or by proxy in favor of or against any action, otherwise
consenting or withholding consent in respect of any action or taking other
action in favor of or against any action.
2. Termination. All rights and obligations hereunder shall terminate at
the earlier of (i) such time as the Stockholders (or any affiliate that is under
the control of a Stockholder or a successor to such Stockholder or affiliate)
own or control such number of Covered Shares representing less than 5% of the
voting power to elect directors of the Company; or (ii) the termination of the
Employment Agreement. Further, with respect to any Covered Shares (i) that are
sold by a Stockholder either on the open market or otherwise (other than to an
affiliate that is under the control of a Stockholder), or (ii) in which any
person has a security interest and forecloses on such security interest
("Foreclosing Person"), neither the Stockholders nor any purchaser of Covered
Shares from the Stockholders or Foreclosing Person will have any obligations
under this Agreement with respect to voting the Covered Shares acquired by such
purchaser or Foreclosing Person.
3. Miscellaneous.
3.1. Modification and Waiver. No amendment or modification of the terms
or provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by each of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provisions hereof. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof.
3.2. Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof.
Any previous agreement or understandings between the parties hereto regarding
the subject matter hereof are merged into and superseded by this Agreement.
3.3. Severability. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
3.4. No Implied Rights. Nothing herein, express or implied, is intended
to or shall be construed to confer upon or give to any person, firm, corporation
or legal entity, other than the parties hereto, any interest, rights, remedies
or other benefits with respect to or in connection with any agreement or
provision contained herein or contemplated hereby.
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3.5. GOVERNING LAW. THIS AGREEMENT AND ALL DISPUTES AND CONTROVERSIES
ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE LAWS
OF ANY OTHER JURISDICTION THAT MIGHT BE APPLIED BECAUSE OF THE CONFLICTS OF LAWS
PRINCIPLES OF THE STATE OF NEW YORK.
3.6. Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
3.7. Notices. All notices and other communications under this Agreement
shall be in writing, and shall be deemed to have been duly given on the date of
delivery if delivered personally or on the third business day after mailing or
if mailed to the party to whom notice is to be given by first class mail,
registered or certified, postage prepaid, return receipt requested, and
addressed as follows (until any such address is changed by notice duly given):
(a) If to Xxxxxx, to him at the following address:
Strategic Hotel Capital, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(b) If to the Company, to it at the following address:
Strategic Hotel Capital, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Att: General Counsel___________________
(c) If to WHSHC, L.L.C., to it at the following address:
Whitehall Street Real Estate Limited Partnership VII
c/o 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(d) If to W9/WHSHC, L.L.C. I, to it at the following address:
Whitehall Street Real Estate Limited Partnership IX
c/o 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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3.8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
[signatures follow]
IN WITNESS WHEREOF, the Stockholders and Xxxxxx have executed and
delivered this Agreement, or a counterpart hereof, as of the date first written
above.
XXXXXXXX XXXXXX
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
STRATEGIC HOTEL CAPITAL, INC.,
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President
THE STOCKHOLDERS:
WHSHC, L.L.C.
By: Whitehall Street Real Estate
Limited Partnership VII
By: WH Advisors, L.L.C. VII,
general partner
By: /s/ Xxxx Xxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
W9/WHSHC, L.L.C. I
By: Whitehall Street Real Estate
Limited Partnership IX
By: WH Advisors, L.L.C. IX,
general partner
By: /s/ Xxxx Xxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
