EXHIBIT 10.25
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of ___________, 1998, by and between Patriot American Hospitality, Inc.,
a Delaware corporation ("Patriot"), Wyndham International, Inc., a Delaware
corporation ("Wyndham"), and each of the other parties signatory hereto.
RECITALS
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WHEREAS, pursuant to an Agreement and Plan of Merger dated as of December
2, 1997 by and among Patriot, Wyndham and Interstate Hotels Company, a
Pennsylvania corporation (the "Company")(the "Merger Agreement"), the
individuals and entities listed on Schedule A hereto (the "Family Holders") and
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the entities listed on Schedule B hereto (the "Blackstone Holder") are receiving
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(i) shares of common stock of Patriot, par value $.01 per share (the "Patriot
Common Stock"), and (ii) shares of common stock of Wyndham, par value $.01 per
share (the "Wyndham Common Stock"), which shares of Patriot Common Stock and
Wyndham Common Stock are paired and transferable and tradeable only in
combination as a single unit on the New York Stock Exchange (the "Paired
Shares"); and
WHEREAS, the execution and delivery of this agreement by the parties hereto
is a condition to the closing of the transactions contemplated by the Merger
Agreement.
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
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the following meanings when used herein with initial capital letters:
Advice: As defined in Section 6 hereof.
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Blackstone Holder: As defined in the first recital.
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Demand Notice: As defined in Section 3 hereof.
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Demand Registration: As defined in Section 3 hereof.
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Family Holder: As defined in the first recital.
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Losses: As defined in Section 8 hereof.
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Piggyback Registration: As defined in Section 4 hereof.
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a
Registration Rights Agreement
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 issued to the Holders
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pursuant to the Merger Agreement 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) 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 (y) on account of
Registrable Securities in a recapitalization of or other transaction involving
Patriot and/or Wyndham.
Registration Statement: Any registration statement of Patriot and
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Wyndham 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.
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Securities Act: The Securities Act of 1933, as amended.
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Underwritten Offering: A distribution, registered pursuant to the
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Securities Act, in which securities of Patriot and Wyndham are sold to the
public through one or more underwriters.
2. Shelf Registration of Resales.
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(a) Registration of Resales on Form S-4. Parent and Wyndham shall use
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reasonable efforts to register the Blackstone Holders' or their distributees
offering and resale (in accordance with the intended methods of distribution
heretofore indicated by the Blackstone Holders) of all their Registrable
Securities under the Securities Act on the Form S-4 Registration Statement (the
"Form S-4") to be filed by Parent and Wyndham in connection with their issuance
of Paired Shares pursuant to the Merger Agreement, and shall use reasonable
efforts to file and cause to become effective from and after the Effective Date
(as
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Registration Rights Agreement
defined below) any post-effective amendment to the Form S-4 necessary to effect
such registration of such offering and resale.
(b) Shelf Registration Statement. Patriot and Wyndham shall use all
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reasonable efforts in accordance with the terms hereof to cause a Registration
Statement pursuant to Rule 415 under the Securities Act (a "Shelf Registration
Statement") (which may be the Form S-4) relating to the sale by each of the
Family Holders of their Registrable Securities, if any, to be filed with and
declared effective by the SEC on or before the 90th day following the date on
which the merger contemplated by the Merger Agreement becomes effective (the
"Effective Date").
(c) Conversion of Form S-4. Subject to the other provisions of this
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Agreement, the parties acknowledge that Patriot and Wyndham may, in their sole
discretion, convert the Form S-4 to a Registration Statement on another form
permitted to be used by Patriot and Wyndham for the registration under the
Securities Act of the Blackstone Holders' offering and resale of their
Registrable Securities (in accordance with the intended methods of
distribution); provided, however, that nothing in this Section shall negate
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Patriot's and Wyndham's obligation to file and maintain the effectiveness of the
Registration Statement referred to in Section 2(a). 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.
(d) Maintenance of Effectiveness. Patriot and Wyndham agree to use
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commercially reasonable efforts to keep the Form S-4 and any Shelf Registration
Statement described above (or any amendment thereof or replacement or successor
thereto) continuously effective until the earlier of (a) two (2) years from the
Effective Date or (b) the date on which the applicable Holders (or Distributees
or other Holder Transferees) no longer hold any Registrable Securities. Upon
written request from a Holder during such two-year period, Patriot and Wyndham
shall, subject to the other provisions of this agreement, promptly supplement
the Form S-4 or any Shelf Registration Statement to reflect resales of Paired
Shares by any Distributees or other Holder Transferees that have received their
Paired Shares in accordance with this Agreement and have been identified in
writing to Patriot and Wyndham.
(e) Underwritten Offerings During Pendency of a Shelf Registration
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Statement. At any time and from time to time during the period in which Patriot
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and Wyndham are obligated to use all reasonable efforts to maintain the
effectiveness of the Form S-4 or a Shelf Registration Statement, 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
Patriot and Wyndham of their desire to effect an Underwritten Offering, and
Patriot and Wyndham 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 the applicable Shelf Registration
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Registration Rights Agreement
Statement (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 Patriot
and Wyndham have received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment (or other Registration
Statement); provided, however, that Patriot and Wyndham will not be required to
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take any actions under this paragraph that are not, in the opinion of counsel
for Patriot and Wyndham, in compliance with applicable law. In any such
Underwritten Offering or in any offering which may not be underwritten, Patriot
and Wyndham 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.
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(a) Requests for Registration. At any time and from time to time
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after the period during which Patriot and Wyndham are obligated to use all
reasonable efforts to maintain the effectiveness of the Form S-4 or a Shelf
Registration Statement, 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 Patriot
(a "Demand Notice"), to require Patriot and Wyndham 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
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may be required unless the Holder or Holders requesting such Demand Registration
provide to Patriot and Wyndham a certificate (the "Authorizing Certificate"),
substantially in the form of Exhibit A hereto, that is signed by Holders seeking
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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; (ii) no Demand Notice may be
given prior to nine (9) months after the effective date of the immediately
preceding Demand Registration and (iii) no Demand Registration may be requested
so long as a Registration Statement pursuant to Section 2 is effective. 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 that
it is requesting the registration of only those Paired Shares received by such
Holder pursuant to the Merger 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 Patriot's obligations hereunder even if the amount
remaining to be registered has a market value of less than $20,000,000
(calculated as aforesaid).
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Registration Rights Agreement
(b) Filing and Effectiveness. Patriot and Wyndham will file a
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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 pursuant to Rule 415 under the Securities Act
by the Holders demanding such Demand Registration, Patriot and Wyndham 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 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, Patriot
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 Patriot 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 Patriot and Wyndham will promptly amend or, if
applicable, withdraw the related Registration Statement.
(c) Priority on Demand Registration. If Registrable Securities are to
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be registered pursuant to a Demand Registration, Patriot and Wyndham 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
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the Holders of 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. Patriot and Wyndham will be
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entitled to postpone the filing period of any Demand Registration for a
reasonable period of time not in excess of 90 calendar days if Patriot and
Wyndham 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 Patriot and Wyndham or
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would require disclosure of information, the premature disclosure of which could
materially and adversely affect Patriot or Wyndham. If Patriot and Wyndham
postpone the filing of a
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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
Patriot and Wyndham, respectively, in accordance with this Section 3(d).
4. Piggyback Registration.
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(a) Right to Piggyback. If at any time after the period during which
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Patriot and Wyndham are obligated to use all reasonable efforts to maintain the
effectiveness of the Form S-4 or a Shelf Registration Statement, while any
Registrable Securities are outstanding, Patriot and Wyndham 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
Patriot and Wyndham 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 Patriot and/or
Wyndham), whether or not for their own account, Patriot and Wyndham shall give
to Holders holding 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, Patriot and Wyndham will include
in each such Piggyback Registration all Registrable Securities with respect to
which Patriot and Wyndham 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. Patriot and Wyndham will
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cause the managing underwriter or underwriters of a proposed Underwritten
Offering on behalf of Patriot and Wyndham 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 Patriot and Wyndham 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
Patriot and Wyndham 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
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Registrable Securities requested to be included therein
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Registration Rights Agreement
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
Patriot included in such offering.
5. Restrictions on Sale by Holders. Each Holder agrees, if such Holder is
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so requested (pursuant to a timely written notice) by the managing underwriter
or underwriters in an Underwritten Offering, not to effect any public sale or
distribution of any of Patriot's and Wyndham'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 Patriot's and Wyndham's
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registration obligations pursuant to Sections 2, 3 and 4 hereof, Patriot and
Wyndham 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 Patriot and Wyndham 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
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Statement or Prospectus or any amendments or supplements thereto (including
documents that would be incorporated or deemed to be incorporated therein by
reference) Patriot and Wyndham 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 Patriot
and Wyndham 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 Statement continuously effective for the applicable periods
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
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Registration Rights Agreement
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 Patriot 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 Patriot and
Wyndham 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 Patriot's and Wyndham'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 Patriot and Wyndham have received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that Patriot and Wyndham will not be required to
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take any actions under
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Registration Rights Agreement
this Section 6(e) that are not, in the opinion of counsel for Patriot and
Wyndham, 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 Patriot and Wyndham
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 Patriot and
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Wyndham 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 Patriot and Wyndham 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
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Registration Rights Agreement
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 Patriot and Wyndham are then listed
or, if no similar securities issued by Patriot and Wyndham 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
Patriot and Wyndham 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
Patriot and Wyndham 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
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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 Patriot and Wyndham
(and, if necessary, any other certified public accountants of any subsidiary of
Patriot or Wyndham or of any business acquired by Patriot or Wyndham 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 Patriot and Wyndham
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 Patriot or Wyndham. 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 Patriot and Wyndham and their subsidiaries, and cause the
officers, directors and employees of Patriot and Wyndham 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 Patriot or Wyndham 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
11
Registration Rights Agreement
Patriot and Wyndham, 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.
Patriot and Wyndham may require each seller of Registrable Securities as to
which any registration is being effected to furnish to Patriot and Wyndham such
information regarding the distribution of such Registrable Securities as Patriot
and Wyndham may, from time to time, reasonably request in writing and Patriot
and Wyndham 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 Patriot and Wyndham
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 Patriot and Wyndham 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 Patriot and
Wyndham are entitled to give hereunder; provided, however, 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
Wyndham 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 Patriot and Wyndham will be
borne by Patriot and Wyndham 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 Patriot and
12
Registration Rights Agreement
Wyndham, (iv) fees and disbursements of counsel for Patriot and Wyndham incurred
by Patriot and Wyndham, (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 Patriot and Wyndham, (vi) Securities Act liability
insurance if Patriot or Wyndham so desires such insurance, and (vii) fees and
expenses of all other persons retained by Patriot or Wyndham. In addition,
Patriot and Wyndham 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
Patriot are then listed and the fees and expenses of any person, including
special experts, retained by Patriot or Wyndham. In no event, however, will
Patriot or Wyndham 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 Patriot. Patriot and Wyndham 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 Patriot and
Wyndham by such Holder expressly for use therein; provided, however, that
-------- -------
Patriot and Wyndham 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 Patriot and Wyndham with copies of the
13
Registration Rights Agreement
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
Patriot and Wyndham in writing such information as Patriot and Wyndham
reasonably request for use in connection with any Registration Statement,
Prospectus or preliminary prospectus and will indemnify, to the fullest extent
permitted by law, Patriot and Wyndham, their respective directors and officers,
agents and employees, each person who controls Patriot and Wyndham (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 Patriot and Wyndham expressly for use in such Registration
Statement, Prospectus or preliminary prospectus and was relied upon by Patriot
and Wyndham 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.
14
Registration Rights Agreement
(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
Patriot and Wyndham hereunder will be in addition to any liability Patriot or
Wyndham 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 a Shelf Registration Statement or included in 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 Patriot and Wyndham will have reasonable
--------
rights of substitution with respect to such Holders' choice of such investment
banker or manager based on Patriot's and Wyndham's established relationships
with certain
15
Registration Rights Agreement
financial institutions. If any Piggyback Registration is an Underwritten
Offering, Patriot and Wyndham 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 Patriot and Wyndham 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.
Patriot and Wyndham 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
Patriot and Wyndham, and Holders holding in excess of 50% of the Registrable
Securities in respect of which Registrable Securities are issuable.
(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 Patriot and Wyndham 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 Patriot: Patriot American Hospitality, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
16
Registration Rights Agreement
and Wyndham Wyndham International, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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 Patriot and Wyndham. This
Agreement may not be assigned by any Holder, except to a direct or indirect
partner or shareholder of such Holder which is an accredited investor (a
"Distributee"), unless (other than with respect to Distributees) the proposed
transferee or assignee of such Holder (a "Holder Transferee") agrees in a
writing reasonably acceptable to Patriot and Wyndham to be bound by the terms of
this Agreement, and with regard to a Holder Transferee receiving Registrable
Securities held by a Family Holder, executes any and all documents reasonably
requested by Patriot and Wyndham to bind such Holder Transferee to the terms of
that certain Shareholders Agreement dated as of December 2, 1997, by and among
Patriot, Wyndham and the shareholders of Patriot named on the signature page
thereto. 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 Patriot and Wyndham 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
Registration Rights Agreement
(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, but not limited to, (i) the Registration Rights and
Shareholders Agreement, dated as of June 25, 1996, among the Company and the
shareholders named therein, and (ii) the Stockholders Agreement, dated as of
June 25, 1996, among the stockholders named therein and the Company.
(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]
18
Registration Rights Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PATRIOT AMERICAN HOSPITALITY, INC.
__________________________________
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
__________________________________
Name:
Title:
19
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
FAMILY HOLDER SIGNATURE PAGE
ADDRESS:
_________________________________
Xxxxxx Xxxx
ADDRESS: Xxxxxx Xxxx, Trustee
U/A dated 11/11/94
FBO Xxxxxx Xxxx
By: _____________________________
Name:
Title:
ADDRESS: Xxxxxx Xxxx, Trustee under
The Xxxxxx Xxxx 1997
Charitable Remainder Unitrust
By: _____________________________
Name:
Title:
20
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
FAMILY HOLDER SIGNATURE PAGE
ADDRESS: Xxxxx X. Fine, Trustee
U/A dated 12/15/89
FBO Xxxxx Fine Xxxx
By: ________________________________
Name:
Title:
ADDRESS: Xxxxx X. Fine, Trustee
U/A dated 12/15/89
FBO Xxxxxxx Fine Xxxxxxxx
By: _________________________________
Name:
Title:
ADDRESS: Xxxxx X. Fine, Trustee
U/A dated 12/15/89
FBO Xxxxx X. Fine
By: _________________________________
Name:
Title:
21
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
FAMILY HOLDER SIGNATURE PAGE
ADDRESS: Xxxxx X. Fine, Trustee
For the Xxxxxx Xxxx Grantor
Annuity Trust U/A dated 3/31/96
By: _____________________________
Name:
Title:
22
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
BLACKSTONE HOLDER SIGNATURE PAGE
BLACKSTONE REAL ESTATE
PARTNERS II L.P.
By: Blackstone Real Estate Associates L.P.,
general partner
By: BREA L.L.C., general partner
By:_________________________
Name:
Title:
BLACKSTONE REAL ESTATE
PARTNERS IV L.P.
By: Blackstone Real Estate Associates L.P.,
general partner
By: BREA L.L.C., general partner
By:_________________________
Name:
Title:
BLACKSTONE RE CAPITAL
PARTNERS II L.P.
By: Blackstone Real Estate Associates L.P.,
general partner
By: BREA L.L.C., general partner
By:__________________________
Name:
Title:
23
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
BLACKSTONE HOLDER SIGNATURE PAGE
BRE/INTERSTONE L.L.C.
By:___________________________
Name:
Title:
24
Registration Rights Agreement
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 Merger 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]
