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EXHIBIT 10.15
REGISTRATION RIGHTS AGREEMENT
dated as of September 30, 1996
between
WYNDHAM HOTEL CORPORATION
and
XXXXX XXXXXX INC.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made and
entered into as of September 30, 1996, by and between Wyndham Hotel
Corporation, a Delaware corporation (the "Company"), and Xxxxx Xxxxxx Inc., a
______________________ corporation or its affiliates ("Xxxxx Xxxxxx").
RECITALS
Xxxxx Xxxxxx is entering into certain loan transactions which
contemplate, among other things, the pledge of shares of common stock of the
Company and the execution and delivery of this Agreement by the parties hereto.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, 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
(except in the case of phrases set forth below without initial capital
letters):
Advice: As defined in Section 4 hereof.
Affiliate: With respect to any person or entity, any other
person or entity controlling, controlled by or under common control with, the
first person or entity. For purposes of this Agreement, the term "control"
(and correlative terms) means the power, whether by contract, equity ownership
or otherwise, to direct the policies or management of a person or entity.
Common Stock: The Common Stock, par value $0.01 per share, of
the Company.
Demand Notice: As defined in Section 2 hereof.
Demand Registration: As defined in Section 2 hereof.
Formation Registration Rights: The rights to require the
Company to register shares of Common Stock pursuant to the Registration Rights
Agreement dated as of May 24, 1996 among the Company and the other parties
listed on the signature pages thereof.
GE Registration Rights: The rights to require the Company to
register shares of Common Stock pursuant to the Registration Rights Agreement
dated as of April 29, 1996 among Wyndham Hotel Company Ltd., General Electric
Investment Corporation and the Trustees of General Electric Pension Trust.
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A holder of Registrable Securities: Xxxxx Xxxxxx or one of
its Affiliates that holds Registrable Securities.
Losses: As defined in Section 6 hereof.
Piggyback Registration: As defined in Section 3 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: Each of the Shares acquired by Xxxxx
Xxxxxx, together with each of the shares of Common Stock held by Piggyback
Holders (as hereinafter defined), until (i) it is effectively registered under
the Securities Act and disposed of in accordance with the Registration
Statement covering it, (ii) it is saleable by the holder thereof pursuant to
Rule 144(k), or (iii) it is distributed to the public by the holder thereof
pursuant to Rule 144.
Registration Expenses: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company 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.
Rule 144: Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended.
Shares: All shares of Common Stock pledged to secure loans
made on or about July ___, 1996 by Xxxxx Xxxxxx or one or more of its
Affiliates to any of Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxx, Xx.
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Special Counsel: As defined in Section 5(b) hereof.
An underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Demand Registration. (a) Request for Registration. At any
time following the date (i) the closing price of the Common Stock of the
Company, as reported on the New York Stock Exchange or such other exchange or
public market on which the Common Stock is traded, is less than $14 per share
or (ii) any of Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxx fails
to promptly meet a margin call, as provided in those certain Pledge Agreements
executed by each of the aforementioned individuals and Xxxxx Xxxxxx, Xxxxx
Xxxxxx will have the right, by written notice delivered to the Company (a
"Demand Notice"), to demand that the Shares that it may acquire in accordance
with the terms of such Pledge Agreements be registered by the Company (a
"Demand Registration") under and in accordance with the provisions of the
Securities Act; provided, however, that the Company shall not be required to
effect more than three Demand Registrations pursuant to this Agreement.
(b) Filing and Effectiveness. In the event that Xxxxx
Xxxxxx or one or more of its affiliates acquires Shares covered by a Demand
Notice, then the Company will file a Registration Statement relating to any
such Demand Registration within 20 business days of the date on which the
Demand Notice relating to the Shares covered thereby is given and will use all
reasonable efforts to cause the same to be declared effective by the SEC within
120 calendar days of the date on which Xxxxx Xxxxxx first gives the Demand
Notice required by Section 2(a) hereof with respect to such Demand
Registration.
All requests made pursuant to this Section 2 will specify the number
of Registrable Securities to be registered and will also specify the intended
methods of disposition thereof.
If any Demand Registration is requested to be effected as a "shelf"
registration, the Company will keep the Registration Statement filed in respect
thereof effective until the applicable Rule 144 holding period for the Shares
owned by Xxxxx Xxxxxx expires or such shorter period that will terminate when
all of the Shares owned by Xxxxx Xxxxxx that are covered by such Registration
Statement have been sold pursuant to such Registration Statement.
Notwithstanding anything contained herein, upon the later of the repayment of
the loans made by Xxxxx Xxxxxx referred to herein or the sale of all shares
owned by Xxxxx Xxxxxx covered by a Registration Statement, this Agreement shall
terminate.
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The Company will include in such registration all Registrable
Securities with respect to which the Company receives a written request for
inclusion therein within 20 business days after the receipt of the Notice by
the applicable holder.
3. Piggyback Registration. (a) Right to Piggyback. If at any
time the Company proposes to file a Registration Statement relating to a Demand
Registration, then the Company will give written notice of such proposed filing
to each of CF Securities, L.P., Wynopt Investment Partnership Level II, L.P.,
Wynopt Investment Partnership, L.P., Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxxx and
Xxxxxxxx X. Xxxx (hereinafter collectively referred to as the "Piggyback
Holders") at least 10 business days before the anticipated filing date. Such
notice will offer such Piggyback Holders the opportunity to register such
amount of Registrable Securities as each such holder may request (a "Piggyback
Registration"). Subject to Section 3(b) hereof, the Company will include in
each such Piggyback Registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein. The
Piggyback 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
will cause the managing underwriter or underwriters of a proposed underwritten
offering to permit the Piggyback Holders to include therein all such
Registrable Securities requested to be so included on the same terms and
conditions as any securities relating to the Demand Registration.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such offering deliver an opinion to the Piggyback Holders to the effect that
the total amount of securities proposed to be included in such 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 the Piggyback
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
Registrable 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.
4. Restrictions on Sale. Each holder of Registrable Securities
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
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constitutes Registrable Securities, not to effect any public sale or
distribution of any of the Company's securities of such class (except as part
of such underwritten offering), including a sale pursuant to Rule 144, during
the 10-calendar day period prior to, and during the 90-calendar day period
beginning on, the closing date of such underwritten offering.
5. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 2 hereof, the Company 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 will as expeditiously as possible, 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 will furnish to the
holders of the Registrable Securities covered by such Registration Statement,
the 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, the Special Counsel and such underwriters, and the Company
will not file any such Registration Statement or amendment thereto or any
Prospectus or any supplement thereto (including such documents which, upon
filing, would or would be incorporated or deemed to be incorporated by
reference therein) to which the holders of a majority of the Registrable
Securities covered by such Registration Statement, the Special Counsel 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
period specified in Section 2; 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 to such Prospectus as so supplemented.
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(c) Notify the selling holders of Registrable Securities,
the Special Counsel 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 4(n) hereof (including any
underwriting agreement) cease to be true and correct, (v) of the receipt by the
Company 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 documents 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 is necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (vii) of the Company'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
the holders of 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 holder 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-
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effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; provided, however, that the Company will not be
required to take any actions under this Section 4(e) that are not, in the
opinion of counsel for the Company, in compliance with applicable law.
(f) Furnish to each selling holder of Registrable
Securities, the Special Counsel 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 of Registrable
Securities, the Special Counsel 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 hereby consents
to the use of such Prospectus or each amendment or supplement thereto by each
of the selling holders or Registrable Securities 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 of
Registrable Securities, 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 each such registration or qualification (or
exemption therefrom) effective during the period such 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 such jurisdiction of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that the Company will not be required to (i) qualify to do business in any
jurisdiction in which it is not then so qualified or (ii) take any action that
would subject it to general service of process in any such jurisdiction in
which it is not then so subject.
(i) Cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing
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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 such selling holder's business, in which case the Company 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 4(c)(vi) or 4(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) 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
are then listed or, if no similar securities issued by the Company 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; in each case, if requested by the holders of a majority of the
Registrable Securities covered by such Registration Statement or the managing
underwriters, if any.
(m) Prior to the effective date of any Demand
Registration, (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 agreements (including, in the event
of an underwritten offering, an underwriting agreement in form,
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scope and substance as is customary in underwritten offerings) and take all
such other actions in connection therewith (including those requested by the
holders of a majority of the Registrable Securities being sold or,in the event
of an underwritten offering, those 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 of such Registrable
Securities and the underwriters, if any, with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, 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 updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the holders
of a majority of the Registrable Securities being sold) addressed to such
selling holder of Registrable Securities 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 4(n)(i) hereof; (iii) use its best efforts to obtain "comfort" letters
and updates thereof from the independent certified public accountants of the
Company (and, if necessary, any other certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed to each selling holder of Registrable
Securities 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 requested by the holders of a
majority of the Registrable Securities being sold, the Special Counsel and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its 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. 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 inspection by a representative of
the holders of Registrable Securities being sold, any underwriter participating
in any disposition of Registrable Securities, and any attorney or accountant
retained by such selling holders or
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underwriter, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the officers,
directors and employees of the Company and its 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 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 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 its 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, and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company, after the
effective date of a Registration Statement, which statements shall cover said
12-month period.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company
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 of Registrable Securities will be deemed to have agreed by
virtue of its acquisition of such Registrable Securities that, upon receipt of
any notice from the Company of the occurrence of any event of the kind
described in Section 4(c)(ii), 4(c)(iii), 4(c)(v), 4(c)(vi) or 4(c)(vii)
hereof, such holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(k) hereof, or until it is advised in
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writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference in such
Prospectus.
6. Registration Expenses. (a) All fees and expenses incident to
the performance of or compliance with this Agreement by the Company will, as
between the Company and each holder of Registrable Securities, be borne by the
Company 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 (x) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with securities or "blue sky"
laws (including without limitation fees and disbursements of counsel for the
underwriters or selling holders in connection with "blue sky" qualifications of
the Registrable Securities and determination of the eligibility of the
Registrable Securities for investment under the laws of such jurisdictions as
the managing underwriters, if any, or holders of a majority of the Registrable
Securities being sold may designate)), (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 prospectuses if the printing of prospectuses is requested by the
holders of a majority of the Registrable Securities included in any
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Company and the Special Counsel for
the sellers of the Registrable Securities, (v) fees and disbursements of all
independent certified public accountants referred to in Section 4(n)(iii)
hereof (including the expenses of any special audit and "comfort" letters
required by or incident to such performance), (vi) any fees and expenses of any
"qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule E to the By-laws
of the National Association of Securities Dealers, Inc., (vii) Securities Act
liability insurance if the Company so desires such insurance, and (viii) fees
and expenses of all other persons retained by the Company. In addition, the
Company will pay its internal expenses (including without limitation all
salaries and expenses of its 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. In no event, however, will the Company be responsible
for any underwriting discount or selling commission with respect to any sale of
Registrable Securities pursuant to this Agreement.
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(b) In connection with any Demand Registration hereunder,
the Company will reimburse the holders of the Registrable Securities being
registered in such registration for the reasonable fees and disbursements of
not more than one counsel (the "Special Counsel"), together with appropriate
local counsel, chosen by the holders of a majority of the Registrable
Securities being registered.
7. Indemnification. (a) Indemnification by the Company. The
Company will, without limitation as to time, indemnify and hold harmless, to
the fullest extent permitted by law, each holder of Registrable Securities
registered pursuant to this Agreement, the officers, directors and agents and
employees of each of them, each person who controls such 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 by such holder expressly for use therein;
provided, however, that the Company will not be liable to any holder of
Registrable Securities 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 preliminary prospectus if either (A) (i) such
holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such holder of a Registrable
Security to the person asserting the claim from which such Losses arise and
(ii) the Prospectus would have completely corrected such untrue statement or
alleged untrue statement or such omission or alleged omission; or (B) such
untrue statement or alleged untrue statement, omission or alleged omission is
completely corrected in an amendment or supplement to the Prospectus previously
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, 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 of Registrable Securities.
In connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities will furnish
to the Company in writing
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such information as the Company reasonably requests for use in connection with
any Registration statement or Prospectus and will indemnify, to the fullest
extent permitted by law, the Company, its directors and officers, agents and
employees, each person who controls the Company (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 expressly for use in such Registration statement
or Prospectus and was relied upon by the Company in the preparation of such
Registration Statement, Prospectus or preliminary prospectus. In no event will
the liability of any selling holder of Registrable Securities 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 6, 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
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litigation for which such indemnified party would be entitled to
indemnification hereunder.
(d) Contribution. If the indemnification provided for in
this Section 6 is unavailable to an indemnified party under Section 6(a) or
6(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, jointly and severally, 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, statement
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 6(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 provision of this Section 6(d), an indemnifying
party that is a selling holder of Registrable Securities 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 exceed 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 hereunder will be in addition to any liability the Company may
otherwise have hereunder or otherwise. The provisions of this Section 6 will
survive so long as
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Registrable Securities remain outstanding, notwithstanding any transfer of the
Registrable Securities by any holder thereof or any termination of this
Agreement.
8. Rule 144. The Company will file the reports required to be
filed by it under the Securities Act and the Exchange Act, and will cooperate
with any holder of Registrable Securities (including without limitation by
making such representations as any such holder may reasonably request), all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemptions provided by Rule 144. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 7 will be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
9. Underwritten Registrations. If any of the Registrable
Securities covered by any Demand Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the holders of a majority of
the Registrable Securities included in the Demand Notice; provided, that such
investment banker or manager shall be reasonably satisfactory to the Company.
10. Miscellaneous. (a) Remedies. In the event of a breach by
the Company of its obligations under this Agreement, each holder of Registrable
Securities, 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 agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further agrees
that, in the event of any action for specific performance in respect of such
breach, it will waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not, as
of the date hereof, and will not, on or after the date hereof, enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The parties to this Agreement, however,
acknowledge the existence of the Formation Registration Rights and the GE
Registration Rights.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to
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departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of the holders of 90% of the then-outstanding
Registrable Securities.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing and will be deemed
given (i) when made, if made by hand delivery, (ii) upon confirmation, if made
by telecopier, or (iii) one business day after being deposited with a reputable
next-day courier, to the parties as follows:
(x) if to the Company, initially at 0000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Telecopier Number (000) 000-0000
Attention: General Counsel, and thereafter at such other address, notice of
which is given to the holders of Registrable Securities in accordance with the
provisions of this Section 11(d); and
(y) if to any holder of Registrable Securities,
at the most current address given by such holder to the Company in accordance
with the provisions of this Section 9(d).
(e) Owner of Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to maintain, a stock
book with respect to the Common Stock, in which all transfers of Registrable
Securities of which the Company has received notice will be recorded. The
Company may deem and treat the person in whose name Registrable Securities are
registered in the stock book of the Company as the owner thereof for all
purposes, including without limitation the giving of notices under this
Agreement.
(f) Successors and Assigns. This Agreement will inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, provided, however, that the benefits of this Agreement may be assigned
by Xxxxx Xxxxxx only to one or more of its Affiliates that holds Registrable
Securities. Notwithstanding the foregoing, no transferee will have any of the
rights granted under this Agreement (i) until such transferee shall have
acknowledged its rights and obligations hereunder by a signed written statement
of such transferee's acceptance of such rights and obligations or (ii) if the
transferor notifies the Company in writing on or prior to such transfer that
the transferee shall not have such rights.
(g) 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.
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18
(h) Headings. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF TEXAS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(j) 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.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the registration rights granted by the Company
with respect to the Registrable Securities. This Agreement supersedes all
prior agreements and understandings among the parties with respect to such
registration rights.
(l) 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, as determined by the
court, will be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WYNDHAM HOTEL CORPORATION
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------------
Title: President
---------------------------------
XXXXX XXXXXX INC.
By: /s/ XXXXX X. KORAHIS
------------------------------------
Name: Xxxxx X. Korahis
----------------------------------
Title: Senior Vice President
---------------------------------
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CONSENT
Pursuant to the provisions of the Registration Rights Agreement dated
as of May 24, 1996 among the Company and the other parties listed on the
signature pages thereof, the undersigned hereby consent to the granting of the
registration rights provided for by this Agreement; provided, that it shall be
understood that such consent is given in consideration of the grant herein to
CF Securities, L.P., Wynopt Investment Partnership Level II, L.P., Wynopt
Investment Partnership, L.P., Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxxx and Xxxxxxxx
X. Xxxx of certain piggyback registration rights.
/s/ XXXXX X. XXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxx
THE XXXXXXXX DESCENDANTS TRUST
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Special Trustee
/s/ XXXXXX X. XXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxx
THE BROOKE XXXXXX XXXXXXX TRUST
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Special Trustee
THE XXXXXXX XXXXXXXX XXXXXXXXX TRUST
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Special Trustee
21
THE XXXX XXXXXXX XXXXXXX TRUST
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Special Trustee
THE XXXXX XXXXXXXXX XXXXXXXXX TRUST
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Special Trustee
/s/ XXXX X. XXXXXXX
-----------------------------------
Xxxx X. Xxxxxxx
/s/ XXXXXXX X. XXXXXX, XX.
-----------------------------------
Xxxxxxx X. Xxxxxx, Xx.
WYNDHAM EMPLOYEES LTD.
By: Wyndham Hotel Management
Corporation, General
Partner
By: /s/ XXXXX X. XXXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
WYNDHAM HOTEL MANAGEMENT
CORPORATION
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
22
/s/ XXXXXXX X. XXXX
-----------------------------------
Xxxxxxxx X. Xxxx
CF SECURITIES, L.P.
By: Mill Spring Holdings, Inc.,
General Partner
By: /s/ XXXXX X. XXXXXXXXXX
---------------------------
Name: Xxxxx X. Xxxxxxxxxx
-------------------------
Title: Vice President
------------------------
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: /s/ XXXXXX X. XXXXXX
----------------------
Name:
--------------------
Title:
-------------------
WYNOPT INVESTMENT PARTNERSHIP, L.P.
By: Wynopt Investment GenPar,
Inc., General Partner
By: /s/ XXXXXX X. XXXXXX
---------------------------
Name:
-------------------------
Title:
------------------------
/s/ XXXXX X. XXXXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxxxx
