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REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
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Dated as of February 18, 1999
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TABLE OF CONTENTS
Page
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Section 1. Definitions.......................................................................2
Section 2. Registration Under the Securities Act.............................................5
(a) Required Registration....................................................6
(b) Incidental Registration..................................................9
(c) Expenses................................................................11
(d) Effective Registration Statement Suspension.............................11
(e) Selection of Underwriters...............................................12
Section 3. Restrictions on Public Sale by Wyndham...........................................12
Section 4. Registration Procedures..........................................................12
Section 5. Indemnification; Contribution....................................................19
(a) Indemnification by Wyndham..............................................19
(b) Indemnification by Holders..............................................20
(c) Conduct of Indemnification Proceedings..................................20
(d) Contribution............................................................21
Section 6. Miscellaneous....................................................................23
(a) Inconsistent Agreements.................................................23
(b) Amendments and Waivers..................................................23
(c) Notices.................................................................23
(d) Successors and Assigns..................................................24
(e) Recapitalizations, Exchanges, etc., Affecting Registrable Securities....25
(f) Counterparts............................................................25
(g) Descriptive Headings, Etc...............................................25
(h) Severability............................................................25
(i) Governing Law...........................................................26
(j) Specific Performance....................................................26
(k) Entire Agreement........................................................26
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of February 18,
1999, by and among Wyndham International, Inc., a Delaware corporation
("Wyndham"), the other Persons (as hereinafter defined) listed on the signature
pages hereof (herein referred to collectively, along with their respective
affiliates and successors who from and after the date hereof acquire or are
otherwise the transferee of any Registrable Securities (as hereinafter defined),
as the "Initial Holders" and individually, as an "Initial Holder") and any other
Person that shall from and after the date hereof acquire or otherwise be the
transferee of any Registrable Securities and who shall be a Permitted Transferee
(as hereinafter defined) of any Initial Holder (herein referred to collectively
as the "Holders" and individually as a "Holder").
WHEREAS, Wyndham and Patriot American Hospitality, Inc. ("Patriot" and,
together with Wyndham, the "Companies"), Wyndham International Operating
Partnership, L.P. and Patriot American Hospitality Partnership, L.P. have
entered into a Securities Purchase Agreement, dated as of February 18, 1999 (the
"Securities Purchase Agreement"), with the Initial Holders, which provides, upon
the terms and subject to the conditions thereof, for the purchase by the Initial
Holders of shares of Wyndham's Series B Convertible Preferred Stock, par value
$0.01 per share (the "Series B Preferred Stock");
WHEREAS, the Series B Preferred Stock will be convertible, upon the terms
and subject to the conditions set forth in the Certificate of Designation
relating thereto, into shares of Class B Common Stock, par value $0.01 per share
(the "Class B Common Stock"), of Wyndham; and
WHEREAS, in the event of any transfer of any shares of Series B Preferred
Stock to any Person other than an Initial Holder, such shares of Series B
Preferred Stock will automatically convert, upon the terms and subject to the
conditions set forth in the Certificate of Designation relating thereto, into
shares of Series A Convertible Preferred Stock, par value $0.01 per share (the
"Series A Preferred Stock"), of Wyndham;
WHEREAS, the Series A Preferred Stock will be convertible, upon the terms
and subject to the conditions set forth in the Certificate of Designation
relating thereto, into shares of Class A Common Stock, par value $0.01 per share
(the "Class A Common Stock"), of Wyndham;
WHEREAS, in the event of any transfer of any shares of Class B Common Stock
to any Person other than an Initial Holder, such shares of Class B Common Stock
will automatically convert, upon the terms and subject to the conditions set
forth in the Restated Certificate of Incorporation of Wyndham; and
WHEREAS, in order to induce the Initial Holders to complete the
transactions contemplated by the Securities Purchase Agreement, Wyndham has
agreed to provide registration rights on the terms and subject to the conditions
provided herein.
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NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Definitions.
(1) As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
under the Exchange Act.
"Blackout Period" shall have the meaning set forth in Section 2(a)(i).
"Class A Common Stock" shall have the meaning set forth in the preamble;
provided, that if there shall be only one authorized class of Wyndham's common
stock at the time, Class A Common Stock shall be deemed to refer to such common
stock.
"Class B Common Stock" shall have the meaning set forth in the preamble.
"Closing" shall mean the date upon which the purchase and sale of the
Preferred Stock pursuant to the Securities Purchase Agreement occurs.
"Companies" shall have the meaning set forth in the preamble and shall also
include Patriot's and Wyndham's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Holder" shall have the meaning set forth in the preamble.
"Incidental Registration" shall mean a registration required to be effected
by Wyndham pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration statement of
Wyndham, as provided in Section 2(b), which covers any of the Registrable
Securities on an appropriate form in accordance with the Securities Act and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Initial Holder(s)" shall have the meaning set forth in the preamble.
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"Majority Holders" shall mean Holders of the Registrable Securities as to
which registration has been requested representing in the aggregate a majority
of such shares beneficially owned by Holders.
"Market Value" shall mean, with respect to the Series A Preferred Stock or
the Class A Common Stock, the average, rounded to the nearest cent ($0.01), of
the closing price per share of the Series A Preferred Stock or the Class A
Common Stock, respectively, on the New York Stock Exchange for twenty
consecutive calendar days ending on the trading day immediately preceding the
date in question.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Permitted Transferee" shall mean any Person which would be a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act.
"Person" shall mean any individual, limited or general partnership,
corporation, trust, joint venture, association, joint stock company or
unincorporated organization.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities and by all other
amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Registrable Securities" shall mean (i) any shares of Class B Common Stock
issued or issuable upon conversion of any shares of Series B Preferred Stock,
(ii) any shares of Series A Preferred Stock issued or issuable upon conversion
of the shares of Series B Preferred Stock, (iii) any shares of Class A Common
Stock issued or issuable upon conversion of any shares of Series A Preferred
Stock described in clause (ii) above, and (iv) any securities issued or issuable
with respect to any Series A Preferred Stock, Series B Preferred Stock, Class A
Common Stock or Class B Common Stock described in clauses (i), (ii) and (iii)
above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, reorganization
or otherwise.
"Registration Expenses" shall mean (i) all registration, listing,
qualification and filing fees (including NASD filing fees), (ii) fees and
disbursements of counsel for Wyndham, (iii) accounting fees incident to any such
registration, (iv) blue sky fees and expenses (including counsel fees in
connection with the preparation of a Blue Sky Memorandum and legal investment
survey), (v) all expenses of any Persons in preparing or assisting in preparing,
printing, distributing, mailing and delivering any Registration Statement, any
Prospectus, any underwriting agreements, transmittal letters, securities sales
agreements, securities certificates and other documents relating to the
performance of and compliance with this Agreement, (vi) the expenses incurred in
connection with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of Registrable
Securities which are customarily
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borne by the issuer, and (v) all internal expenses of Wyndham (including all
salaries and expenses of officers and employees performing legal or accounting
duties), provided, however, that Registration Expenses shall not include any
Selling Expenses.
"Registration Statement" shall mean any registration statement of Wyndham
which covers any Registrable Securities and all amendments and supplements to
any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Required Registration Statement" shall mean a Registration Statement
pursuant to Section 2(a)(i).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Securities Purchase Agreement" shall have the meaning set forth in the
preamble.
"Selling Expenses" shall mean underwriting discounts, selling commissions
and stock transfer taxes applicable to the shares registered by the Holders,
fees and disbursements of counsel for the Holders retained by them (other than
with respect to the fees and disbursements made in connection with the
preparation of a Blue Sky Memorandum and legal investment survey).
"Series A Preferred Stock" shall have the meaning set forth in the
preamble.
"Series B Preferred Stock" shall have the meaning set forth in the
preamble.
"Shelf Registration" shall mean a registration required to be effected
pursuant to Section 2(a)(ii).
"Shelf Registration Statement" shall mean a Registration Statement pursuant
to Section 2(a)(ii).
"Underwriter" shall have the meaning set forth in Section 5(a).
"Underwritten Offering" shall mean a sale of securities of Wyndham to an
Underwriter or Underwriters for reoffering to the public.
(2) Capitalized terms used herein and not otherwise defined shall have the
meanings assigned such terms in the Securities Purchase Agreement.
Section 2. Registration Under the Securities Act.
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(a) Required Registration.
(1) Right to Require Registration. One or more Holders of Registrable
Securities shall have the right from time to time to request in writing (a
"Request") which Request shall specify the Registrable Securities intended to be
disposed of by such Holders and the intended method of distribution thereof)
that Wyndham register such Holders' Registrable Securities by filing with the
SEC a Required Registration Statement. Upon the receipt of such a Request,
Wyndham will, by the fifth business day thereafter, give written notice of such
requested registration to all Initial Holders of Registrable Securities, and,
not later than the 45th calendar day after the receipt of such a Request by
Wyndham, Wyndham will use all reasonable efforts to cause to be filed with the
SEC a Required Registration Statement covering the Registrable Securities which
Wyndham has been so requested to register by Holders thereof other than the
Initial Holder(s) initiating the Request by written request given to Wyndham
within 9 business days after the giving of such written notice by Wyndham,
providing for the registration under the Securities Act of the Registrable
Securities which Wyndham has been so requested to register by all such Holders,
to the extent necessary to permit the disposition of such Registrable Securities
so to be registered in accordance with the intended methods of distribution
thereof specified in such Request or further requests, and shall use all
reasonable efforts to have such Required Registration Statement declared
effective by the SEC as soon as practicable thereafter and to keep such Required
Registration Statement continuously effective for a period of at least 60
calendar days (or, in the case of an Underwritten Offering, such period as the
Underwriters shall reasonably require) following the date on which such Required
Registration Statement is declared effective (or such shorter period which will
terminate when all of the Registrable Securities covered by such Required
Registration Statement have been sold pursuant thereto), including, if
necessary, by filing with the SEC a post-effective amendment or a supplement to
the Required Registration Statement or the related Prospectus or any document
incorporated therein by reference or by filing any other required document or
otherwise supplementing or amending the Required Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by Wyndham for such Required Registration Statement or by
the Securities Act, the Exchange Act, any state securities or blue sky laws, or
any rules and regulations thereunder.
Wyndham shall not be required to effect, pursuant to this Section 2(a)(i),
(i) a Required Registration hereunder unless Holders beneficially owning
Registrable Securities with an aggregate Market Value of $50 million have
initiated or joined in such Request and (ii) more than eight registrations in
the aggregate requested by the Holders, provided that so long as the Holders
collectively beneficially own Registrable Securities with a Market Value of at
least $100 million, the Holders shall have the right to require Wyndham to
effect additional Required Registrations provided that the Registrable
Securities included therein have an aggregate Market Value of at least $50
million and provided further that any Investor proposing to distribute its
Registrable Securities to its partners or shareholders shall have the right to
require Wyndham to effect an additional Required Registrations to facilitate
such distribution.
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A Request may be withdrawn prior to the filing of the Required Registration
Statement by the Holder(s) which made such Request (a "Withdrawn Request") and a
Required Registration Statement may be withdrawn prior to the effectiveness
thereof by the Holders of a majority of the Registrable Securities included
therein (a "Withdrawn Required Registration"), and, in either such event, such
withdrawal shall be treated as a Required Registration which shall have been
effected pursuant to clause (ii) of the immediately preceding paragraph, except
that the Holders may require Wyndham to disregard one Withdrawn Request for
purposes of such clause (ii).
The Holders shall not, without Wyndham's consent, be entitled to deliver a
Request for a Required Registration after the completion of the Required
Registration if less than 90 calendar days have elapsed since (A) the effective
date of a prior Required Registration Statement, (B) in the case of a Required
Registration which is effected other than by means of an Underwritten Offering,
the date of sale by the Holders of their Registrable Securities pursuant thereto
or (C) the date of withdrawal of a Withdrawn Required Registration.
Notwithstanding the foregoing, from and after the Closing, Wyndham may
delay the filing of a Required Registration Statement if the Board of Directors
of Wyndham determines that such action is in the best interests of Wyndham's
stockholders, and only for an aggregate number of days, taken together with any
Blackout Period invoked pursuant to Section 2(a)(ii), not to exceed 60 days in
any twelve month period (a "Blackout Period").
The registration rights granted pursuant to the provisions of this Section
2(a)(i) shall be in addition to the registration rights granted pursuant to the
other provisions of this Section 2.
(2) Shelf Registration. Promptly upon the Request of the Holders (but
in no event later than the 75th calendar day after the receipt of such a
Request), the Company shall use its reasonable best efforts to promptly process,
file and cause to become effective a Registration Statement on Form S-3 (the
"Shelf") for an offering of Registrable Securities to be made on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (or any similar
rule that may be adopted by the SEC) and permitting sales in ordinary course
brokerage or dealer transactions not involving an Underwritten Offering. Each
Holder which owns, on the date of the initial filing of the Shelf (the "Initial
Filing Date"), Registrable Securities (each such Holder, an "Eligible Holder")
shall have the right to resell such Registrable Securities under the Shelf until
the date that such Eligible Holder sells all of such Registrable Securities,
whether or not under the Shelf (such Eligible Holder's "Termination Date"). The
Company agrees to use its reasonable best efforts to keep the Shelf continuously
effective and usable for resale of Registrable Securities until all Eligible
Holders lose their rights to resell Registrable Securities under the Shelf.
Notwithstanding the foregoing, (A) from the Closing and until the
effectiveness of a Shelf Registration Statement, Wyndham may delay the filing of
a Shelf Registration Statement, or (B) from and after the effectiveness of a
Shelf Registration Statement, each Holder agrees that it will not effect any
sales of the Registrable Securities pursuant to the Shelf Registration, in
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either case, if the Board of Directors of Wyndham determines that such action is
in the best interests of Wyndham's stockholders, and only for a Blackout Period,
taken together with any Blackout Period invoked pursuant to Section 2(a)(i), not
to exceed 60 days.
The registration rights granted pursuant to the provisions of this Section
2(a)(ii) shall be in addition to the registration rights granted pursuant to the
other provisions of this Section 2.
(3) Priority in Required and Shelf Registrations. If a Required or Shelf
Registration pursuant to this Section 2(a) involves an Underwritten Offering,
and the sole Underwriter or the lead managing Underwriter, as the case may be,
of such Underwritten Offering shall advise Wyndham in writing (with a copy to
each Holder requesting registration) on or before the date 5 days prior to the
date then scheduled for such offering that, in its opinion, the amount of
Registrable Securities requested to be included in such Required or Shelf
Registration exceeds the amount which can be sold in such offering without
adversely affecting the distribution of the Registrable Securities being
offered, Wyndham will include in such Required or Shelf Registration only the
amount of Registrable Securities that Wyndham is so advised can be sold in such
offering; provided, however, that Wyndham shall be required to include in such
Required or Shelf Registration: first, all Registrable Securities requested to
be included in the Required or Shelf Registration by the Holders and, to the
extent not all such Registrable Securities can be included in such Required
Registration, the number of Registrable Securities to be included shall be
allocated pro rata on the basis of the number of shares of Preferred Stock or
Common Stock (whichever is applicable) beneficially owned at that time by all
the Holders requesting to participate in the Required or Shelf Registration or
on such other basis as shall be agreed among the Holders, by agreement of the
Majority Holders; and second, if all Registrable Securities requested to be
included in the Required or Shelf Registration by the Holders can be so
included, all other securities requesting, in accordance with any registration
rights which are granted in compliance with Section 6(a), to be included in such
Required Registration which are of the same class as the Registrable Securities
and, to the extent not all such securities can be included in such Required or
Shelf Registration, the number of securities to be included shall be allocated
pro rata among the holders thereof requesting inclusion in such Required or
Shelf Registration on the basis of the number of securities requested to be
included by all such holders.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If at any time Wyndham
proposes to register any of their Preferred Stock or Common Stock under the
Securities Act (other than (A) any registration of public sales or distributions
solely by and for the account of Wyndham of securities issued (x) pursuant to
any employee benefit or similar plan or any dividend reinvestment plan or (y) in
any acquisition by Wyndham, or (B) pursuant to Section 2(a) hereof), either in
connection with a primary offering for cash for the account of Wyndham or a
secondary offering, Wyndham will, each time it intends to effect such a
registration, give written notice to all Initial Holders of Registrable
Securities at least 10 business days prior to the initial filing of a
Registration Statement with the SEC pertaining thereto, informing such Initial
Holders
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of its intent to file such Registration Statement and of the Holders' rights to
request the registration of the Registrable Securities held by the Holders under
this Section 2(b) (the "Company Notice"). Upon the written request of any
Initial Holder made within 7 business days after any such Company Notice is
given (which request shall specify the Registrable Securities intended to be
disposed of by such Initial Holder and such Initial Holder's Permitted
Transferees and, unless the applicable registration is intended to effect a
primary offering of Preferred Stock or Common Stock for cash for the account of
Wyndham, the intended method of distribution thereof), Wyndham will use all
reasonable efforts to effect the registration under the Securities Act of all
Registrable Securities which Wyndham has been so requested to register by such
Initial Holders to the extent required to permit the disposition (in accordance
with the intended methods of distribution thereof or, in the case of a
registration which is intended to effect a primary offering for cash for the
account of Wyndham, in accordance with Wyndham's intended method of
distribution) of the Registrable Securities so requested to be registered,
including, if necessary, by filing with the SEC a post-effective amendment or a
supplement to the Incidental Registration Statement or the related Prospectus or
any document incorporated therein by reference or by filing any other required
document or otherwise supplementing or amending the Incidental Registration
Statement, if required by the rules, regulations or instructions applicable to
the registration form used by Wyndham for such Incidental Registration Statement
or by the Securities Act, any state securities or blue sky laws, or any rules
and regulations thereunder; provided, however, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Incidental Registration Statement filed in connection with
such registration, Wyndham shall determine for any reason not to register or to
delay registration of such securities, Wyndham may, at its election, give
written notice of such determination to each Initial Holder of Registrable
Securities and, thereupon, (A) in the case of a determination not to register,
Wyndham shall be relieved of their obligation to register any Registrable
Securities in connection with such registration (but not from their obligation
to pay the Registration Expenses incurred in connection therewith), and (B) in
the case of a determination to delay such registration, Wyndham shall be
permitted to delay registration of any Registrable Securities requested to be
included in such Incidental Registration Statement for the same period as the
delay in registering such other securities.
The registration rights granted pursuant to the provisions of this Section
2(b) shall be in addition to the registration rights granted pursuant to the
other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration pursuant
to this Section 2(b) involves an Underwritten Offering of the securities so
being registered, whether or not for sale for the account of Wyndham, and the
sole Underwriter or the lead managing Underwriter, as the case may be, of such
Underwritten Offering shall advise Wyndham in writing (with a copy to each
Initial Holder of Registrable Securities requesting registration) on or before
the date 5 days prior to the date then scheduled for such offering that, in its
opinion, the amount of securities (including Registrable Securities) requested
to be included in such registration exceeds the amount which can be sold in (or
during the time of) such offering without adversely affecting the distribution
of the securities being offered, then Wyndham will include in such registration:
first, all the securities entitled to be sold pursuant to such Registration
Statement without reference to the incidental registration rights of any holder
(including the Holders), and
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second, the amount of other securities (including Registrable Securities)
requested to be included in such registration that Wyndham is so advised can be
sold in (or during the time of) such offering, allocated, if necessary, pro rata
among the holders (including the Holders) thereof requesting such registration
on the basis of the number of the securities (including Registrable Securities)
beneficially owned at the time by the holders (including the Holders) requesting
inclusion of their securities; provided, however, that in the event Wyndham will
not, by virtue of this paragraph, include in any such registration all of the
Registrable Securities of any Holder requested to be included in such
registration, such Holder may, upon written notice to Wyndham given within 3
days of the time such Holder first is notified of such matter, reduce the amount
of Registrable Securities it desires to have included in such registration,
whereupon only the Registrable Securities, if any, it desires to have included
will be so included and the Holders not so reducing shall be entitled to a
corresponding increase in the amount of Registrable Securities to be included in
such registration.
(c) Expenses. Wyndham agrees to pay all Registration Expenses in connection
with (i) each of the registrations requested pursuant to Section 2(a) and (ii)
each registration as to which Holders request inclusion of Registrable
Securities pursuant to Section 2(b). All Selling Expenses relating to securities
registered on behalf of the Holders shall be borne by the Holders of shares
included in such registration, other selling stockholders and Wyndham pro rata
on the basis of the number of shares of Preferred Stock or Common Stock so
registered.
(d) Effective Registration Statement; Suspension. Subject to the third
paragraph of Section 2(a)(i), a Registration Statement pursuant to Section 2(a)
will not be deemed to have become effective (and the related registration will
not be deemed to have been effected) unless it has been declared effective by
the SEC prior to a request by the Holders of a majority of the Registrable
Securities included in such registration that such Registration Statement be
withdrawn; provided, however, that if, after it has been declared effective, the
offering of any Registrable Securities pursuant to such Registration Statement
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court shall have been in effect
for at least 30 days, such Registration Statement will be deemed not to have
become effective and the related registration will not be deemed to have been
effected.
(e) Selection of Underwriters. At any time or from time to time, the
Holders of a majority of the Registrable Securities covered by a Required
Registration Statement may elect to have such Registrable Securities sold in an
Underwritten Offering and may select the investment banker or investment bankers
and manager or managers that will serve as lead and co-managing Underwriters
with respect to the offering of such Registrable Securities, subject to the
consent of Wyndham which shall not be unreasonably withheld. No Holder may
participate in any Underwritten Offering hereunder unless such Holder (a) agrees
to sell such Holder's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, custody agreements, indemnities, underwriting agreements and other
documents required under the terms of such Underwritten Offering.
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Section 3. Restrictions on Public Sale by Wyndham.
If requested by the sole Underwriter or lead managing Underwriter(s) in
such Underwritten Offering, Wyndham agrees not to effect any public sale or
distribution (other than public sales or distributions solely by and for the
account of Wyndham of securities issued pursuant to any employee benefit or
similar plan or any dividend reinvestment plan) of any securities during the
period commencing on the date Wyndham receives a Request from any Initial Holder
and continuing until (a) for a Registration Statement relating to such
Underwritten Offering other than a Shelf Registration, 90 days after such
Registration Statement is declared effective by the SEC and (b) for a Shelf
Registration Statement relating to such Underwritten Offering, 90 days after the
commencement of such Underwritten Offering, (or for such shorter period as the
sole or lead managing Underwriter shall request) unless earlier terminated by
the sole Underwriter or lead managing Underwriter(s) in such Underwritten
Offering.
Section 4. Registration Procedures.
In connection with the obligations of Wyndham pursuant to Section 2,
Wyndham shall use all reasonable efforts to effect or cause to be effected the
registration of the Registrable Securities under the Securities Act to permit
the sale of such Registrable Securities by the Holders in accordance with their
intended method or methods of distribution, and Wyndham shall:
(a) (i) prepare and file a Registration Statement with the SEC which (x)
shall be on Form S-3 (or any successor to such form), if available, (y) shall be
available for the sale or exchange of the Registrable Securities in accordance
with the intended method or methods of distribution by the selling Holders
thereof and (z) shall comply as to form with the requirements of the applicable
form and include all financial statements required by the SEC to be filed
therewith and all other information reasonably requested by the lead managing
Underwriter or sole Underwriter, if applicable, to be included therein, (ii) use
all reasonable efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2, (iii) use all reasonable
efforts to not take any action that would cause a Registration Statement to
contain a material misstatement or omission or to be not effective and usable
for resale of Registrable Securities during the period that such Registration
Statement is required to be effective and usable and (iv) cause each
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Registration Statement,
amendment or supplement (x) to comply in all material respects with any
requirements of the Securities Act and the rules and regulations of the SEC and
(y) not to contain any 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 not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and file with the
SEC such amendments and post-effective amendments to each such Registration
Statement, as may be necessary to keep such Registration Statement effective for
the applicable period; cause each such Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented
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to be filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling
Holders thereof, as set forth in such registration statement;
(c) furnish to each Holder of Registrable Securities and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or Underwriter may reasonably request in order to facilitate the
public sale or other disposition of any Registrable Securities; Wyndham hereby
consents to the use of the Prospectus, including each preliminary Prospectus, by
each Holder of Registrable Securities and each Underwriter of an Underwritten
Offering of Registrable Securities, if any, in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or the preliminary
Prospectus (the Holders hereby agreeing not to make a broad public dissemination
of a form of preliminary Prospectus which is designed to be a "quiet filing"
without Wyndham's consent, such consent to not be withheld unreasonably);
(d) (i) use all reasonable efforts to register or qualify the Registrable
Securities, no later than the time the applicable Registration Statement is
declared effective by the SEC, under all applicable state securities or "blue
sky" laws of such jurisdictions as each Underwriter, if any, or any Holder of
Registrable Securities covered by a Registration Statement, shall reasonably
request; (ii) use all reasonable efforts to keep each such registration or
qualification effective during the period such Registration Statement is
required to be kept effective; and (iii) do any and all other acts and things
which may be reasonably necessary or advisable to enable each such Underwriter,
if any, and Holder to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however, that
Wyndham shall not be obligated to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
consent to be subject to general service of process (other than service of
process in connection with such registration or qualification or any sale of
Registrable Securities in connection therewith) in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and, if
requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iii) if, between the
effective date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which Wyndham is a
party, the representations and warranties of Wyndham contained in such agreement
cease to be true and correct in all material respects or if Wyndham receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (iv) of the happening of any event during the
period a Registration Statement is effective as a result of which such
Registration Statement or the related Prospectus contains any untrue statement
of a
11
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for the Holders
of Registrable Securities copies of any request by the SEC or any state
securities authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible time;
(h) upon request, furnish to the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, at least one signed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits; and furnish to
each Holder of Registrable Securities, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested);
(i) cooperate with the selling Holders of Registrable Securities and the
sole Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the governing documents
thereof) and registered in such names as the selling Holders or the sole
Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, may reasonably request at least three business
days prior to any sale of Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph (e)(iv) of
this Section, use all reasonable efforts to prepare a supplement or
post-effective amendment to a Registration Statement or 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, such Prospectus will not contain any 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 the light of the circumstances under which
they were made, not misleading;
(k) enter into customary agreements (including, in the case of an
Underwritten Offering, underwriting agreements in customary form, and including
provisions with respect to indemnification and contribution in customary form
and consistent with the provisions relating to indemnification and contribution
contained herein) and take all other customary and appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
12
(1) make such representations and warranties to the Holders of such
Registrable Securities and the Underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings;
(2) obtain opinions of counsel to Wyndham and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the lead managing Underwriter, if any, and the Majority
Holders of the Registrable Securities being sold) addressed to each selling
Holder and the Underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested by such
Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from Wyndham's
independent certified public accountants addressed to the selling Holders
of Registrable Securities, if permissible, and the Underwriters, if any,
which letters shall be customary in form and shall cover matters of the
type customarily covered in "cold comfort" letters to underwriters in
connection with primary underwritten offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders and
such representative of the selling Holders as the Majority Holders of the
Registrable Securities covered by any Registration Statement relating to
the Registration and providing for, among other things, the appointment of
such representative as agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall be
customary in form, substance and scope and shall contain customary
representations, warranties and covenants; and
(5) deliver such customary documents and certificates as may be
reasonably requested by the Majority Holders of the Registrable Securities
being sold or by the managing Underwriters, if any.
The above shall be done (i) at the effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (ii) at each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(l) make available for inspection by representatives of the Initial Holders
of the Registrable Securities and any Underwriters participating in any
disposition pursuant to a Registration Statement and any counsel or accountant
retained by such Holders or Underwriters, all relevant financial and other
records, pertinent corporate documents and properties of Wyndham and cause the
respective officers, directors and employees of Wyndham to supply all
information reasonably requested by any such representative, Underwriter,
counsel or accountant in connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement
13
to a Prospectus, provide copies of such document to the Initial Holders of
Registrable Securities and to counsel to such Initial Holders and to the
Underwriter or Underwriters of an Underwritten Offering of Registrable
Securities, if any; fairly consider such reasonable changes in any such document
prior to or after the filing thereof as the counsel to the Holders or the
Underwriter or the Underwriters may request and not file any such document in a
form to which the Majority Holders of Registrable Securities being registered or
any Underwriter shall reasonably object; and make such of the representatives of
Wyndham as shall be reasonably requested by the Holders of Registrable
Securities being registered or any Underwriter available for discussion of such
document;
(ii) within a reasonable time prior to the filing of any document
which is to be incorporated by reference into a Registration Statement or a
Prospectus, provide copies of such document to counsel for the Holders; fairly
consider such reasonable changes in such document prior to or after the filing
thereof as counsel for such Holders or such Underwriter shall request; and make
such of the representatives of Wyndham as shall be reasonably requested by such
counsel available for discussion of such document;
(n) cause all Registrable Securities to be qualified for inclusion in or
listed on the New York Stock Exchange or any securities exchange on which
securities of the same class issued by Wyndham is then so qualified or listed if
so requested by the Majority Holders of Registrable Securities covered by a
Registration Statement, or if so requested by the Underwriter or Underwriters of
an Underwritten Offering of Registrable Securities, if any;
(o) otherwise use all reasonable efforts to comply with all applicable
rules and regulations of the SEC, including making available to its security
holders an earnings statement covering at least 12 months which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(p) cooperate and assist in any filings required to be made with the NASD
and in the performance of any due diligence investigation by any Underwriter in
an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution and sale of
any Registrable Securities to be offered pursuant to this Agreement, including
without limitation by making road show presentations, holding meetings with
potential investors and taking such other actions as shall be requested by the
Majority Holders of Registrable Securities covered by a Registration Statement
or the lead managing Underwriter of an Underwritten Offering, in each case
subject to the reasonable availability of Wyndham's executives given their other
duties.
Each selling Holder of Registrable Securities as to which any registration
is being effected pursuant to this Agreement agrees, as a condition to the
registration obligations with respect to such Holder provided herein, to furnish
to Wyndham such information regarding such Holder required to be included in the
Registration Statement, the ownership of Registrable Securities by such Holder
and the proposed distribution by such Holder of such Registrable Securities as
Wyndham may from time to time reasonably request in writing.
14
Each Holder agrees that, upon receipt of any notice from Wyndham of the
happening of any event of the find described in paragraph (e)(iv) of this
Section, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the affected Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus, contemplated by
paragraph (j) of this Section, and, if so directed by Wyndham, such Holder will
deliver to Wyndham (at the expense of Wyndham), all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities which was current at the time of
receipt of such notice.
Section 5. Indemnification; Contribution.
(a) Indemnification by Wyndham. Wyndham agrees, jointly and severally, to
indemnify and hold harmless each Person who participates as an underwriter (any
such Person being an "Underwriter"), each Holder and their respective partners,
directors, officers and employees and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement pursuant to which Registrable Securities were
registered under the Securities Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus,
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any other claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of Wyndham; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel), incurred in investigating, preparing or
defending against any litigation, investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether
or not such Person is a party, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
15
provided, however, that this indemnity agreement does not apply to any Holder or
Underwriter with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, or the omission or
alleged omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to Wyndham by such Holder or Underwriter expressly
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Indemnification by Holders. (i) Each selling Holder severally agrees to
indemnify and hold harmless Wyndham, each Underwriter and the other selling
Holders, and each of their respective partners, directors, officers and
employees (including each officer of Wyndham who signed the Registration
Statement), and each Person, if any, who controls Wyndham, any Underwriter or
any other selling Holder within the meaning of Section 15 of the Securities Act,
against any and all losses, liabilities, claims, damages, judgments and expenses
described in the indemnity contained in paragraph (a) of this Section (provided
that any settlement of the type described therein is effected with the written
consent of such selling Holder), as incurred, but only with respect to untrue
statements or alleged untrue statements of a material fact contained in any
Prospectus or the omissions, or alleged omissions therefrom of a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in any such case made in reliance
upon and in conformity with written information furnished to Wyndham by such
selling Holder expressly for use in such Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified party or
parties shall give reasonably prompt notice to each indemnifying party or
parties of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party or parties shall not relieve it or them from any liability which it or
they may have under this indemnity agreement, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. If
the indemnifying party or parties so elects within a reasonable time after
receipt of such notice, the indemnifying party or parties may assume the defense
of such action or proceeding at such indemnifying party's or parties' expense
with counsel chosen by the indemnifying party or parties and approved by the
indemnified party defendant in such action or proceeding, which approval shall
not be unreasonably withheld; provided, however, that, if such indemnified party
or parties determine in good faith that a conflict of interest exists and that
therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it or them which are different from or in addition
to those available to the indemnifying party, then the indemnifying party or
parties shall not be entitled to assume such defense and the indemnified party
or parties shall be entitled to separate counsel (limited in each jurisdiction
to one counsel for all Underwriters and another counsel for all other
indemnified parties under this Agreement) at the indemnifying party's or
parties' expense. If an indemnifying party or parties is not so entitled to
assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this
16
paragraph, the indemnifying party or parties will pay the reasonable fees and
expenses of counsel for the indemnified party or parties (limited in each
jurisdiction to one counsel for all Underwriters and another counsel for all
other indemnified parties under this Agreement). No indemnifying party or
parties will be liable for any settlement effected without the written consent
of such indemnifying party or parties, which consent shall not be unreasonably
withheld. If an indemnifying party is entitled to assume, and assumes, the
defense of such action or proceeding in accordance with this paragraph, such
indemnifying party or parties shall not, except as otherwise provided in this
subsection (c), be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action or
proceeding.
(d) Contribution. (i) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms in respect of any
losses, liabilities, claims, damages, judgments and expenses suffered by an
indemnified party referred to therein, each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, liabilities,
claims, damages, judgments and expenses in such proportion as is appropriate to
reflect the relative fault of Wyndham on the one hand and of the liable selling
Holders (including, in each case, that of their respective officers, directors,
employees and agents) on the other in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages, judgments
or expenses, as well as any other relevant equitable considerations. The
relative fault of Wyndham on the one hand and of the liable selling Holders
(including, in each case, that of their respective officers, directors,
employees and agents) on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by Wyndham, on the one hand, or by or on behalf of the
selling Holders, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
liabilities, claims, damages, judgments and expenses referred to above shall be
deemed to include, subject to the limitations set forth in paragraph (c) of this
Section, any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim.
(ii) Wyndham and each Holder of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this paragraph (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in
sub-paragraph (i) above. Notwithstanding the provisions of this paragraph (d),
in the case of distributions to the public, an indemnifying Holder shall not be
required to contribute any amount in excess of the amount by which (A) the total
price at which the Registrable Securities sold by such indemnifying Holder and
its affiliated indemnifying Holders and distributed to the public were offered
to the public exceeds (B) the amount of any damages which such indemnifying
Holder 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)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
17
(iii) For purposes of this Section, each Person, if any, who controls a
Holder or an Underwriter within the meaning of Section 15 of the Securities Act
(and their respective partners, directors, officers and employees) shall have
the same rights to contribution as such Holder or Underwriter; and each director
of Wyndham, each officer of Wyndham who signed the Registration Statement, and
each Person, if any, who controls Wyndham within the meaning of Section 15 of
the Securities Act, shall have the same rights to contribution as Wyndham.
Section 6. Miscellaneous.
(a) Inconsistent Agreements. Wyndham is not a party to, and will not on or
after the date of this Agreement enter into, any agreement which conflicts with
the provisions of this Agreement nor has Wyndham entered into any such
agreement, and Wyndham will not on or after the date of this Agreement modify in
any manner adverse to the Holders any such agreement; provided, however, that
nothing in this sentence shall prohibit Wyndham from granting registration
rights, which become exercisable from and after the Closing, to any Person (a
"Third Party") who becomes an owner of shares of any of Wyndham's capital stock
after the date hereof (including granting incidental registration rights with
respect to any Registration Statement required to be filed or maintained
hereunder) if and only if (i) the Third-Party's registration rights (including,
without limitation, demand registration rights) provide to the Holders of
Registrable Securities who seek to participate in such registration (whether or
not such registration is initiated hereunder) rights no less favorable to such
Holders than those rights provided to the Holders hereunder as if such
registration were a Required Registration (including, without limitation, the
priority provisions contained in Section 2(a)(iii)), provided, further, however,
that if such registration is not initiated by the Initial Holders such
registration shall not be deemed one of the eight Required Registrations for
purposes of the limitations contained in the second paragraph of Section
2(a)(i), and (ii) the Third Party is required to enter into the agreements
provided for in Section 3 hereof (as if it were Wyndham) on the terms and for
the period applicable to Wyndham (including preventing sales pursuant to Rule
144 under the Securities Act) if requested by the sole Underwriter or lead
managing Underwriter in an Underwritten Offering initiated by Holders of
Registrable Securities pursuant to Section 2(a). The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of Wyndham's other issued and outstanding
securities under any such agreements.
(b) 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 departures from the provisions hereof may not be given
unless Wyndham has obtained the written consent of a majority of the Holders
and, if any such amendment, modification, supplement, waiver or consent would
adversely affect the rights of any Holder hereunder, the written consent of each
Holder which is affected shall be obtained; provided, however, that nothing
herein shall prohibit any amendment, modification, supplement, waiver or consent
the effect of which is limited only to those Holders who have agreed to such
amendment, modification, supplement, waiver or consent.
18
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, telex, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at the most current
address given by such Holder to Wyndham by means of a notice given in accordance
with the provisions of this paragraph (c), which address initially is, with
respect to each Holder as of the date hereof, the address set forth next to such
Holder's name on the signature pages hereof with a copy to Xxxxxxx X. Xxxx,
Esq., telecopier number (000) 000-0000, and with respect to each Holder who
becomes such after the date hereof, the address of such Holder in the stock
records of Wyndham, (ii) if to Wyndham, at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, telecopier number (000) 000-0000, Attention: General
Counsel, with a copy to Xxxxxxx X. Xxxxx, P.C., telecopier number (617)
523-1231, and thereafter at such other address, notice of which is given in
accordance with the provisions of this paragraph. Notwithstanding the foregoing,
Wyndham shall not be obligated to provide any notice to any Holder which is not
an Initial Holder except with respect to a Required or Incidental Registration
Statement which has been filed and pursuant to which such Holder is identified
as a selling stockholder.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to a courier guaranteeing overnight delivery.
Notwithstanding the foregoing, nothing in this Section 6(c) is intended to
enlarge the class of Persons which are Holders, as defined in the preamble of
this Agreement, and thus entitled to the rights granted hereunder.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without the need for an express assignment, subsequent
Holders. If any successor, assignee or transferee of any Holder shall acquire
Registrable Securities in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and to receive the benefits hereof.
Notwithstanding the foregoing, nothing in this Section 6(d) is intended to
enlarge the class of Persons which are Holders, as defined in the preamble of
this Agreement, and thus entitled to the rights granted hereunder. For purposes
of this Agreement, "successor" for any entity other than a natural person shall
mean a successor to such entity as a result of such entity's merger,
consolidation, liquidation, dissolution, sale of substantially all of its
assets, or similar transaction.
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable Securities.
The provisions of this Agreement shall apply, to the full extent set forth
herein with respect to the Registrable Securities, to any and all securities or
capital stock of Wyndham or any successor or assign of Wyndham (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution of such Registrable Securities,
by reason of any dividend, split, issuance, reverse split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. Upon the
occurrence of any of such events, Preferred Stock and Common Stock amounts
hereunder shall be appropriately adjusted if necessary.
19
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, paragraph and clause references are to the
Articles, Sections, paragraphs and clauses to this Agreement unless otherwise
specified; (4) the word "including" and words of similar import when used in
this Agreement shall mean "including, without limitation," unless otherwise
specified; (5) "or" is not exclusive; and (6) provisions apply to successive
events and transactions.
(h) Severability. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF).
(j) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform in any material
respect any of its obligations hereunder, and accordingly agree that each party,
in addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between Wyndham, on the one hand, and the other
parties to this Agreement, on the other, with respect to such subject matter.
20
* * *
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
WYNDHAM INTERNATIONAL, INC.
By: /s/
-----------------------------------------
Name:
Title:
APOLLO REAL ESTATE INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its General Partner
By: Apollo Real Estate Capital Advisors III,
Inc., its General Partner
Address:
-------
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 By: /s/
-------------------------------------
Attention: Name:
Telecopier Number: Title:
-----------------
(000) 000-0000
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc., its General
Partner
Address:
-------
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 By: /s/
-------------------------------------
Attention: Name:
Telecopier Number: Title:
-----------------
(000) 000-0000
22
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
-------
00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: By: /s/
Telecopier Number: -------------------------------------
----------------- Name:
(000) 000-0000 Title:
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
-------
00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: By: /s/
Telecopier Number: -------------------------------------
----------------- Name:
(000) 000-0000 Title:
XXXXXX X. XXX CHARITABLE INVESTMENT L.P.
Address: By: THL Equity Advisors IV, LLC
-------
00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: By: /s/
Telecopier Number: -------------------------------------
----------------- Name:
(000) 000-0000 Title:
THL-CCI LIMITED PARTNERSHIP
Address: By: THL Equity Advisors IV, LLC
-------
00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: By: /s/
Telecopier Number: -------------------------------------
----------------- Name:
(000) 000-0000 Title:
23
BEACON CAPITAL PARTNERS, L.P.
Address: By: Beacon Capital Partners, Inc., its General
------- Partner
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: By: /s/
Telecopier Number: -------------------------------------
----------------- Name:
(000) 000-0000 Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
Address:
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000 By: /s/
Attention: -----------------------------------------
Telecopier Number: Name:
----------------- Title:
(000) 000-0000
24
