EXHIBIT 4
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WYNDHAM INTERNATIONAL, INC.
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STOCKHOLDERS' AGREEMENT
BY AND AMONG
THE STOCKHOLDERS NAMED
ON THE SIGNATURE PAGES HERETO
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Dated as of June 29, 1999
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TABLE OF CONTENTS
Section Heading Page
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Article 1. Certain Definitions........................................1
Article 2. Board of Directors.........................................7
Section 2.1. Board of Directors................................7
Article 3. Restrictions on Transfer.........................................7
Section 3.1. Restrictions on Transfer..........................8
Section 3.2. Exceptions to Restrictions........................8
Section 3.3. Binding Effect on Transferees.....................9
Section 3.4. Notifications Regarding Transfers.................9
Section 3.5. Restrictions on Conversion........................9
Article 4. Tag-Along Rights; Drag-Along Rights.............................10
Section 4.1. Tag-Along Rights.................................11
Section 4.2. Drag-Along Rights................................11
Article 5. Registration Rights.............................................12
Section 5.1. Registration Rights..............................12
Article 6. Miscellaneous...................................................13
Section 6.1. Further Actions; Cooperation.....................13
Section 6.2. Successors and Assigns...........................13
Section 6.3. Representatives..................................14
Section 6.4. Amendment; Modification; Waiver..................14
Section 6.5. Notices..........................................14
Section 6.6. Entire Agreement: Governing Law..................14
Section 6.7. Injunctive Relief................................15
Section 6.8 Headings.........................................15
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the
mon Stock; New Issuances.........................15
Section 6.10. Counterparts.....................................15
Section 6.11. Jurisdiction; Forum..............................16
Section 6.12. Termination......................................16
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of June 29,
1999, by and among the parties named on the signature pages hereto
(collectively, the "Stockholders") and such other persons that become parties
to this Agreement as described herein.
W I T N E S S E T H:
WHEREAS, pursuant to (i) a Securities Purchase Agreement, dated as of
Febru ary 18, 1999, as amended, by and among Wyndham International, Inc. (the
"Company"), Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International Operating Partner ship, L.P., Patriot American Hospitality
Partnership, L.P. and the persons identified therein as Investors (the
"Original Investors") and (ii) Assignment and Assumption Agreements by and
among the Company, Patriot and the Stockholders, the Stockholders will
purchase shares of Series B Convertible Preferred Stock (the "Shares") of the
Company; and
WHEREAS, the parties hereto deem it in their best interests to enter
into this Agreement in order to govern certain of their rights, duties and
obligations in connection with their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of their securities of
the Company and to provide for certain rights and obligations with respect
thereto as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements and
understand ings set forth herein, the parties hereto hereby agree as follows:
Article 1. Certain Definitions
As used in this Agreement, the following terms shall have the
following respec tive meanings:
"Affiliate" means, as to any Person, (a) any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person, (b) any Person who is a director, officer, partner or principal of
such Person or of any Person which directly or indirectly controls, is
controlled by, or is under common control with such Person, and (c) any
individual who is a member of the immediate family of any Person described in
clause (a) or clause (b) above. For purposes of this definition, "control" of
a Person shall mean the power, direct or indirect, (i) to vote or direct the
voting of 5% or more of the Voting Stock of such Person or (ii) to direct or
cause the direction of the
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management and policies of such Person whether by ownership of Capital Stock,
by contract or otherwise.
"Agreement" means this Agreement as in effect on the date hereof and
as hereafter from time to time amended, modified or supplemented in accordance
with the terms hereof.
"Apollo Investors" means Apollo Real Estate Investment Fund IV, L.P.,
Apollo Investment Fund IV, L.P., Strategic Real Estate Investments I, LLC and
their respective Permitted Assignees and Permitted Third Party Transferees.
"Apollo Stockholder" means, collectively, Apollo Management IV, L.P.
and Apollo Real Estate Management IV, L.P.
"Beacon Affiliate" means any director or officer, or member of the
immediate family of a director or officer, of any entity that is included
within the definition of "Beacon Stockholder" in office at the time of the
relevant determination, and any corporation, partnership, limited liability
company, trust or other entity that is controlled by, or the equity interests
of which are owned by, any of the foregoing individuals.
"Beacon Stockholder" means, collectively, Beacon Capital Partners,
L.P., Beacon Capital Partners, Inc., BCP Voting, Inc., as voting trustee of
the First Beacon Voting Trust, and any other entity that is an Affiliate of
Beacon Capital Partners, L.P. that becomes a trustee of the First Beacon
Voting Trust or the Second Beacon Voting Trust, if formed, and any successors
thereto.
"Beacon Voting Trust" means, collectively, the First Beacon Voting
Trust and the Second Beacon Voting Trust.
"Beacon Voting Trust Agreement" means, collectively, (i) the Voting
Trust Agreement, dated as of June 8, 1999, as amended, by and between Beacon
Capital Partners, L.P., as the initial beneficiary of the First Beacon Voting
Trust, and BCP Voting, Inc, as trustee of the First Beacon Voting Trust, an
accurate copy of which has been provided to the Lead Stockholders, and (ii) if
the Second Beacon Voting Trust is formed, the Voting Trust Agreement to be
entered into by and between Beacon Capital Partners, L.P., as the initial
beneficiary of the Second Beacon Voting Trust, and the trustee of the Second
Beacon Voting Trust; provided, that (x) the proposed form of the Voting Trust
Agreement for the Second Beacon Voting Trust and the proposed form of any
amendment to the Voting Trust Agreement for the First Beacon Voting Trust or
the Second Beacon Voting Trust shall be provided to the Lead Stockholders for
their review at least ten days in advance of the earlier of its execution or
distribution and (y) the Lead Stockholders shall have approved in advance of
the earlier of its execution or distribution any provision of the Second
Beacon Voting Trust or any amendment to the Voting Trust
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Agreement for the First Beacon Voting Trust or the Second Beacon Voting Trust
that alters or is otherwise inconsistent with the definition of "Permitted
Voting Trust Trans fer" contained in this Agreement or any other provision
affecting those matters addressed in this Agreement.
"Board of Directors" means the Board of Directors of the Company as
from time to time hereafter constituted.
"By-Laws" means the By-Laws of the Company in effect on the date
hereof and as hereafter further amended.
"Capital Stock" means and includes (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock of any Person, including, without limitation, shares of
preferred or preference stock, (ii) all partnership interests (whether general
or limited) in any Person which is a partnership, (iii) all membership
interests or limited liability company interests in any limited liability
company and (iv) all equity or ownership interests in any Person of any other
type.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company as in effect on the date hereof and as hereafter amended,
modified, supple mented or restated.
"Class A Common Stock" means the Class A common stock, par value
$0.01 per share, of the Company.
"Class B Common Stock" means the Class B common stock, par value
$0.01 per share, of the Company.
"Common Stock" means the Class A Common Stock and Class B Common
Stock or, if the Company's common stock ceases to be so designated, the common
stock, par value $0.01 per share, of the Company.
"Company" means Wyndham International, Inc., a Delaware corporation,
and any successor thereto.
"Equity Securities" means the Common Stock and Preferred Stock and
any other securities convertible into, exercisable for or exchangeable with
Common Stock or Preferred Stock and other equity security issued by the
Company.
"First Beacon Voting Trust" means the Beacon Capital Partners, L.P.
Voting Trust.
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"Lead Stockholders" means the Apollo Stockholder and the Xxx
Stockholder; provided that if either of the Lead Stockholders and its
respective Affiliates cease to collectively beneficially own at least 10% of
the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchange able or exercisable for shares
of Common Stock) beneficially owned by such Lead Stockholder and its
Affiliates immediately following the closing of the transactions contemplated
by the Securities Purchase Agreement, then such Lead Stockholder shall cease
to be a Lead Stockholder.
"Xxx Director Percentage" means (i) the total number of shares of
Common Stock (including, without duplication, shares of Common Stock issuable
upon conversion of securities convertible, exchangeable or exercisable for
shares of Common Stock) beneficially owned by the Xxx Investors (excluding
open market purchases) divided by (ii) the total number of shares of Common
Stock (including, without duplication, shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares
of Common Stock) beneficially owned by the Apollo Investors and the Xxx
Investors (excluding open market purchases).
"Xxx Investors" means Xxxxxx X. Xxx Equity Fund IV, L.P., Xxxxxx X. Xxx
Foreign Fund IV, L.P., Xxxxxx X. Xxx Charitable Investment L.P., THL-CCI Limited
Partnership, the Beacon Stockholder and their respective Permitted Assignees and
Permitted Third Party Transferees.
"Xxx Stockholder" means THL Equity Advisors IV, LLC, in its capacity as
general partner of Xxxxxx X. Xxx Equity Fund IV, L.P.
"Permitted Assignee" shall have the same meaning as set forth in the
Securities Purchase Agreement.
"Permitted Beacon Voting Trust Transfer" means a transfer of Shares
through a termination of the Beacon Voting Trust on or after the second
anniversary of the date of this Agreement that complies with each of the
following requirements: (i) the termination shall be made pursuant to Section
15(a)(iv) of the Beacon Voting Trust Agreement at the request of beneficiaries
of the Beacon Voting Trust that shall not include the Beacon Stockholder or
any Beacon Affiliate, such termination shall not have been directly or
indirectly proposed, solicited or encouraged by the Beacon Stockholder (other
than the required action as trustee under such Section 15(a)(iv)) or by any
Beacon Affiliate and the Beacon Stockholder and the Beacon Affiliates shall
have used their reasonable efforts to discourage such termination; (ii) the
Shares so transferred shall be converted into shares of Series A Preferred
Stock; (iii) any shares of Series A Preferred Stock to be received in
connection with such termination by the Beacon Stockholder or by any Beacon
Affiliate shall remain subject to the transfer, conversion and other
restrictions of this Agreement and the Beacon Stockholder and any such Beacon
Affiliate shall execute
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any agreement required under Section 3.3 of this Agreement to evidence the
foregoing; (iv) each of the transferees of such Shares shall have acknowledged
in form and sub stance satisfactory to the Lead Stockholders such transferee's
agreement to be bound by Section 5.1(b) of this Agreement; and (v) such
termination and the transfer of Shares made in connection therewith shall be
made in compliance with all applicable law.
"Permitted Third Party Transferee" shall have the same meaning as set
forth in the Securities Purchase Agreement.
"Person" means an individual or a corporation, association,
partnership, limited liability company, joint venture, organization, business,
trust or any other entity or organization, including a government or any
subdivision or agency thereof.
"Preferred Stock" means the Series A Preferred Stock and the Series B
Preferred Stock.
"Pro Rata Portion" means, with reference to any Stockholder at any
time, a fraction, the numerator of which is the number of votes represented by
the Shares and the Class B Common Stock then issued and outstanding and held
by such Stockholder, and the denominator of which is the aggregate number of
votes represented by the Shares and the Class B Common Stock then issued and
outstanding and held by the Stockholders taken together.
"Registrable Securities" means (i) any shares of Class B Common Stock
issued or issuable upon conversion of any of the Shares, (ii) any shares of
Series A Preferred Stock issued or issuable upon conversion of the Shares,
(iii) any shares of Class A Common Stock issued or issuable upon conversion of
the 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 Rights Agreement" shall mean the Registration Rights
Agreement, dated as of February 18, 1999, by and among the Company and the
persons listed on the signature pages thereof.
"Restated Certificate of Incorporation" means the Restated
Certificate of Incorpo ration of the Company, as proposed to be filed with the
Secretary of State of the State of Delaware on the date of the Closing under
the Securities Purchase Agreement.
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"Required Investor Director Percentage" means 1.0 divided by the
total number of Class B directors of the Company that may be elected pursuant
to Section V(D) of the Restated Certificate of Incorporation.
"Second Beacon Voting Trust" means, collectively, the Beacon Capital
Partners, L.P. Voting Trust II and the Beacon Capital Partners, L.P. Voting
Trust III, in each case if formed.
"Securities Act" means, as of any date, the Securities Act of 1933,
as amended, or any similar Federal statute then in effect and superseding such
act, and any reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar Federal
statute, and the rules and regulations thereunder.
"Series A Preferred Stock" means the Series A Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Shares" shall have the meaning set forth in the preamble of this
Agreement; provided, however, that unless the context otherwise requires,
references in this Agree ment to the "Shares" shall be deemed to include
additional shares of Series B Preferred Stock that are issued pursuant to the
Certificate of Designation for such Preferred Stock.
"Stockholders" shall mean (i) the Stockholders named on the signature
page hereto and (ii) each Third Party Transferee who becomes a party to or
bound by the provisions of this Agreement in accordance with the terms hereof,
in each case for so long as such person continues to hold Equity Securities in
the Company.
"Third Party Transferee" has the meaning specified in Section 3.2.
"Voting Stock" means Capital Stock of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote in the election of directors (or Persons performing similar functions).
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Article 2. Board of Directors
Section 2.1. Board of Directors. (a) For so long as this Agreement is
in effect, each of the Stockholders shall vote all of the Voting Stock owned
or held of record by such Stockholder so as to elect, and to continue in
office, each of the directors of the Company designated by the Lead
Stockholders. So long as the Stockholders are entitled to elect eight Class B
directors pursuant to the Restated Certificate of Incorporation, the Apollo
Stockholder shall have the right to designate four Class B directors of the
Company and the Xxx Stockholder shall have the right to designate four Class B
directors of the Company. In the event that the number of Class B directors of
the Company that the Stockholders are entitled to elect is reduced to below
eight pursuant to Section V(D) of the Restated Certificate of Incorporation,
(i) the number of Class B directors that the Xxx Stockholder shall be entitled
to designate shall be equal to the Xxx Director Percent age divided by the
Required Investor Director Percentage (rounded up or down to the nearest
integer) and (ii) the number of Class B directors that the Apollo Stockholder
shall be entitled to designate shall be equal to the total number of Class B
directors of the Company that the Stockholders are entitled to elect pursuant
to Section V(D) of the Restated Certificate of Incorporation minus the number
of Class B directors that the Xxx Stockholder is entitled to designate
pursuant to this Section 2.1(a).
(b) If either of the Lead Stockholders shall notify the
other Stockhold ers of its desire to remove, with or without cause, any
director of the Company previously designated by it, each Stockholder shall
vote all of the shares of Voting Stock owned or held by such Stockholder and
take all other necessary actions to cause the removal of any director
designated by such Lead Stockholder pursuant to Section 2.1(a).
(c) In the event that any designee of either Lead
Stockholder shall for any reason cease to serve as a member of the Board of
Directors during his term of office, the resulting vacancy on the Board of
Directors will be filled by a representative desig nated by such Lead
Stockholder.
Article 3. Restrictions on Transfer
Section 3.1. Restrictions on Transfer.
(a) Each Stockholder agrees that for a period of five years following
the date of this Agreement, such Stockholder will not, directly or indirectly,
offer, sell, transfer, assign or otherwise dispose of (or make any exchange,
gift, assignment or pledge of) (collectively, for purposes of Articles 3 and 4
only, a "transfer") any of its Shares, any shares of Common Stock or Preferred
Stock issuable upon conversion of Shares, or options, warrants or rights to
subscribe for or purchase Shares, Preferred Stock or
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Common Stock that may be issued hereafter to such Stockholder, except as
provided in this Article 3. In addition to the other restrictions contained in
this Article 3, each Stockholder agrees that it will not, directly or
indirectly, transfer any of its Shares or any shares of Common Stock or
Preferred Stock issuable upon conversion of Shares except as permitted under
the Securities Act and other applicable securities laws.
(b) Any attempt by any Stockholder to transfer any Shares and any
Common Stock or Preferred Stock issuable upon conversion of the Shares not in
compliance with this Agreement shall be null and void. Without limiting the
foregoing, it is expressly understood and agreed that any transfer of Shares
by the Beacon Voting Trust that is not the Permitted Beacon Voting Trust
Transfer or a transfer otherwise expressly permitted under this Agreement
shall be null and void and not be recorded on the transfer books of the
Company.
Section 3.2. Exceptions to Restrictions. The provisions of
Section 3.1 shall not apply to any of the following transfers:
(a) Any transfer approved by each of the Lead Stockholders.
(b) Any transfer from any Stockholder to one or more of its
respective Permitted Assignees.
(c) Any transfer of Shares, or Common Stock or Preferred Stock
issuable upon conversion of such Shares, in accordance with Article 4 or 5
hereof.
(d) Any bona fide pledge of the Shares, or Common Stock or Preferred
Stock issuable upon conversion of such Shares, to a bank, financial
institution or other lender.
(e) The Permitted Beacon Voting Trust Transfer.
The exceptions in clauses (a), (b) or (d) above are subject to the
condition that each such transferee referred to therein (each a "Third Party
Transferee") execute (or, in the case of clause (d) above, that the pledging
Stockholder use its reasonable efforts to cause the pledgee referred to
therein to execute prior to any foreclosure of the shares so pledged) the
agreement referred to in Section 3.3 hereof. The provisions of this Agree ment
shall be applied to the Shares, including the shares of Common Stock or
Preferred Stock issuable upon conversion of Shares, acquired by any Third
Party Transferee of a Stockholder in the same manner and to the same extent as
such provisions were applica ble to such Shares, or Common Stock or Preferred
Stock issuable upon conversion of Shares, in the hands of such Stockholder.
Any reference in this Agreement to the Stockholders shall be deemed to include
each Stockholder and its respective Third Party Transferees.
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No transfer of any Shares, or shares of Common Stock or Preferred
Stock issuable upon conversion of Shares, to a Third Party Transferee shall be
effective unless such transfer is made (i) pursuant to an effective
registration statement under the Securities Act and is qualified under
applicable state securities or blue sky laws or (ii) without registra tion
under the Securities Act and qualification under applicable state securities
or blue sky laws, as a result of the availability of an exemption from
registration and qualification under such laws, and such Stockholder shall
have furnished to the Lead Stockholders a certificate to that effect;
provided, however, that no such certificate or opinion of counsel shall be
required in connection with a transfer of shares of Common Stock pursuant to
Sections 4.1 or 4.2 hereof.
Section 3.3. Binding Effect on Transferees. The obligations of a
party hereto shall be binding upon any transferee to whom Shares or Common
Stock or Preferred Stock issuable upon conversion of such Shares are
transferred by such party, whether or not such transfer is permitted under the
terms of this Agreement; provided, that the foregoing shall not apply to (a)
transferees (other than the Beacon Affiliates) pursuant to the Permitted
Beacon Voting Trust Transfer, (b) transferees pursuant to transfers permit xxx
under Section 3.2(c) or (c) transferees for which the transfer occurs
following the fifth anniversary of the date of this Agreement (transferees
permitted under clause (a), (b) or (c), collectively, the "Exempted
Transferees") . Prior to consummation of any such transfer other than to an
Exempted Transferee, such party shall cause the transferee to execute an
agreement in form and substance reasonably satisfactory to the Lead Stock
holders, providing that such transferee shall be bound by and shall fully
comply with the terms of this Agreement.
Section 3.4. Notifications Regarding Transfers. To the extent that
any Stock holder proposes a transfer pursuant to Section 3.2, such Stockholder
shall provide notice to the Lead Stockholders at least ten Business Days prior
to the proposed transfer date of the number of Shares proposed to be
transferred. Not less that two Business Days prior to a proposed transfer date
requiring the approval of the Lead Stockholders, the Lead Stockholders shall
notify such Stockholder of whether the transfer has been approved, it being
agreed and understood that the Permitted Beacon Voting Trust Transfer shall
not require such approval.
Section 3.5. Restrictions on Conversion. Each Stockholder understands
and agrees that, for a period of five years following the date of this
Agreement, such Stock holder will not convert any Shares into shares of Common
Stock or Series A Preferred Stock without the consent of each of the Lead
Stockholders, except in connection with (i) an exercise of such Stockholder's
rights under Section 4.1 in connection with a sale of Shares by one of the
Lead Stockholders, (ii) a sale of Registrable Securities pursuant to Section
5.1 or (iii) the Permitted Beacon Voting Trust Transfer or a subsequent conver
sion of shares of Series A Preferred Stock received thereunder (other than by
a Beacon Affiliate).
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Article 4. Tag-Along Rights; Drag-Along Rights
Section 4.1. Tag-Along Rights.
(a) Notwithstanding anything in this Agreement to the contrary,
except in the case of (i) transfers by the Stockholders to a Third Party
Transferee referred to in Section 3.2(b), (c), (d) and (e) hereof, (ii)
transactions where rights are exercised pursuant to Section 4.2 hereof and
(iii) sales pursuant to Article 5 hereof or in connection with a sale pursuant
to Rule 144 under the Securities Act of 1933, each Stockholder shall refrain
from effecting any transfer of Shares, Series A Preferred Stock or Class B
Common Stock unless, prior to the consummation thereof, the other Stockholders
shall have been afforded the opportunity to join in such transfer on a pro
rata basis, as provided in this Section 4.1 (each such Stockholder, a
"Tag-Along Person").
(b) Prior to consummation of such proposed transfer, the Stockholder
proposing a transfer shall cause the person or group that proposes to acquire
such shares (the "Proposed Purchaser") to offer in writing (the "Tag-Along
Offer") to purchase Shares, Series A Preferred Stock or Class B Common Stock
owned by the Tag-Along Person, such that the number of Shares, Series A
Preferred Stock or Class B Common Stock so offered to be purchased from the
Tag-Along Person shall be equal to the product obtained by multiplying the
aggregate number of Shares, Series A Preferred Stock or Class B Common Stock
proposed to be purchased by the Proposed Purchaser by such Tag-Along Person's
Pro Rata Portion. If the Purchase Offer is accepted by any Tag- Along Person,
then the number of Shares, Series A Preferred Stock or Class B Common Stock to
be sold to the Proposed Purchaser by the Stockholder proposing the transfer,
shall be reduced by the aggregate number of Shares, Series A Preferred Stock
or Class B Common Stock to be purchased by the Proposed Purchaser from such
Tag-Along Person pursuant thereto. Such purchase shall be made on the same
terms and conditions (including timing of receipt of consideration) as the
Proposed Purchaser shall have offered to purchase Shares, Series A Preferred
Stock or Class B Common Stock to be sold by the Stockholder who proposed the
transfer (net, in the case of any options, warrants or rights, of any amounts
required to be paid by the holder upon exercise thereof). The Tag-Along Person
shall have 20 days from the date of receipt of the Pur chase Offer during
which to accept such Purchase Offer, and the closing of such purchase shall
occur within 30 days after such acceptance or at such other time as the
Tag-Along Person and the Proposed Purchaser may agree.
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Section 4.2. Drag-Along Rights.
(a) If both of the Lead Stockholders propose a transfer in connection
with a sale or exchange, whether directly or pursuant to a merger,
consolidation or otherwise (a "Drag-Along Sale"), the Lead Stockholders may
require all other Stockholders to sell all Shares proposed to be sold therein
("Drag-Along Rights") then held by every Stock holder, for the same
consideration and otherwise on the same terms and conditions (including timing
of receipt of consideration) as the sale by Lead Stockholders; provided,
however, that if either of the Lead Stockholders and its respective Affiliates
cease to collectively beneficially own at least 20% of the shares of Common
Stock (including shares of Common Stock issuable upon conversion of securities
convertible, exchange able or exercisable for shares of Common Stock)
beneficially owned by them immedi ately following the closing of the
transactions contemplated by the Securities Purchase Agreement, Stockholders
collectively holding more than 50% of the voting power represented by the
outstanding Shares and shares of Class B Common Stock (the "Majority
Stockholders") shall have the ability to exercise the Drag-Along Rights
described in this Section 4.2.
(b) The Lead Stockholders or the Majority Stockholders, as
applicable, shall provide written notice of such Drag-Along Sale to the other
Stockholders (a "Drag-Along Notice") not later than the 15th day prior to the
proposed Drag-Along Sale. The Drag- Along Notice shall identify the
transferee, the number of Shares and/or shares of Class B Common Stock to be
transferred, the consideration for which a transfer is proposed to be made
(the "Drag-Along Sale Price(s)") and all other material terms and conditions
of the Drag-Along Sale. Subject to Section 4.2(d), each Stockholder shall be
required to participate in the Drag-Along Sale on the terms and conditions set
forth in the Drag- Along Notice and to tender all its Shares and shares of
Class B Common Stock as set forth below. The price(s) payable in such transfer
shall be the Drag-Along Sale Price(s). Not later than the 10th day following
the date of the Drag-Along Notice (the "Drag-Along Notice Period"), each of
the Stockholders shall deliver to a representative of Lead Stockholders or the
Majority Stockholders, as applicable, designated in the Drag-Along Notice
certificates representing all the Shares and shares of Class B Common Stock
beneficially owned and held by such Stockholder, duly endorsed, together with
all other documents required to be executed in connection with such Drag-Along
Sale, or if such delivery is not permitted by applicable law, an unconditional
agreement to deliver such shares pursuant to this Section 4.2 at the closing
for such Drag-Along Sale against delivery to such Stockholder of the
consideration therefor.
(c) The Lead Stockholders or the Majority Stockholders, as
applicable, shall have a period of 90 days from the date of receipt of the
Drag-Along Notice to consum mate the Drag-Along Sale on the terms and
conditions set forth in such Drag-Along Sale Notice. If the Drag-Along Sale
shall not have been consummated during such period, the
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Lead Stockholders or the Majority Stockholders, as applicable, shall return to
each of the Stockholders all certificates or other evidence of title and
ownership representing shares that such Stockholders delivered for transfer
pursuant hereto, together with any docu ments in the possession of the Lead
Stockholders or the Majority Stockholders, as applicable, executed by the
other Stockholders in connection with such proposed transfer, and all the
restrictions on transfer contained in this Agreement or otherwise applicable
at such time with respect to shares owned by the Stockholders shall again be
in effect.
(d) Concurrently with the consummation of the transfer of shares
pursuant to this Section 4.2, the Lead Stockholders or the Majority
Stockholders, as applicable, shall give notice thereof to all Stockholders,
shall remit to each of the Stockholders who have surrendered their
certificates or other evidence of title and ownership the total consider ation
(by bank or certified check) for the shares transferred pursuant hereto and
shall furnish such other evidence of the completion and time of completion of
such transfer and the terms thereof as may be reasonably requested by such
Stockholders.
Article 5. Registration Rights
Section 5.1. Registration Rights.
(a) Each of the Stockholders shall be entitled to the benefits of,
and shall be bound by the obligations of, the Registration Rights Agreement
with respect to any Registrable Securities held by such Stockholder as if the
Stockholder were a party to the Registration Rights Agreement; provided,
however, that (i) any request for a Required Registration (as such term is
defined in the Registration Rights Agreement) pursuant to Section 2.1(a) of
the Registration Rights Agreement made on or prior to the third anniversary of
the date of this Agreement shall only be made by or with the consent of both
of the Lead Stockholders, (ii) any request for a Required Registration
pursuant to Section 2.1(a) of the Registration Rights Agreement made during
the period following the third anniversary of the date of this Agreement
through the fifth anniversary of the date of this Agreement shall only be made
by the Apollo Stockholder, the Xxx Stockholder or the Beacon Stockholder and
(iii) any request for a Shelf (as such term is defined in the Registration
Rights Agreement) pursuant to Section 2.1(a) of the Registration Rights
Agreement made on or prior to the fifth anniversary of the date of this
Agreement shall only be made by or with the consent of both of the Lead
Stockholders. Notwithstanding the foregoing, each of the Stockholders shall be
entitled to exercise its rights to include its Registrable Securities in a
registration effected by the Company pursuant to Section 2.1(b) of the
Registration Rights Agreement if such registration is a Required Registra tion
made in accordance with the immediately preceding sentence or if either Lead
Stockholder is including Registrable Securities in such registration. Each of
the Lead Stockholders agrees for the benefit of the other Lead Stockholder
that it will not, without the approval of the other Lead Stockholder, include
its Registrable Securities in a
12
registration effected by the Company pursuant to Section 2.1(b) of the
Registration Rights Agreement during the three year period following the date
of this Agreement.
(b) Notwithstanding anything else in this Agreement or in the
Registration Rights Agreement to the contrary, in the event that the Permitted
Beacon Voting Trust Transfer occurs, none of the shares of Preferred Stock or
Common Stock that are received by the beneficiaries of the Beacon Voting Trust
in connection therewith or are issued or issuable upon conversion of such
shares or shares received upon such conversion shall be Registrable
Securities, other than those shares that are held by the Beacon Stockholder or
by a Beacon Affiliate and remain subject to the transfer, conversion and other
restrictions of this Agreement. The Beacon Stockholder, in its capacities as
the trustee and initial beneficiary of the First Beacon Voting Trust and the
Second Beacon Voting Trust, hereby consents and agrees to be bound by the
provisions of this Section 5.1(b) on behalf of itself and all future
beneficiaries of the Beacon Voting Trust and acknowledges and agrees that it
has the sole responsibility to notify all such beneficiaries or transferees of
Shares owned by the Beacon Voting Trust of the terms of this Section 5.1(b)
and the fact that they are bound thereby.
Article 6. Miscellaneous
Section 6.1. Further Actions; Cooperation. Each of the Stockholders
agrees to use its reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable in
connection with the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, each of the Stockholders (i) acknowl
edges that the Stockholders will prepare and file with the Securities and
Exchange Commission filings under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the "Exchange
Act"), including under Section 13(d) of the Exchange Act, relating to their
beneficial ownership of the Securities and (ii) agrees to use its reasonable
efforts to assist and cooperate with the other parties in promptly preparing,
reviewing and executing any such filings under the Exchange Act, including any
amendments thereto.
Section 6.2. Successors and Assigns. Except as otherwise provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. No Stockholder may assign any of
its rights hereunder to any Person other than a transferee that has complied
in all respects with the requirements of this Agreement (including, without
limitation, Section 3.4 hereof). If any transferee of any Stockholder shall
acquire any Shares or Common Stock issuable upon conversion of such Shares, in
any manner, whether by operation of law or otherwise, such shares shall be
held subject to all of the terms of this Agreement, and by taking and holding
such shares such Person
13
shall be entitled to receive the benefits of and be conclusively deemed to
have agreed to be bound by and to comply with all of the terms and provisions
of this Agreement.
Section 6.3. Representatives. Each of the Stockholders hereby
designates and appoints (and each Third Party Transferee of each such
Stockholders is hereby deemed to have so designated and appointed) the Lead
Stockholders to serve as the representatives of each such Stockholder to
administer and make determinations as to matters arising or contemplated by
the Securities Purchase Agreement and related documentation, including without
limitation indemnification obligations, disputes and other rights and
obligations. Each of the Stockholders hereby agrees and acknowledges that the
Lead Stockholders shall be the only persons authorized to take any action so
required, authorized or contem plated by the Securities Purchase Agreement by
each such person. Each such person hereby authorizes (and each such Third
Party Transferee shall be deemed to have authorized) the other parties hereto
to disregard any notice or other action taken by such person pursuant to the
Securities Purchase Agreement except for the Lead Stockholders. The other
parties hereto are and will be entitled to rely on any action so taken by the
Lead Stockholders.
Section 6.4. Amendment; Modification; Waiver. No provision of this
Agree ment may be amended, modified or waived except by an instrument in
writing executed by the Majority Stockholders at the time of such proposed
amendment, modification or waiver; provided, however, that, so long as either
of the Lead Stockholders and their respective Affiliates beneficially own at
least 20% of the shares of Common Stock (including shares of Common Stock
issuable upon conversion of securities convertible, exchangeable or
exercisable for shares of Common Stock) initially owned by such Stockholders
at the closing of the transactions contemplated by the Securities Purchase
Agreement, this Agreement may not be amended or modified without such Lead
Stock holder's consent.
Section 6.5. Notices. All notices and other communications provided
for hereunder shall be in writing by hand delivery, telex, telecopier, or any
courier guarantee ing overnight delivery (i) if to the Stockholders as of the
date hereof, the address set forth next to the Stockholder's name on the
signature pages hereof, with a copy to Xxxxxxx X. Xxxx, Esq., telecopier
number (000) 000-0000, and (ii) with respect to each Stockholder who becomes
such after the date hereof, the address of such Stockholder in the stock
records of the Company. All such communications shall be deemed to have been
given or made when so delivered by hand or sent by telecopy, or three business
days after being so mailed.
Section 6.6. Entire Agreement: Governing Law.
(a) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties
14
hereto with respect to the subject transactions contemplated hereby and
supersede all prior oral and written agreements and memoranda and undertakings
among the parties hereto with regard to this subject matter.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CON STRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF XXXX XXXX (WITHOUT GIVING EFFECT TO THE CHOICE
OF LAW PRINCIPLES
THEREOF).
Section 6.7. Injunctive Relief. The Stockholders acknowledge and
agree that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to, an injunction, restraining order or other equitable relief from
any court of competent jurisdiction, restraining any Stockholder from
committing any violations of the provisions of this Agreement.
Section 6.8. Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the Shares
of Common Stock; New Issuances. The provisions of this Agreement shall apply,
to the full extent set forth herein with respect to the Shares and Common
Stock and Preferred Stock issuable upon conversion of such Shares and to any
and all equity or debt securities of the Company or any successor or assign of
the Company (whether by merger, consolidation, sale of assets, or otherwise)
which may be issued in respect of, in exchange for, or in substitution of,
such equity or debt securities and shall be appropriately adjusted for any
stock dividends, splits, reverse splits, combinations, reclassifications,
recapitalizations, reorganizations and the like occurring after the date
hereof.
Section 6.10. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15
Section 6.11. Jurisdiction; Forum. With respect to any suit, action
or proceeding ("Proceeding") arising out of or relating to this Agreement,
each of the parties hereto hereby irrevocably:
(a) submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York, the United States
District Court for the District of Delaware, or any state court located in the
State of Delaware, County of Newcastle (the "Selected Courts") and waives any
objection to venue being laid in the Selected Courts whether based on the
grounds of forum non conveniens or otherwise;
(b) consents to service of process in any Proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, or by
recognized international express carrier or delivery service, to such party at
its respective address referred to in Section 6.4 hereof; provided, however,
that nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by law; and
(c) waives, to the fullest extent permitted by law, any right it may
have to a trial by jury in any Proceeding.
Section 6.12. Termination. Upon the mutual consent of all of the
parties hereto or at such earlier time as each of the Lead Stockholders and
its respective Affiliates ceases to collectively beneficially own at least 10%
of the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares
of Common Stock) beneficially owned by such Lead Stockholder and its
Affiliates immediately following the closing of the transactions contemplated
by the Securities Purchase Agreement, this Agreement shall terminate and be of
no further force and effect.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
APOLLO REAL ESTATE INVESTMENT
FUND IV, L.P.
By: Apollo Real Estate Advisors IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc., its General
Partner
By:_________________________________________
Name:
Title:
Address: c/o Apollo Real Estate
Management IV, L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:_________________________________________
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
17
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:_________________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:_________________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXXXX X. XXX CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:_________________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:_________________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc.,
its General Partner
By:_________________________________________
Name:
Title:
Address: 0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
BCP VOTING, INC., as Trustee for the Beacon
Capital Partners, L.P. Voting Trust
By:_________________________________________
Name:
Title:
Address: 0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
STRATEGIC REAL ESTATE INVESTMENTS I,
L.L.C.
By:_________________________________________
Name:
Title:
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
AIF/THL PAH, LLC
By:_________________________________________
Name:
Title:
Address: c/o Apollo Management IV, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners,
its General Partner
By:_________________________________________
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates L.P.,
a general partner
By: MSPS/DP, Inc., its general partner
By:_________________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
By: CMS 1995 Investment Partners, L.P.,
a general partner
By: CMS 1995, Inc., its general partner
By:_________________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
CMS CO-INVESTMENT
SUBPARTNERSHIP, a Delaware general
partnership
By: CMS Co-Investment Partners, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates,
L.P., a Delaware limited
partnership
By: MSPS/Co-Investment, Inc.,
a Delaware corporation
By:____________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
By: CMS 1997 Investment Partners, L.P.,
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware
corporation
By:__________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
By: CMS Co-Investment Partners I-Q, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment Associates,
Inc., a Delaware corporation
By:___________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
By: CMS 1997 Investment Partners, L.P.
a Delaware limited partnership
By: CMS 1997, Inc.,
a Delaware corporation
By:__________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
GUAYACAN PRIVATE EQUITY FUND
LIMITED PARTNERSHIP
By:_________________________________________
Name:
Title:
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
CKE ASSOCIATES LLC
By:_________________________________________
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
PW HOTEL I, LLC
By:_________________________________________
Name:
Title:
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
THE DARTMOUTH TRUST
By:_________________________________________
Name:
Title:
Address:
THE BONNYBROOK TRUST
By:_________________________________________
Name:
Title:
Address:
THE FRANKLIN TRUST
By:_________________________________________
Name:
Title:
Address:
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:_________________________________________
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX X. XXX FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
By:____________________________________
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Pursuant to the power of attorney
executed by the persons listed on
Schedule I hereto in favor of, and
delivered to, the undersigned
____________________________________________
Xxxx X. Xxxxxxxx
Attorney-in-fact
Schedule I
State Street Bank & Trust Company as Trustee
of the 1997 Xxxxxx X. Xxx Nominee Trust
Xxxxx X. Xxxxxxx
The 1995 Harkins Gift Trust
Xxxxx X. Xxxxxx
X. Xxxxxx Xxxx
Xxxxxxxx Family Limited Partnership
Xxxxxxx X. XxXxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxxx Family Limited Partnership
Xxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx Xxx 1988 Irrevocable Trust
Xxxxxxx Xxxxxxx Xxx
Xxxxxxx X. Xxxxxx as Custodian for Xxxxx Xxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
XX. Xxxxxxx Xxxxx
0258163.17-New YorkS6A
