EXHIBIT 4.3
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AMENDMENT TO RIGHTS AGREEMENT
Amendment No. 3 to Shareholder Rights Agreement, dated as of May 18,
2005 (this "Amendment"), between WYNDHAM INTERNATIONAL, INC., a Delaware
corporation (the "Company"), and AMERICAN STOCK TRANSFER AND TRUST COMPANY, a
banking company organized under the laws of New York, as Rights agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Shareholder
Rights Agreement, dated as of June 29, 1999, as amended (the "Rights
Agreement");
WHEREAS, there is not as of the date hereof any Acquiring Person (as
defined in the Rights Agreement) and there has not been a Distribution Date (as
defined in the Rights Agreement);
WHEREAS, no Triggering Event (as defined in the Rights Agreement), has
occurred;
WHEREAS, pursuant to Section 5.10 of the Recapitalization and Merger
Agreement, dated as of April 14, 2005 by and among Apollo Investment Fund IV,
L.P., Apollo Real Estate Investment Fund IV, L.P., AIF/THL PAH LLC, BCP Voting
Inc., as Trustee for the Beacon Capital Partners Voting Trust, Xxxxxx X. Xxx
Equity Fund IV, L.P., Xxxxxx X. Xxx Foreign Fund IV, L.P., Xxxxxx X. Xxx Foreign
Fund IV-B, L.P. , WI Merger Sub, Inc., and the Company (as the same may be
amended from time to time, the "Merger Agreement"), immediately prior to the
Effective Time (as defined in the Merger Agreement), the Rights Agreement shall,
automatically and without any further action of any of the parties to the Merger
Agreement or of the Board of Directors of the Company, and without the payment
of any amounts to the holders of any Shares (as defined in the Merger
Agreement), terminate and shall cease to have any further force or effect); and
WHEREAS, the Company desires to amend the Rights Agreement in
accordance with Section 27 thereof;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth in the Rights Agreement and this Amendment, the parties hereby agree
as follows:
Section 1. AMENDMENT TO DEFINITION OF "ACQUIRING PERSON." Section 1(a) of the
Rights Agreement is amended to add the following sentence after the last
sentence thereof: "Notwithstanding anything in this Agreement to the contrary,
neither WI Merger Sub, Inc. nor any of the Investors or any of their Affiliates
shall become an Acquiring Person as a result of the execution of the Merger
Agreement, or consummation of the transactions contemplated thereby."
Section 2. AMENDMENT TO DEFINITION OF "TRIGGERING EVENT." Section 1(xx) of the
Rights Agreement is amended to add the following sentence after the last
sentence thereof: "Notwithstanding anything in this Agreement to the contrary, a
Triggering Event shall not be deemed to have occurred as a result of (i) the
consummation of the merger contemplated by the Merger Agreement, (ii) the
execution of the Merger Agreement, or (iii) the consummation of the other
transactions contemplated by the Merger Agreement, or any of the foregoing in
combination."
Section 3. AMENDMENT TO SECTION 7(A). Section 7(a) of the Rights Agreement is
amended by deleting the word "or" and adding a comma immediately preceding
clause (iii) and by deleting the words "(the earlier of (i), and (ii) and (iii)
being herein referred to as the "EXPIRATION DATE")" at the end of clause (iii)
and adding the following, at the end of clause (iii): ", or (iv) immediately
prior to the Effective Time of the Merger (the earlier of (i), (ii), (iii) and
(iv) being herein referred to as the "EXPIRATION DATE"). For purposes of clause
(iv) above, "Effective Time of the Merger" shall mean such time as a certificate
of merger (the "Merger Certificate") is duly filed with the Secretary of State
of the State of Delaware pursuant to Section 1.1(b) of the Merger Agreement or
at such subsequent date or time as is specified in the Merger Certificate."
Section 4. TERMINATION OF MERGER AGREEMENT. If for any reason the Merger
Agreement is terminated and the merger contemplated thereby is abandoned, then
this Amendment shall be of no further force and effect and the Rights Agreement
shall remain exactly the same as it existed immediately prior to execution of
this Amendment.
Section 5. RIGHTS AGREEMENT AS AMENDED; EFFECTIVENESS. The term "Agreement" as
used in the Rights Agreement shall be deemed to refer to the Rights Agreement as
amended hereby. The foregoing amendments shall be effective as of the date
hereof and, except as set forth herein, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
Section 6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 7. GOVERNING LAW. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.
Section 8. DESCRIPTIVE HEADINGS. Descriptive headings of the several Sections
of this Amendment are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first above written.
Attest: WYNDHAM INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxx
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Name: Xxxx Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Senior Vice President Title: Executive Vice President
Attest: AMERICAN STOCK TRANSFER
AND TRUST COMPANY
as Rights Agent
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President Title: Vice President
